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US to allies: "Suck it, haterz!"
December 1, 2007 4:46 PM   Subscribe

US has right to kidnap any defendant, anywhere, anytime, says it's UK lawyer. Until now it was commonly assumed that US law permitted kidnapping only in the “extraordinary rendition” of terrorist suspects. The American government has for the first time made it clear in a British court that the law applies to anyone, British or otherwise, suspected of a crime by Washington.

Until now it was commonly assumed that US law permitted kidnapping only in the “extraordinary rendition” of terrorist suspects. The American government has for the first time made it clear in a British court that the law applies to anyone, British or otherwise, suspected of a crime by Washington.
Alun Jones QC, representing the US government replied that it was acceptable under American law to kidnap people if they were wanted for offences in America. “The United States does have a view about procuring people to its own shores which is not shared,” he said.

He said that if a person was kidnapped by the US authorities in another country and was brought back to face charges in America, no US court could rule that the abduction was illegal and free him: “If you kidnap a person outside the United States and you bring him there, the court has no jurisdiction to refuse — it goes back to bounty hunting days in the 1860s....That is United States law.” "
posted by dash_slot- (75 comments total) 2 users marked this as a favorite

 
But regardless of whether they have committed an offense in the US when they get back, all parties involved would still be liable for prosecution under the host nations law, wouldn't they? So a nasty little 'You didn't extradite him when we asked, so we're not handing over our law enforcement kidnappers for trial' diplomatic issue.

They'd have to be really, really sure before they opened up that little can of worms, surely.
posted by Brockles at 4:58 PM on December 1, 2007


Of course the kidnapping is a felony in the country where it happens.
So, law enforcement officials of that country could then go to the US and kidnap the kidnappers. (Or at least their superiors, which could then be subjected to some waterboarding for information extraction.) And back on their soil, those law enforcement officials could in turn be kidnapped by US agents, thus resulting in a never-ending spiral of kidnapping and counter-kidnapping.
posted by sour cream at 5:05 PM on December 1, 2007 [3 favorites]


2003 called. They want their outrage back.
posted by pompomtom at 5:10 PM on December 1, 2007


Brockles: Not everything illegal in the US is illegal elsewhere though.

This 'authority to kidnap' is separate from so-called 'extraordinary rendition', which, as we know, has had a fair number of tragic consequences, for individuals as well as the reputation of US justice.

sour cream: yes, the road to hell is paved with unintended consequences. Or something.
posted by dash_slot- at 5:10 PM on December 1, 2007


Forget the outrage this is an established piece of US law. You just have to get them to the courthouse. How they get there bears no importance.
posted by Rubbstone at 5:13 PM on December 1, 2007


Of course the kidnapping is a felony in the country where it happens.

Yes, and 26 Americans will go on trial in Italy over the kidnapping of a terror suspect under the auspices of the CIA.
posted by delmoi at 5:13 PM on December 1, 2007 [1 favorite]


(Well, they probably won't actually show up for their trials, but still)
posted by delmoi at 5:14 PM on December 1, 2007


There was a scandal in Italy over CIA agents kidnapping terror suspects.

Wasn't this what the Panama invasion was about? This isn't anything new.
posted by empath at 5:18 PM on December 1, 2007


Am I imagining it, or do broadsheets occasionally make subtle jokes using the last line of a piece?
Shami Chakrabarti, director of the human rights group Liberty, said: “This law may date back to bounty hunting days, but they should sort it out if they claim to be a civilised nation.”

The US Justice Department declined to comment.
posted by MetaMonkey at 5:19 PM on December 1, 2007


I don't think I'd ever call the U.S. "civilized" on anything approaching an absolute scale. It's more civilized than a bunch of other places, though; it's not as if 'civilized' and 'uncivilized' is necessarily black and white.

"Rough justice" has a long history in the U.S., and it's deeply embedded in the culture. While we may claim on paper to espouse a system that would set nine guilty men free to keep one innocent man out of jail, in reality the public tends to support bending the rules in order to produce the "more just" outcome. (Experience also suggests that the U.S. and European man-on-the-street conception of a "just" outcome may differ somewhat...)
posted by Kadin2048 at 5:41 PM on December 1, 2007


It's high time someone invaded the US and spread working democracy and modern, progressive ideas there.
posted by fire&wings at 5:47 PM on December 1, 2007 [5 favorites]



Brockles: Not everything illegal in the US is illegal elsewhere though.


Of course not. But kidnap is pretty universally looked down on, is it not? Especially in the UK where the context of this story is mainly raised from. They would most certainly be subject to criminal proceedings in that case. Well. Unless it turned into some sort of political gangfuck that meant the US held us over a barrel for some other thing to make us drop it...

You know. Just maybe one rule applies to one and not to the others.
posted by Brockles at 6:01 PM on December 1, 2007


You folks are missing something: this means the US has just declared that it has the right to enforce its own laws in other countries, with or without that country's agreement, permission, or cooperation.

This reaches far beyond kidnapping and into violation of territorial integrity... since when do we have the right to unilaterally enforce our laws outside our own borders?
posted by Malor at 6:41 PM on December 1, 2007 [7 favorites]


Hmm. Is there a bounty on Henry Kissinger anywhere, still?
posted by aeschenkarnos at 6:42 PM on December 1, 2007 [2 favorites]


You folks are missing something: this means the US has just declared that it has the right to enforce its own laws in other countries, with or without that country's agreement, permission, or cooperation.

No, I think you're missing something. What's being said here is that if someone is kidnapped in another country, the kidnapping is not illegal in the eyes of a U.S. court, so a U.S. court would not free him.

In other words, if I kidnap you in the UK and make it back to the U.S., you can't run to a U.S. judge and say, "Yeah, but Cool Papa Bell broke the law in the UK!" Because the answer, in the eyes of U.S. law, is essentially be, "So? You're not in the UK right now."

On the other hand, if I kidnap you in the UK and get busted on the way to Heathrow, Scotland Yard would like to have a few words with me.

As it says in the article:

He said that if a person was kidnapped by the US authorities in another country and was brought back to face charges in America, no US court could rule that the abduction was illegal and free him... emphasis mine
posted by Cool Papa Bell at 6:49 PM on December 1, 2007


Cool papa bell:
your position and that of Malor's are not mutually exclusive, the way I read them. Fundementally, for any US law that it wishes to enforce, the FBI/NSA/CIA or whoever can kidnap a UK citizen in the UK or wherever, and enforce the US law when it has returned the alleged offender back to the States. In that respect, the US has just declared that it has the right to enforce its own laws in other countries. Your point does not contradict that, does it?

Well. Unless it turned into some sort of political gangfuck that meant the US held us over a barrel for some other thing to make us drop it...

You know. Just maybe one rule applies to one and not to the others.
posted by Brockles at 1:01 AM

I don't know what you are trying to say.
posted by dash_slot- at 7:02 PM on December 1, 2007


No, I think you're missing something. What's being said here is that if someone is kidnapped in another country, the kidnapping is not illegal in the eyes of a U.S. court, so a U.S. court would not free him.

The linked article is not about some random dude kidnapping people in countries outside the US to be tried in the US, it is about the US government kidnapping people in other countries. Those other countries have laws against kidnapping and the US government is making it clear that they will ignore those laws as they see fit. Essentially, this is an expansion of US law into other countries. In other words, the bully on the block makes the rules.
posted by ssg at 7:10 PM on December 1, 2007


if i were The Pirate Bay, this would not let me sleep well at night.
posted by empath at 7:14 PM on December 1, 2007


U.S. v. Alvarez-Machain, 504 U.S. 655, established the proposition that if American agents kidnapped a foreigner abroad, the circumstances of the kidnapping could not be raised as a defense in court. If there is an extradition treaty between the two countries, as there was in Alvarez-Machain, then the foreign country whose sovereignty was violated was free to make requests for the extradition of the American agents who broke the law. The United States already announced to Italy and Germany that it has no intention of extraditing anyone involved in rendition, in violation of the treaties we have with both of those nations that require us to either extradite or, at our option, try the accused in our domestic courts.

The United States is becoming a lawless country, ruled by men instead of laws. The sooner we accept this the sooner we can do something about it.
posted by 1adam12 at 7:17 PM on December 1, 2007 [3 favorites]


And back on their soil, those law enforcement officials could in turn be kidnapped by US agents, thus resulting in a never-ending spiral of kidnapping and counter-kidnapping.

{see also: Berlin}
posted by MiltonRandKalman at 7:24 PM on December 1, 2007


In other words, the bully on the block makes the rules.

What are you, some kind of commie? Get on board with the winning team.
posted by Blazecock Pileon at 8:04 PM on December 1, 2007 [1 favorite]


In Ker v. Illinois, 199 U.S. 436 (1886) - - defendant from the U.S. kidnapped from Peru and returned to the United States. Addressing Ker's due process challenge, the United States Supreme Court held that "such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court."
posted by millardsarpy at 8:29 PM on December 1, 2007


Well. Unless it turned into some sort of political gangfuck that meant the US held us over a barrel for some other thing to make us drop it...

You know. Just maybe one rule applies to one and not to the others.

I don't know what you are trying to say.


Just preempting the fact that, when this 'right' to act as they personally see fit - regardless of whether they happen to be within their own justice system - is exercised, that the might of the (as accurately pointed out) bully to enforce economic/political pressures will inevitably be brought into effect to mitigate or negate the issue to their (the bully's) benefit.

He who arms himself with the most economic might/nuclear weapons, seems to have the trump card and has let it get a leetle bit to their fat, self-obsessed, head.
posted by Brockles at 8:42 PM on December 1, 2007


This is quite an extraordinary rendition of reality we are experiencing, no?
posted by Horken Bazooka at 9:11 PM on December 1, 2007 [1 favorite]


"I don't think I'd ever call the U.S. "civilized" on anything approaching an absolute scale. It's more civilized than a bunch of other places, though; it's not as if 'civilized' and 'uncivilized' is necessarily black and white."

We have Civilization Lite over here.
posted by muppetboy at 9:32 PM on December 1, 2007 [2 favorites]


It's less filling.
posted by muppetboy at 9:33 PM on December 1, 2007 [1 favorite]


This reaches far beyond kidnapping and into violation of territorial integrity... since when do we have the right to unilaterally enforce our laws outside our own borders?

American Exceptionalism: the idea that the American people (and hence our political leaders) have, unto themselves, the sole moral and legal authority to determine what is right and wrong throughout the world. It's been one of the bedrocks of our foreign policy since....I dunno.....the Mexican-American war at the latest.

Its useless to try and point out that we would be enraged if somebody tried doing this on our soil. "Of course we have a right to be enraged," they would say, "We're Americans. Nobody pulls that shit with us!" It's like trying to convince an 18th century French aristocrat to have mercy on his peasants. "Why? Aren't I richer than them? Aren't they poorer than I? Why should I be nice to them?"

Of course, at this rate, the guillotine can't be far off for us...
posted by Avenger at 10:04 PM on December 1, 2007 [5 favorites]


In Ker v. Illinois, 199 U.S. 436 (1886) - - defendant from the U.S. kidnapped from Peru and returned to the United States.

millardsarpy has it exactly right. I have no idea who the fuck was "Until now it was commonly assumed that US law permitted kidnapping only in the “extraordinary rendition” of terrorist suspects," but it has been the known law in the United States of America for 122 years.

This is black-letter criminal procedure, drilled into the head of every law student in the country. The Ker case is well-known. This is alarmist journalism. It isn't a big surprise.
posted by Ironmouth at 10:42 PM on December 1, 2007 [2 favorites]


This is black-letter criminal procedure, drilled into the head of every law student in the country. The Ker case is well-known. This is alarmist journalism. It isn't a big surprise.

It's still fundamentally wrong though, and therefore worthy of attention.

How would you feel if, say, China kidnapped US citizens on US soil and brought them before court in China? Would you be OK with that? (I'm assuming you are American.)
posted by sour cream at 12:26 AM on December 2, 2007


america sucks more every day.
posted by quarter waters and a bag of chips at 1:47 AM on December 2, 2007


America doesn't suck - it blows.
posted by A189Nut at 2:51 AM on December 2, 2007


This is black-letter criminal procedure, drilled into the head of every law student in the country. The Ker case is well-known. This is alarmist journalism. It isn't a big surprise.

I don't know if 'alarmist journalism' is fair - perhaps the Times journalist just assumed that modern democracies don't make a habit of abducting people from the streets of friendly nations in peacetime, and so was rather shocked to find they do. Had I been in a court where this was raised as a defence of the actions of a state I think I may have raised an eyebrow too.

At any rate, this isn't just shock that rendition appears to be an accepted tenent of your criminal law - all countries have probably got some mad criminal laws stuck up in the attic - but that it appears to be an accepted operational practice.
posted by calico at 3:49 AM on December 2, 2007


Damn it.

t-minus 13 months or some crap.
posted by Atreides at 7:36 AM on December 2, 2007


US to world: Spread your freedom cheeks!
posted by Artw at 9:09 AM on December 2, 2007 [2 favorites]


The Mossad abducted Adolf Eichmann in Argentina in 1960 over the protests of the Argentinean government.

The United States already announced to Italy and Germany that it has no intention of extraditing anyone involved in rendition

Then I'm sure we wouldn't mind if they kidnapped the perpetrators in the US and took them to Europe for trial.
posted by kirkaracha at 9:19 AM on December 2, 2007


In that respect, the US has just declared that it has the right to enforce its own laws in other countries. Your point does not contradict that, does it?

Yes, my point does precisely that. This is a very narrow point, but an important one. Another way of looking at it would be to say the US has declared intent to violate the laws of other countries in order to return someone to the US to stand trial for its breaches of its laws, and that the violation of some other law somewhere else is not relevant to the original breach in any way.

This is not "enforcing our laws somewhere else." If that were the case, it'd be much easier to toss someone into a British jail for a violation within the U.S. No, this is dragging someone back from somewhere else in order to enforce laws here.

Again, that's why I made my Heathrow analogy. Just because the kidnapping would be legal in the eyes of a U.S. court doesn't make it legal in the eyes of a British court. Conversely, just because a British court says something, it doesn't mean a U.S. court has to abide, and vice versa.

This is why Roman Polanski fled to France. French authorities wouldn't bother with his crimes in the U.S.

This is also why we're talking about bounty hunters. Don't you recall the case of "Dog" the bounty hunter getting busted by Mexican police for trying to grab someone down there? Dog didn't do any time in the U.S. for that, and had he made it over the border, Mexican authorities wouldn't have been able to do anything.
posted by Cool Papa Bell at 10:23 AM on December 2, 2007


Oh well if Dog the bounty hunter does it then it must be A-OK.
posted by Artw at 10:26 AM on December 2, 2007 [2 favorites]


How to win friends and influence people, USA. Guh.
posted by five fresh fish at 10:33 AM on December 2, 2007


One would think the USA's delusions of manifest destiny would have been crushed by the sheer repeated incompetence demonstrated by its government this past, oh, fifty or so years. I mean, ffs, if you can't run your own bloody country successfully, why in the hell would you think you can run the rest of the world?
posted by five fresh fish at 10:36 AM on December 2, 2007


What others have said -- this is nothing new. Ker is taught in Canada as a key difference between U.S. and Canadian law.

the violation of some other law somewhere else is not relevant to the original breach in any way.

So the theory goes. But it's weak sauce, frankly. a) the same can be said for countless illegal evidence gathering tactics. We exclude such evidence not because it is relevant to the original breach but because we as a society have decided to provide a heavy disincentive for such behaviour because it violates our conept of justice. The same reasoning could be applied here, but isn't. b) other states with solid legal regimes (the one I'm most familiar with being Canada) do not follow this line. In Canada, how the accused comes before the court is as important as how the evidence does. Why would it be otherwise?

But the U.S. has a long-standing history of rationalizing the results it wants. And hey, you're working fast on eroding limits on how evidence gets to court, too.

Cool Papa Bell -- this is not a jurisdiction issue.
posted by dreamsign at 11:02 AM on December 2, 2007 [1 favorite]


The real point here is this: "International Law" is a fiction. It doesn't really exist; nations do whatever the hell they want and can get away with, which generally depends on how powerful they are. Full stop.

In order to have 'law,' you need a way of enforcing it. Individuals are subject to laws because they live within communities that can sanction them. To talk about laws without understanding that they are entirely dependent on this enforcement structure is naive.

With nations, at best all you can do is get a bunch of nations together and agree to collectively sanction anyone who steps out of line, hoping that together you'll be more powerful than any single nation acting alone. However, this is demonstrably not the case all the time.

Here, we're just seeing this in practice. The U.S. can go and kidnap people from Italy, but the Italians probably won't try the reverse, because of the imbalance of power (political, economic, and military, although mostly the second). Thus the U.S. kidnaps, and Italy writes strongly-worded letters and conducts trials in absentia.

It would be more interesting to consider such behavior between two more equally-matched countries -- say, for instance, the U.S. and China. I doubt the U.S. would try the same thing in China, because there's a good chance that China would try the same thing in the U.S., and the U.S. isn't exactly in a position to tell China what for.

The only recourse smaller countries have against this sort of behavior would be to band together and agree to sanction the U.S. in some way that would actually hurt, if the U.S. were to do this in any signatory country. (Via, say, trade sanctions or tariffs.) But it would only be effective insofar as it was a serious threat.

The relationships between sovereign nations have always essentially boiled down to might-makes-right, and always will as long as they are truly sovereign. From time to time this is forgotten in favor of moral platitudes, but when disagreements occur, it inevitably rears its ugly head.
posted by Kadin2048 at 11:25 AM on December 2, 2007 [1 favorite]


Oh well if Dog the bounty hunter does it then it must be A-OK.

Gotta use the simple analogies for the folks that insist on rampantly conflating issues and running off complaining about Teh Man.
posted by Cool Papa Bell at 11:42 AM on December 2, 2007


Cool Papa Bell -- this is not a jurisdiction issue.

Heh. This is the very definition of a jurisdiction issue in the U.S.
posted by Cool Papa Bell at 11:43 AM on December 2, 2007


Gotta use the simple analogies for the folks that insist on rampantly conflating issues and running off complaining about Teh Man.

So would you be okay with the President and Vice President of the United States being kidnapped and brought before an international tribunal for their war crimes, yes or no? Or does the law only apply if you're on the winning team?
posted by Blazecock Pileon at 11:59 AM on December 2, 2007


From time to time this is forgotten in favor of moral platitudes...

The rest of us call that progress.
posted by stinkycheese at 12:08 PM on December 2, 2007


This is the very definition of a jurisdiction issue in the U.S.

No, it's not. This is about what limits domestic courts put in place to safeguard the administration of justice. And it is largely at this point a matter of convenient precedent.
posted by dreamsign at 12:17 PM on December 2, 2007


So would you be okay with the President and Vice President of the United States being kidnapped and brought before an international tribunal for their war crimes, yes or no? Or does the law only apply if you're on the winning team?

Again with the conflation of the issues, now with Special Dipshit Ad Hominem Pseudo-Godwin Flavor.

Sheesh. Can we not just focus?

But the answer to that hypothetical would be, while the U.S. courts sure would be pissed off at the World Court (or whoever was holding Mssrs. Bush and Cheney), but the World Court wouldn't have to listen. That's all that's happening here, ye jackasses. The attorney is saying U.S. courts don't have to abide by rules set by UK courts. And he's right. Period.

This is about what limits domestic courts put in place to safeguard the administration of justice.

And those limits say you must have jurisdiction in order to carry any legal weight. Courts in other countries don't have jurisdiction over courts in the U.S. Case closed.
posted by Cool Papa Bell at 12:25 PM on December 2, 2007


I can't stick around for this conversation, but I'd remind you that an actual jurisdictional claim would necessarily involve use of an extradition treaty, and a distinction would certainly be drawn between actions by government agents and that of hired thugs (sorry, "bounty hunters"). The courts make no such distinction on this issue.

Any talk of jurisdiction here is so much hand waving to rationalize the result.
posted by dreamsign at 12:26 PM on December 2, 2007


This is less a jurisdictional issue than a "America does what the hell it wants and fuck you, librul" issue.

However, I'm not despondent, because we Brits pulled the same shit when we were an imperial power all those years ago. By the time my son is posting telepathically on Metafilter 6.0, US power will have declined to such an extent that it has had its post-imperial crisis of identity and discovered that international law is a good thing after all.

I think Britain has started, in the last ten to fifteen years, to get past some of the pathologies that imperial power caused. Not all the way there, by any means, but Britain is starting to feel like a successful European nation, not a failed imperial hegemon.

It took a while, though.
posted by athenian at 12:50 PM on December 2, 2007


I'd remind you that an actual jurisdictional claim would necessarily involve use of an extradition treaty

You're perhaps misunderstanding the meaning of extradition, then. It seems as if you think the hypothetical person nabbed in the UK would be "extradited" back to the UK merely because a US federal agent nabbed him in the UK in violation of UK law. That's not at all what the US attorney in the article is talking about.

Extradition doesn't free you. Extradition is the process where a person is released to police custody in another country or to the control of another court in order to stand trial there. Since (presumably) we're talking about someone that hasn't broken any law in the UK, he's not going to be extradited there. There's no claim of extradition to be made here at all.

Again, what the attorney in the article is saying is ... the fact that a UK law gets broken is an irrelevant fact to a U.S. court. UK law doesn't apply in the U.S. That's all.
posted by Cool Papa Bell at 1:32 PM on December 2, 2007


Again with the conflation of the issues, now with Special Dipshit Ad Hominem Pseudo-Godwin Flavor.

Thanks for rationalizing your "answer" by invoking Godwin.
posted by Blazecock Pileon at 1:37 PM on December 2, 2007


Again, what the attorney in the article is saying is ... the fact that a UK law gets broken is an irrelevant fact to a U.S. court. UK law doesn't apply in the U.S. That's all.

It's not quite as cut and dried as that. The attorney is stating that a US court will not have any respect for any illegallity in that regard, and as such the legal system is entirely justified in breaking laws in other countries to bring people back for justice in the US.

This total lack of respect for other countries laws when the US interests are considered supremely important is the crux of the issue. They not only won't consider the illegality of the detention/abduction on foreign soil, they also don't even recognise it as illegal per se.

Many, many countries sneak into foreign countries and nab people for illegal questioning. They at the very least try and do it secretively as it is known to be illegal. They also try and keep it secret after the fact because they know they have done wrong. The US is stating, essentially, that as long as they don't get caught, then they (the US) has done nothing wrong at all, as it isn't illegal in a US court to do what they did, even though it was done in a foreign country.

THAT is the issue, and the height of arrogance.
posted by Brockles at 1:48 PM on December 2, 2007


This also makes a mockery of the extradition system. It was created precisely for the reason the US is now proclaiming it has a right to sidestep.

It is an international agreement between countries to allow Country A to request, diplomatically, of Country B that a person in Country B is wanted for a crime of such magnitude that Country A thinks is worthy of asking the host country to expel the individual under controlled circumstances - ie throw them out, but throw them our way.

The US now say they don't need to bother, they'll just grab the person and they've done nothing wrong.
posted by Brockles at 1:50 PM on December 2, 2007


I'd remind you that an actual jurisdictional claim would necessarily involve use of an extradition treaty
Yes, what I understand by dreamsign's phrase is that country A claims a crime has been committed in their jurisdiction, and could country B, as per their mutually agreed extradition treaty, please arrest the culprit and return them to country A?
Nowhere does dreamsign assume extradition = freedom. Why do you think that?

It seems as if you think the hypothetical person nabbed in the UK would be "extradited" back to the UK merely because a US federal agent nabbed him in the UK in violation of UK law. - cool papa bell

Wha?
Do you mean "It seems as if you think the hypothetical person nabbed in the UK would be "extradited" back to the UK US merely because a US federal agent nabbed him in the UK in violation of UK law."?

Also, it is 'jurisdictional', inasmuch as the US judge will say, 'the fact that an illegal kidnapping occurred on foreign soil is not in our jurisdiction - we will ignore it.' If the kidnapping occurred on US soil, it would be legal, too - as a US agent, or bounty hunter, is entitled to kidnap.

That's all that's happening here, ye jackasses. The attorney is saying U.S. courts don't have to abide by rules set by UK courts. And he's right. Period.

How articulate you are. Where do you practice law?

All of us know that no nation has to respect the laws of another country, sir. Do we have to have whole swathes of treaties for each and every case? Well, maybe we do. But the US will not respect that either: a US agent wanted on kidnapping charges will not be extradited (to Italy, for example). Is that equitable?

It's a mess, but, coolpapa bell, do you think it's ok?
posted by dash_slot- at 2:37 PM on December 2, 2007


Also, it is 'jurisdictional', inasmuch as the US judge will say, 'the fact that an illegal kidnapping occurred on foreign soil is not in our jurisdiction - we will ignore it.'

Which is exactly what I, and the attorney quoted in the article, were saying. Thanks.

a US agent wanted on kidnapping charges will not be extradited (to Italy, for example). Is that equitable?

Which is along the lines of what Blazecock was pseudo-Godwin-izing at, by saying Bush and Cheney should be extradited for war crimes. And the answer is ... yes, it's equitable. After all, treaties don't hold much legal weight and are flouted left and right. If the Italians staged some kind of operation to nab the US agent, the US would have the same claims as everyone else. Which is to say, not much. Italian courts don't have to listen to U.S. courts.

MeFites don't tend to realize that the law operates with its own sense of gravity, and considerations of "ethics" and "equity" and "what's right" and "do you think it's OK" don't often enter into it. So, there's opinions thrown hither and yon that conflate a technically correct statement by a US attorney with widespread, deliberate malfeasance and law-breaking.

Oh, there's plenty of malfeasance and law-breaking. This isn't an example of one, however. So, is it too much to ask that when we fling poo, we're at least throwing it in the right direction?
posted by Cool Papa Bell at 3:19 PM on December 2, 2007


See, here's conflation in action:

The attorney is stating that a US court will not have any respect for any illegallity in that regard...

So far, so good...

and as such the legal system is entirely justified in breaking laws in other countries to bring people back for justice in the US.

Bang. There's the conflation. First, it's not the "legal system" breaking laws. People break laws, not "the system." Secondly, it's not "entirely justified." That the act occurred in another country is simply not relevant to courts in the US. It is relevant to courts in that other country, which are still free to level charges.
posted by Cool Papa Bell at 3:25 PM on December 2, 2007


Also, it is 'jurisdictional', inasmuch as the US judge will say, 'the fact that an illegal kidnapping occurred on foreign soil is not in our jurisdiction - we will ignore it.'

Which is exactly what I, and the attorney quoted in the article, were saying. Thanks.


Again, I'm not sure that goes far enough. It's not that the court will ignore it (in respect to the case that is being tried) but it is my perception that the US doesn't accept that it is illegal anyway because THEY deem it legal. Regardless of where they are.

Yes, a factor not deemed an offense won't be taken into consideration, nor will crimes (usually) committed outside the jurisdiction of the court (ie fraud in the US is not taken into account in a UK fraud trial necessarily). That's totally normal.

Again, it's the fact that the US doesn't believe that it is committing a crime by kidnapping in another country for its own purposes. At least other countries, like I say, accept it is illegal and try and hide it.
posted by Brockles at 3:27 PM on December 2, 2007


First, it's not the "legal system" breaking laws. People break laws, not "the system."

Semantics. The Law Enforcement community or their representatives, then. Better? The representatives of the system personified. Of course the system cannot commit a crime, it is an abstract concept.

This is not conflation at all. You are focussing on one aspect, the people disagreeing with you on the wider statement and implications. We have all agreed that a US court will not take into an account a crime in another country.

What IS shocking, is that the US, because 'kidnapping someone on foreign soil' is not illegal in US law, they do not consider it illegal AT ALL. And are so justified in doing so and deem themselves to have the freedom and right to do just that.
posted by Brockles at 3:32 PM on December 2, 2007


First, it's not the "legal system" breaking laws. People break laws, not "the system."

People, such as FBI agents authorised by the Dept. of Justice, the Attorney General, et al, are part of the legal system, no? When said agents kidnap, are they suddenly not part of the 'legal system'? I think that's pedantic.

Blazecock was pseudo-Godwin-izing at, by saying Bush and Cheney should be extradited for war crimes.

O, I see why you are upset now - you didn't read him all that well.
posted by dash_slot- at 3:36 PM on December 2, 2007


I don't see what the problem is here-- it's not like agents of one country kidnapping people in another has ever been considered an act of war.
posted by Pyry at 3:54 PM on December 2, 2007


And those limits say you must have jurisdiction in order to carry any legal weight. Courts in other countries don't have jurisdiction over courts in the U.S. Case closed.

I love people that say case closed as if that really does mean we should all just shut up and go home. What this means is that US courts feel *they* have jurisidiction over UK courts. Someone commits an offence in the US, without ever entering US soil, or committing an offence in the UK. UK internet gambling company CEO's spring to mind. The US tries to extradite them, and fails. The person in question avoids flying through US airspace. So instead US law enforcement officials fly to the UK, kidnap this person, happily breaking UK law, but escape getting caught on the way to heathrow.

The US court then says, screw UK law, screw that you commited no offence in your own country, you're here now and you're going to jail; and those that committed an offence getting you here? We're not extraditing them back to the UK, as we protect our own.

The only solution for UK individuals is to refuse to do any business with US companies or citizens, either over the internet or with their subsidaries in the UK, as the natwest three have discovered. Otherwise it's a potential black bag over the head and god knows how long in jail for committing no crime in the UK., with the full knowledge the US will ignore the UK's court attempts to get you back.
The other option is for the UK government to grow a spine and deny entry to all US citizens, on the basis they might be US court sanctioned bounty hunters.

US courts are sanctioning US law-enforcement breaking the law in other countries, and then protecting them when they get home. Yes, it may be legal in the US, but it's a HUGE can of worms for reciprocity, especially when you're doing it to NATO allies.
posted by ArkhanJG at 4:04 PM on December 2, 2007


five fresh fish:
if you can't run your own bloody country successfully, why in the hell would you think you can run the rest of the world?

American optimism tends to assume that failure is due to simply "not trying hard enough", as opposed to any sort of serious error in our established beliefs, doctrines, or methods.
posted by PsychoKick at 4:08 PM on December 2, 2007 [2 favorites]


Which is along the lines of what Blazecock was pseudo-Godwin-izing at, by saying Bush and Cheney should be extradited for war crimes.

You're utterly shameless.
posted by Blazecock Pileon at 4:55 PM on December 2, 2007


This is black-letter criminal procedure, drilled into the head of every law student in the country. The Ker case is well-known. This is alarmist journalism. It isn't a big surprise.

It's still fundamentally wrong though, and therefore worthy of attention.


Here's the funny thing--people want it both ways--they want Brown v. Board of Education, but they don't want Ker v. Illinois. Call me a screaming liberal patriot, but I think that you don't get one without the other. Guess what, in every country on earth, there are judicial decisions that one disagrees with. But with a system where the Supreme Court gets the final say on constitutional interpretation, one gets decisions one disagrees with.

Finally, I have to say that in actuality, I agree with Ker v. Illinois. I want those who are alleged to have killed or maimed in the U.S. to be captured by U.S. government agents, regardless of what the rules are in other countries. Isreal has a provision that prohibits extradition of those who claim Jewish citizenship from being extradited. A killer in Maryland got a short sentence by fleeing to Maryland because Israel has a law that prevents extradition of those who claim Israeli citizenship. Welcome to actual reality where actual murder victims are screwed over by such provisions. People that police think have done wrong should be seized. If the police have done wrong, the courts should sort it out.

I don't want this abused by Bush, but the problem isn't with the ruling, it is with the current motherfucker who is occupying the office. Instead of trying to throw out every decision that dipshit takes advantage of, why not try to throw out the dipshit instead?

Let me be clear--this has nothing to do with extraordinary rendition, in which people who are seized have no recourse to due process. I am for full due process for every person arrested by the United States or a state of the United States. If people would focus their energies on that issue, Republicans like Cheney would be stopped in their tracks.
posted by Ironmouth at 5:32 PM on December 2, 2007 [1 favorite]


And those limits say you must have jurisdiction in order to carry any legal weight. Courts in other countries don't have jurisdiction over courts in the U.S. Case closed.

Really? Courts in the U.S. rule all of the time that cases belong in foreign courts all of the time. Try Piper Aircraft v. Reyno (1981) a decision written by the most liberal justice of all time, Thurogood Marshall.

Criminal procedure isn't about what is best for the political moment--its about the best decision for the process of criminal justice over the long run.
posted by Ironmouth at 5:38 PM on December 2, 2007


Piper v. Renyo
posted by Ironmouth at 5:39 PM on December 2, 2007


I think the bigger problem is that this opens the USA for a tit-for-tat retaliation. I daresay there are a lot of American politicians and corporate executives wanted for screwing-over all sorts of nations. Has the hate against Dole Fruit died down yet? How about Kissinger? The CEO of Nike?
posted by five fresh fish at 6:08 PM on December 2, 2007


@Ironmouth: I don't think that Piper v. Renyo establishes or even suggests that a foreign court has jurisdiction over a U.S. court but merely that a U.S. court can decide that it doesn't have jurisdiction over a particular issue or person.

It's not as though there's any sort of hierarchical relationship there. The foreign court isn't ordering the U.S. court to do anything; the U.S. court is simply deciding that they're not the correct venue for a particular action.

If anything, Piper is indicative that most -- or at least a few -- U.S. judges aren't interested in trying to apply U.S. law extraterritorially.

Anyway, I'm not arguing with your more general point made above, I agree with you quite completely. I just wanted to clarify that while U.S. courts do frequently decide that cases are out of their purview and belong somewhere else, that's different than saying than saying a foreign court has jurisdiction over something going on in the U.S. (Which you didn't say, but it's what the person you responded to said in the negative.)

And really it's jurisdiction that's the core of the whole issue. If someone is kidnapped from a foreign country and brought back to the U.S., the kidnapping occurred in the foreign country and thus is an issue for that country's courts. Hence, the U.S. court isn't compelled to consider it -- it's outside their jurisdiction. But if the person was wanted for a crime here in the U.S., that would be within the court's purview, and they're right to allow it to move forward, regardless of how they ended up back here.

This business isn't new; I strongly suspect, although I don't have any evidence for it, that extradition treaties were created to avoid exactly this sort of nastiness.
posted by Kadin2048 at 9:53 PM on December 2, 2007


It seems as if you think the hypothetical person nabbed in the UK would be "extradited" back to the UK merely because a US federal agent nabbed him in the UK in violation of UK law.

No, actually I've researched extradition matters in the course of my work. Extradition doesn't involve "nabbing" anybody.

If you think this is "jurisdictional" in the sense that the kidnapping is irrelevant because it occured on foreign soil, do you suppose a U.S. state court would decline to prosecute a person brought to the court by way of bounty hunter who had "captured" the person in another state of the U.S.? I don't think so. This is not about flouting the laws of other nations. This is about a lack of legal protections for those being brought to domestic courts, full stop.

If someone is kidnapped from a foreign country and brought back to the U.S., the kidnapping occurred in the foreign country and thus is an issue for that country's courts.

And this is exactly why bounty hunters earn their keep. If a government agent goes and kidnaps a person in another country, jurisdiction is involved -- the other way, in that the violated nation can engage its legal system to demand recourse. A bounty hunter working freelance? The U.S. isn't responsible. This talk of "the U.S. kidnapping people" is quite a different matter. Then it's all about naked power, as others have said.
posted by dreamsign at 11:03 PM on December 2, 2007


If someone is kidnapped from a foreign country and brought back to the U.S., the kidnapping occurred in the foreign country and thus is an issue for that country's courts. Hence, the U.S. court isn't compelled to consider it -- it's outside their jurisdiction.

You seem to treat this as a matter of course, but it certainly is not. It is precedent in the States, but it needn't have been that way, and isn't that way elsewhere in the West.
posted by dreamsign at 11:06 PM on December 2, 2007


It's been awhile since I've looked at U.S. law, but wrt my contention regarding state to state kidnapping to present an accused before a court, see: FRISBIE v. COLLINS, 342 U.S. 519 (1952).

1. That a person was forcibly abducted and taken from one state to another to be tried for a crime does not invalidate his conviction in a court of the latter state under the Due Process Clause of the Fourteenth Amendment. Ker v. Illinois, 119 U.S. 436 . P. 522.

2. A different result is not required by the Federal Kidnaping Act, even if the abduction was a violation of that Act. Pp. 522-523.

... This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444 , that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a "forcible abduction." 7 No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.


So yes, this is old news, inter- and intra-state. This issue is not that it is a foreign kidnapping, but merely that the court will take a defendant as he is presented. Of course the feds want to make it all about jurisdiction. That makes it all about what the suspects are alleged to have done and what right the U.S. has to take action as a result. It's not that other states wouldn't sing the same song. It's just that they have different safeguards regarding how the defendant comes before the court.
posted by dreamsign at 12:01 AM on December 3, 2007


(obviously, if I haven't made that clear, I am in no way an authority on U.S. law. But if my contention re: state to state kidnapping is no longer supported, I would appreciate some caselaw to that extent, if only to further educate myself on our southern neighbour's always fascinating if at times scary legal regime)
posted by dreamsign at 12:08 AM on December 3, 2007


Instead of trying to throw out every decision that dipshit takes advantage of, why not try to throw out the dipshit instead?

Because there's always another dipshit waiting in the wings?
posted by MikeKD at 12:54 AM on December 3, 2007


“...nations do whatever the hell they want and can get away with, which generally depends on how powerful they are.”

Extradition is already a bit of a negotiated process.
This is a matter of efficiency and diplomatic negotiation. Chances are whoever the authorities are, they’re going to know better than anyone in the U.S. what’s going on in their own backyard.
If I want Joe Terrorist, I can talk to Interpol or say, the French government if he’s hiding in France and say “Is Joe Terrorist over there?” If he is, under this situation, the French are more likely to withhold telling the U.S. - as a (potential or future) bargaining chip or for myriad reasons.
So if I want to know for sure I have to look around in France. Which means more of my own espionage community doing more legwork which means less time for other things.
Basically we had, before, France saying “Yeah, he’s here. We can pick him up. What are you going to do for us?” Now it’s “Who?” and we risk field agents going and looking for the guy - not only to whatever terrorist organization, but to the French government who might pick our spies up. Might even charge them. All that aside from the diplomatic incident that ensues if our extraction team does get picked up - or worse - resists.
Not to mention the quid pro quo (their guys shooting our cops) and the situation where the French authorities are cooperating with terrorist organization ‘x’ because they don’t think Joe Terrorist is a terrorist, or at least he hasn’t done anything to them, or it’s in their interests for some other diplomatic solution of theirs (e.g. we won’t give this guy to the U.S. you don’t bomb our airport). Or whatever the case may be.
It’s the difference between building a house and starting with step one being - make tools to make hammers, saws, etc. to cut down trees and cast nails vs. building a house using pre-cut lumber, factory made tools, etc.
You can write or rule this kind of law however you want in your own country. The practical question is not right or wrong. The practical question is how hard are you going to make it on your state department.
And this, definately, would make it harder.
Hell, you don’t even need to kidnap a given guy, if he’s wanted by the U.S., he’s in France, his own outfit kidnaps or kills him to keep him quiet but - and here’s the nifty part for all y’all lawyers - no one knows that, the French are going to think it’s us. We’re going to say it wasn’t (of course we would). And the terrorist organization furthers it’s goals that much more.
The intangibles and unintended consequences aren’t something you can do research on in a law book. Not everyone knows the same things, has the same data or can cite something. Events are often ambiguous and diplomatic negotiations often depend on things other than law. (It’s why there are things like y’know treaties.)
posted by Smedleyman at 1:17 PM on December 3, 2007 [1 favorite]


We have Civilization Lite over here.

All of the guilt, none of the pleasure.
posted by oaf at 11:25 AM on December 10, 2007


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