Steve C. Posner on United States v. Alvarez-Machain, 504 U.S. 655, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992)
United States v. Alvarez-Machain allowed the United States to bring a foreign national within U.S. jurisdiction for trial, thereby setting the foundation for “extraordinary rendition,” which has come to be understood as the secret transport of persons in U.S. custody to nations where they can be harshly interrogated. Steve C. Posner analyzes Alvarez-Machain and discusses its intersection with post-9/11 extraordinary rendition cases. He writes:
Alvarez-Machain, a Mexican citizen, was kidnapped from Mexico by Mexican nationals acting for the U.S. Drug Enforcement Agency and brought to the United States. Alvarez-Machain contended that his kidnapping violated the Extradition Treaty between the two countries. The federal trial court held that the kidnapping violated the treaty and, therefore, the court lacked jurisdiction to try the defendant, and the Ninth Circuit Court of Appeals affirmed. The Supreme Court reversed, holding that, even though the kidnapping may have violated the general principle of international law that one state may not exercise its police power on the territory of another, the Extradition Treaty itself did not prohibit such a violation. Additionally, the mere fact that a defendant was brought to the U.S. by forcible abduction does not divest a U.S. court from the jurisdiction to try him. . . .
. . . .
The Alvarez-Machain line of cases intersected the post-9/11 rendition cases in Khaled El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006), in which a German citizen claimed to have been kidnapped by the United States and shipped overseas to be tortured. He brought suit under, among other theories, the Alien Tort Statute [ATS], arguing that under Alvarez-Machain, he was entitled to sue for a violation of well-established international law. Alvarez-Machain did not govern El-Masri, which was dismissed as barred by the government’s assertion of state secrets privilege. However, had the privilege not applied, the Court might well have dismissed El-Masri on the ground that extraordinary rendition, like the kidnapping in Alvarez-Machain was not a claim recognized in 1789 and, therefore, not actionable under the ATS.
What limits apply, then, to overseas kidnapping, arrest, or rendition by the U.S. government? Government agents cannot directly make an overseas arrest. That said, mere illegal action by U.S. agents is not sufficient to divest a U.S. court of jurisdiction. Only when the court obtained jurisdiction “as the result of the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights” does the court lose jurisdiction. The view of what constitutes such an invasion has changed dramatically in the past 30 years.
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