Extraterritorial Apprehension by the Federal Bureau of Investigation

Extraterritorial Apprehension by
the Federal Bureau of Investigation
In th e ab sen ce o f an in tern atio n a l law vio latio n , a federal d istric t c o u rt will not o rd in a rily
d iv est itself o f ju risd ic tio n in a crim inal case w h e re th e d e fe n d a n t’s p resen c e has been
se cu re d b y his fo rcib le a b d u c tio n from th e te rrito ria l lim its o f a foreign asylum state.
A fo rcib le ab d u ctio n , w h en co u p led w ith a p ro te st by th e asylum state, is a v io latio n o f
in tern atio n al law ; th e re is, h o w e v e r, som e p re c e d e n t th at c o m p licity o f asylum sta te
officials in th e ab d u ctio n co u ld be th e p re d ic a te for a finding o f no actu al v io latio n o f
th e asylum sta te ’s so v e reig n ty .
C iv il liability o n th e p a rt o f th e U n ited S tates o r p a rtic ip a tin g g o v e rn m e n t officials
resu ltin g from a fu g itiv e ’s fo rcib le ap p reh en sio n in a foreign c o u n try w ill d e p e n d on
th e sta tu s o f th e o p e ra tio n u n d er in tern atio n a l law ; liability c o u ld be p re d ic a te d on
th eo ries o f co n stitu tio n al o r co m m o n law to rt, o r on a v iolation o f in tern atio n a l law .
T h e F e d e ra l B ureau o f In v estig atio n has no a u th o rity to a p p re h e n d and ab d u c t a fugitive
residing in a fo reig n sta te w ith o u t th e asylum sta te ’s consent.
In th e ab sen ce o f asylum sta te co n sen t, fed eral officials m ay be su b je ct to ex trad itio n to
th e asylum sta te fo r kid n apping.
March 31, 1980
M EMORANDUM OPINION FOR T H E ATTORNEY G E N ER A L
You have requested that this Office advise you on the implications of
a proposed operation of the Federal Bureau of Investigation (FBI) that
might entail entry of American agents into a foreign country and
forcible apprehension of a fugitive currently residing there. It is to be
assumed that the foreign country (hereinafter “asylum state”) would file
a pro forma protest to the fugitive’s apprehension and return to the
United States. We also assume that the actual apprehension would be
made by FBI agents, although some elements of the local police force
might provide physical surveillance and aid in the neutralization of
bodyguards during the actual apprehension.
The proposed operation raises the following, interrelated legal issues:
the implications of the seizure for the pending criminal prosecutions of
the fugitive, the legal status of the operation under existing treaties and
settled principles of international law, and the possibility of civil liabil­
ity on the part of the United States or participating government offi­
cials. This operation is unorthodox and, therefore, prompts a number of
legal questions that are of first impression. Although we will discuss all
the above legal questions separately, we think that the fundamental
543
legal issue presented by this operation is under what circumstances does
the FBI, as a matter of United States law, have the authority to make
an extraterritorial apprehension. Although the question is not free from
doubt, we conclude that the FBI only has lawful authority when the
asylum state acquiesces to the proposed operation. Since we are to
assume that a pro forma protest to the operation would be filed, that
fundamental condition would probably not be satisfied here.
I. Implications for Criminal Prosecutions of Extraterritorial
Apprehension that Is Subject of Protest
The Supreme Court has consistently stated “that the power of a
court to try a person for crime is not impaired by the fact that he [has]
been brought within the court’s jurisdiction by reason of a ‘forcible
abduction.’ ” Frisbie v. Collins, 342 U.S. 519, 522 (1952).1 It has rejected
arguments that such abductions constitute violations of the Due Process
Clause, and has reiterated the vitality of this conclusion in a recent
Term. Gerstein v. Pugh, 420 U.S. 103, 119 (1975). Lower courts, par­
ticularly the Court of Appeals for the Second Circuit, have suggested,
however, that under some circumstances a federal court might divest
itself of jurisdiction as a result of the manner in which the defendant
was brought before it.
The most sweeping statement of these circumstances is to be found in
United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). There the
Second Circuit confronted allegations that Toscanino, a citizen of Italy,
was kidnapped in Uruguay by agents in American employ, tortured and
interrogated for 17 days in Brazil with the knowledge of and sometimes
in the presence of United States officials, and finally drugged and put
on a commercial flight to the United States where he was convicted of
narcotics violations.2 Questioning the current vitality of the Ker-Frisbie
1 These propositions are often referred to as the Ker-Frisbie doctrine. In the leading case, Ker v.
Illinois, 119 U.S. 436 (1886), Ker was convicted in the Illinois state courts after being forcibly
abducted in Peru. Formal extradition had been arranged among the Governor of Illinois, the U.S.
Secretary of State, and Peruvian officials, but the individual who was sent to accompany Ker back to
the United States did not present the extradition papers upon arrival in Peru. It was therefore a “clear
case of kidnapping within the confines of Peru.*' Id. at 443. Although the apprehending agent might be
subject to criminal prosecution in Peru, the Court found that American law afforded the apprehended
fugitive no protection.
Frisbie v. Collins, 342 U.S. 319 (1952), involved an interstate abduction. Michigan officers forcibly
seized Collins in Chicago. Acknowledging that the Michigan officers might be subject to prosecution
under the Federal Kidnapping Act, the Court held that as far as Collins was concerned, “due process
o f 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.’* Id. at 522. See also Mahon v. Justice,
127 U.S. 700, 708 (1888).
2 Toscanino alleged that he was denied sleep and nourishment for days, fed intravenously at
survival levels, forced to walk for hours on end, and kicked and beaten. He claimed his fingers were
pinched by metal pliers; his eyes, nose, and anus washed in alcohol; and his genitals subjected to
electric shock. There had been no attempt by the United States to extradite Toscanino. Toscanino, 500
F.2d at 270.
544
doctrine, the Second Circuit relied on Rochin v. California, 342 U.S.
165 (1952), in concluding that the concept of due process has evolved
such that a court must now “divest itself of jurisdiction over the person
where it has been acquired as the result of the Government’s deliberate,
unnecessary and unreasonable invasion of the accused’s constitutional
rights.” 500 F.2d at 275.3 If on remand Toscanino’s allegations were
proven true, the Second Circuit saw a due process violation inherent in
the bribery of a foreign official, the violence and brutality of the
abduction, the violations of international law, and the failure to attempt
extradition of Toscanino.4
Subsequent Second Circuit cases have read Toscanino narrowly and
other circuits have refused to follow it. In United States ex rel. Lujan v.
Gengler, 510 F.2d 62 (2d Cir.), cert, denied, 421 U.S. 1001 (1975), the
Second Circuit emphasized that Toscanino did not mean that “any
irregularity in the circumstances of a defendant’s arrival in the jurisdic­
tion could vitiate the proceedings of the criminal court,” but rather was
concerned with the “cruel, inhuman and outrageous treatment” that
Toscanino allegedly received.5
Thus the court concluded that although Lujan was forcibly abducted
from Bolivia, the lack of any allegation of the type of “shocking
governmental conduct” involved in Toscanino obviated any application
of the rationale of that case. Lujan, 510 F.2d at 66.6 It did, however,
reserve the question whether the fact that an abduction is in violation
of international law requires dismissal of the criminal indictment: either
because such illegal governmental conduct constitutes a violation of
due process or because a federal court should, as a matter of judicial
administration, refuse to be a party to official misconduct. Id. at 68.7
The court perceived no international law violation in Lujan because
there had been no protest by the foreign governments involved.
Id. at 67.
Other circuits have resolutely invoked the Ker-Frisbie doctrine to
dismiss arguments that American courts should divest themselves of
their criminal jurisdiction over a defendant because his presence was
3 The court did not have the benefit of the Supreme Court’s endorsement in Gerstein v. Pugh, 420
U.S. at 119, o f the Ker-Frisbie doctrine.
4 The court of appeals noted that even if the Ker-Frisbie doctrine was still good law, it could make
use of its supervisory power over the district court to upset Toscanino’s conviction in order "to
prevent district courts from themselves becoming ‘accomplices in willful disobedience of law.’ ”
Toscanino, 500 F.2d at 276, quoting McNabb v. United Slates, 318 U.S. 332, 345 (1943). On remand the
district court found that Toscanino's allegations had no basis in fact. United States v. Toscanino, 398 F.
Supp. 916 (E.D. N.Y. 1975).
*510 F.2d at 65 (emphasis in original). See also United States v. Lira, 515 F.2d 68 (2d Cir.), cert,
denied. 423 U.S. 847 (1975) ( Toscanino distinguished because no direct United States involvement in
torture by Chilean police).
6 Lujan, a licensed pilot, alleged that while residing in Argentina, he was hired by an individual to
fly to Bolivia. He claimed that his employer was in fact paid by American agents to lure Lujan out of
Argentina. In Bolivia, Lujan was arrested by Bolivian police who were also allegedly paid by
American agents. He was ultimately put on a plane by Bolivian and American agents and formally
arrested upon his arrival in the United States. Lujan. 510 F.2d at 63.
7 See supra, note 4.
545
procured through a forcible abduction.8 Moreover, a number of those
courts have suggested that jurisdiction should be retained even if the
abduction violates international law.9 We note, however, that there is
apparently no reported case where the abduction was the subject of a
formal diplomatic protest by the asylum state.
It is our opinion that even where an abduction is a technical violation
of international law, a federal district court should not divest itself of
jurisdiction over the fugitive’s criminal prosecution.10 We think this
position is dictated by logic and precedent. In Frisbie, 342 U.S. 522, the
Supreme Court assumed that the conduct of the Michigan authorities
who abducted Collins from Chicago constituted a violation of the
Federal Kidnapping Act. It concluded, however, that the Kidnapping
Act “cannot fairly be construed so as to add to the list of sanctions
detailed a sanction barring a state from prosecuting persons wrongfully
brought to it by its officers. It may be that Congress could add such a
sanction. We cannot.” Frisbie, 342 U.S. at 523. A dismissal remedy for a
violation of international law is even less appropriate. The interests
protected by international law are those of sovereign nations. Any
interest of individuals is at best derivative. See Lujan, 510 F.2d at 67.
By contrast, the Federal Kidnapping Act is unquestionably for the
protection of individuals; yet under the principles of Frisbie, a forcible
8 E.g., United Slates v. Postal, 589 F.2d 862, 865 (5th C ir). cert, denied, 444 U.S. 832 (1979) (arrest
by Coast Guard upon the high seas); United States v. Mariano, 537 F.2d 257, 271-72 (7th Cir. 1976),
cert. denied, 429 U.S. 1038 (1977) (allegations of unlawful arrest in and forcible abduction from Grand
Cayman Island; Toscanino characterized as only departure from Ker-Frisbie doctrine); Waits v.
McGowan, 516 F.2d 203 (3d Cir. 1975) (allegedly illegal removal from Canada to New York); United
States v. Cotten. 471 F.2d 744, 747-49 (9th Cir.). cert, denied, 411 U.S. 936 (1973) (forcible removal
from Vietnam).
There is a standard formulation of the Ker-Frisbie doctrine reiterated in these cases:
It has long been held that due process has been satisfied when a person is apprised of
the charges against him and is given a fair trial. The power of a court to try a person is
not affected by the impropriety of the method used to bring the defendant under the
jurisdiction of the court [citing Ker and Frisbie). Once the defendant is before the
court, the court will not inquire into the circumstances surrounding his presence there.
United States v. Mariano. 537 F.2d at 271.
9 E.g., Postal, 589 F.2d at 873 (“This proposition, the so-called Ker-Frisbie doctrine, is equally valid
where the illegality results from a breach of international law not codified in a treaty"); United States
v. Cadena. 585 F.2d 1252, 1261 (5th Cir. 1978) United States v. Winter, 509 F.2d 975, 984-86 (5th Cir.),
cert, denied. 423 U.S. 825 (1975) (Ker-Frisbie doctrine makes it unnecessary to inquire whether arrest
by Coast Guard within territorial waters of Bahamas violated international law); Autry v. Wiley, 440
F.2d 799, 802-03 (1st C ir), cert, denied. 404 U.S. 886 (1971).
Oftentimes courts simply do not discuss the status of the abduction under international law. E.g..
Marzano, 537 F.2d 257; United States v. Herrera. 504 F.2d 859 (5th Cir. 1974); United States v. Vican,
467 F.2d 452 (5th Cir. 1972), cert, denied. 410 U.S. 967 (1973).
10 Cadena. 585 F.2d at 1261 (“no basis for concluding that violations of these international princi­
ples must or should be remedied . . . by dismissal of the indictment unless Fourth Amendment
interests are violated”); Autry v. Wiley. 440 F.2d at 801-02; see also Waits v. McGowan, 516 F.2d 203,
208 (3d Cir. 1975) (“the protections or rights which accrue to the extradited person primarily exist for
the benefit of the asylum nation . . ., whereas plaintiffs complaint alleges violation of rights of citizens
of the demanding nation (The United States of America)*’).
American courts are charged with the vindication of international law principles to the extent those
principles are consonant with American law. The Paquete Habana, 175 U.S. 677, 700 (1900). The thrust
of the abduction cases is that relinquishing criminal jurisdiction is not the means to vindicate those
principles.
546
abduction in violation of that Act does not divest an American court of
jurisdiction.
In sum, we are of the opinion that in the absence of an international
law violation, a federal district court will not ordinarily divest itself of
jurisdiction in a criminal case where the defendant’s presence has been
secured by forcible abduction from the territorial limits of a foreign
asylum state. Nor should it do so where there is an international law
violation. However, since you have advised us that you expect a pro
forma diplomatic protest by the asylum state and that the fugitive’s
prosecution will proceed in the Southern District of New York, it is
necessary to examine the international law implications of this operation
more closely. As we have noted, the Second Circuit has expressly
reserved the question whether a violation of international law should
result in relinquishment of criminal jurisdiction over the suspect.
II. International Law Implications of the Proposed Operation
There is one line of authority in American jurisprudence that does
create an exception to the Ker-Frisbie doctrine. As Congress by statute
can modify the jurisdiction of federal courts, so too can a treaty. Thus
the Supreme Court has held that a treaty can divest federal courts of
jurisdiction in certain circumstances if such was the intent of the docu­
ment. Cook v. United States, 288 U.S. 102, 112 (1933); Ford v. United
States, 273 U.S. 593, 610-11 (1927). As the Fifth Circuit recently noted,
for a treaty to have such an effect, it must be self-executing or imple­
mented by statute.11
There are two arguably relevent treaties between the United States
and the asylum state that must be considered in this case. They are the
extradition treaty between the two countries and the United Nations
Charter. It is well-established that the existence of an extradition treaty
simpliciter does not defeat U.S. jurisdiction over a fugitive apprehended
outside the extradition mechanism.12 And there is nothing in the terms
of the existing extradition treaty that suggests that this government has
yielded jurisdiction over U.S. nationals who have committed crimes in
this country simply because they obtained refuge in the asylum state.13
The second relevant treaty is the United Nations Charter to which
both the United States and the. asylum state are signatories.
11 Postal, 589 F.2d at 875-76. A treaty does not provide rules of decision for American courts
unless that is the intent o f the document, Le., the treaty is self-executing. Whitney v. Robertson, 124
U.S. 190, 194 (1888); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). Of course, implementing
domestic legislation does provide rules of decision capable of judicial enforcement.
12 Ker, \ 19 U.S. at 444 (1886); Waits v. McGowan. 516 F.2d at 206-08; Lujan. 510 F.2d at 66; United
States v. Sobell. 244 F.2d 520, 524-25 (2d Cir.), cert, denied, 355 U.S. 873 (1957).
13 By its terms it does not constitute an agreement that extradition will be the exclusive means of
obtaining custody o f a fugitive. Nor does it purport to limit the criminal jurisdiction of either
sovereign.
547
All Members shall refrain in their international relations
from the threat or use of force against the territorial
integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United
Nations.
U.N. Charter, art. 2, para. 4.
This provision has been at issue in a number o f forcible abduction cases,
including Toscanino and Lujan. The leading precedent on forcible ab­
duction’s status under the United Nations Charter is that involving the
apprehension of Adolph Eichmann in Argentina by Israeli agents. A r­
gentina objected to the United Nations Security Council, which subse­
quently adopted a resolution:
Considering that the violation of the sovereignty of a
Member State is incompatible with the Charter of the
United Nations . . . [and njoting that the repetition of
acts such as that giving rise to this situation would in­
volve a breach of the principles upon which international
order is founded creating an atmosphere of insecurity and
distrust incompatible with the preservation of peace . . .
[the Security Council requests] the Government of Israel
to make appropriate reparation in accordance with the
Charter of the United Nations and the rules of interna­
tional law .14
Commentators have construed this action to be a definitive construction
of the United Nations Charter as proscribing forcible abduction in the
absence of acquiescence by the asylum state.15
It is our opinion that even if the operation under consideration is
construed to be a violation of the United Nations Charter, the criminal
jurisdiction of American courts is unaffected. We base our opinion on
the grounds that the United Nations Charter is not a self-executing
treaty and that it was not intended by the United States at the time of
ratification to affect the criminal jurisdiction of federal courts. There is
not a great deal of case law on these points. However, as the Fifth
Circuit observed in Postal, 589 F.2d at 876, the self-executing nature of
a treaty is a matter of intent. The broad sweep and hortatory tone of
Article 2 belies any argument that a binding, self-executing limitation
on the criminal jurisdiction of American courts is evident in its term s.16
14 Quoted in W. Bishop, International Law 475 n.52 (1962).
15 E.g., Lujan, 510 F.2d at 66-68; Abramovsky & Eagle, U.S. Policy in Apprehending Alleged
Offenders Abroad: Extradition, Abduction, or Irregular Rendition?, 57 Or. L. Rev. 51, 63 (1977); see
Silving, In re Eichmann: A Dilemma o f Law and Morality, 55 Am. J. Int’l L. 307 (1961).
16 See generally, L. Goodrich, E. Hambro & A. Simmons, Charter of the United Nations: Commen­
tary and Documents 43-55 (1969).
548
And courts that have considered provisions of the United Nations
Charter have concluded that they are not self-executing.17
It is a more difficult question whether the proposed operation is a
violation of general international law principles, albeit not a violation of
a self-executing treaty. As Judge Kaufmann indicates in his majority
opinion in Lujan, it appears to be the case that a forcible abduction,
when coupled with a protest by the asylum state, is a violation of
international law. Lujan, 510 F.2d at 67. It is regarded as an impermissi­
ble invasion of the territorial integrity of another state. Since the
asylum state would hardly attest to the fact that the protest is pro
forma, there is little to be gained in the instant case by characterizing it
as such. Nor do there appear to be any doctrines of self-help or self-
defense applicable in this context.
There may be, however, some precedent in international law for the
argument that complicity of asylum state officials in the abduction robs
the asylum state’s protest of its import under international law. In 1911
the Permanent Court of Arbitration at The Hague declined to order the
return to France of one Savarkar. Savarkar had escaped to France from
a British ship, only to be returned to the British by a French policeman.
The Court of Arbitration found that the French official’s cooperation
avoided any violation of French sovereignty that might otherwise have
occurred.18 Likewise, the complicity of the asylum state’s police in the
proposed operation could be the predicate for a finding of no actual
violation of the asylum state’s sovereignty. One obvious drawback to
this argument is that it forces this government to put in issue the
identity of its asylum state collaborators. We also note that the Court of
Arbitration in the Savarkar case found that the British officials had no
reason to know that the French official was not acting with the ap­
proval of the French government. No similar claim of ignorance could
be made about the operation under consideration.
We conclude that the best assumption for purposes of analyzing the
implications of the proposed operation is that although not a violation
of a self-executing treaty, it would violate international law. That sig­
nificantly heightens the litigation risks in the Second Circuit, which has
explicitly declined to define the implications of an international law
violation on criminal jurisdiction.
III. Civil Liability
We think the case for obtaining at least the acquiescence of the
asylum state is compelling when the criminal litigation risks are coupled
17 Sei Fujii v. State, 242 P.2d 617, 620 (Cal. 1952) (human rights provisions of U.N. Charter not self­
executing); Pauling v. McElroy, 164 F. Supp. 390, 393 (D.D.C.), afJTd, 278 F.2d 252 (D.C. Cir.), cert,
denied. 364 U.S. 835 (1960) (finding other section? of Charter not self-executing).
,a The case is discussed in Lujan, 510 F.2d at 67, and can be found at Judicial Decisions Involving
Questions o f International Law. 5 Am. J. Int’l L. 490, 520 (1911).
549
with the possibility of civil liability.19 Civil liability will turn to a
substantial degree on whether the FBI is authorized to conduct this
operation and that, in our view, will depend on the status of the
operation under international law.
In Ker v. Illinois, the penultimate paragraph in the Supreme Court’s
opinion reads as follows:
It must be remembered that this view of the subject
does not leave the prisoner or the Government of Peru
without remedy for his unauthorized seizure within its
territory. Even this treaty with that country provides for
the extradition of persons charged with kidnapping, and
on demand from Peru, Julian [the party who abducted
Ker], could be surrendered and tried in its courts for this
violation of its laws. The party himself would probably
not be without redress, for he could sue Julian in an
action of trespass and false imprisonment, and the facts set
out in the plea would without doubt sustain the action.
W hether he could recover a sum sufficient to justify the
action would probably depend upon moral aspects of the
case which we cannot here consider.
119 U.S. at 444.
As the above quotation indicates, the question of civil liability is
certainly an open one, as is the criminal liability of the apprehending
agents and others under asylum state law. We discuss criminal liability
in Part IV below.
There appear to be three potential civil liability theories: constitu­
tional violations by American agents, common law torts committed by
American agents (i.e., false imprisonment), and violation of international
law. The potential defendants are the federal government and individ­
ual government officials involved in this operation.20
By virtue of the Federal Tort Claims A ct (FTCA), the United States
has waived sovereign immunity with respect to the torts of assault, false
imprisonment, and false arrest. 28 U.S.C. §§ 2674, 2680(h). The authori­
ties are split on whether that waiver includes related constitutional
torts.21 There is, however, unanimous, albeit limited, authority that
even for common law torts, the FTC A is not a total waiver of sover­
eign immunity. In the leading case, the Fourth Circuit has held that
19 By “acquiescence" we do not m6an formal endorsement. It is sufficient that the asylum state
agree not to protest the apprehension.
20 Those who authorize, direct, participate in, or ratify the operation are potentially liable.
21 Compare Norton v. United Stoles* 581 F.2d 390 (4th Cir.), cert, denied, 439 U.S. 1003 (1978), with
Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978). Birnbaum, however, did not have to consider
the effects o f the 1973 amendments to the FTCA. We think that the best assumption in light of those
amendments is that the FTCA does waive sovereign immunity for damage actions predicated on
Fourth Amendment violations. Boger, Gitenstein & Verkuil, The Federal Tort Claims Act Intentional
Torts Amendment: An Interpretative Analysis, 54 N.C. L. Rev. 497 (1976).
550
immunity that is available to government officers sued in their personal
capacities can also be asserted by the government when it is sued in
their stead under the FTC A .22 Therefore, the key to analyzing the
potential for civil liability is to determine whether government officials
involved in this operation would enjoy either an absolute or qualified
immunity if sued individually for damages.
The Supreme Court has held that federal officials have a qualified
immunity from damage actions in cases of constitutional torts, and
that immunity at least that great governs common law torts.23 Qualified
immunity will be available for the proposed operation if it is within the
outer limits of the FBI’s authority and is conducted in good faith with a
“ ‘reasonable belief in the validity of the arrest and search and in the
necessity for carrying out the arrest and search in the way the arrest
was made and the search was conducted.’ ” 24 For reasons stated below,
we think those conditions are satisfied only if the operation is con­
ducted with the acquiescence of the asylum state.
Law enforcement officers are acting beyond the “outer limits” of
their authority when they act beyond their jurisdiction.25 As the instant
operation is presently conceived, the FBI and its agents are likely to be
found not acting within these jurisdictional bounds because U.S. agents
have no law enforcement authority in another nation unless it is the
product of that nation’s consent. We have on prior occasions counseled
that the FBI has lawful authority under United States law to conduct
investigations in a foreign country provided those investigations relate
to a matter within the statutory jurisdiction of the FBI. While no
statute explicitly authorizes the FBI to conduct investigations outside of
the United States, 28 U.S.C. § 533(1) contains no geographical restric­
tions and its general authorization—to detect and prosecute crimes
against the United States—would appear to be broad enough to sanc­
tion activity toward this end no matter where it was undertaken. But
we have coupled that opinion with the recommendation that any oper­
ations strictly adhere to local law and function with the knowledge and
at least tacit approval of the country involved. We think any argument
that § 533 gives the FBI authority to make forcible arrests anywhere in
the world is at best tenuous; the sounder interpretation is that its
authority is limited, like that of the United States generally, by the
sovereignty of foreign nations. As we indicated in Part II, the asylum
22 Norton, 581 F.2d at 394-97; see Daniels v. United States, 470 F. Supp. 64 (E.D.N.C. 1979).
**Butz v. Economou, 438 U.S. 478, 506-08 (1978) (holding that only a qualified immunity is
available for most constitutional torts); Barr v. Matteo, 360 U.S. 564 (1959) (absolute immunity
available for some common law torts); see Expeditions Unlimited, Aquatic Enterprises, Inc. v. Smith­
sonian Institution, 566 F.2d 289 (D.C. Cir. 1977), cert, denied, 438 U.S. 915 (1978); Granger v. Marek,
583 F.2d 781, 784 (6th Cir. 1978).
24Norton v. United States, 581 F.2d at 393 (quoting Bivens v. Six Unknown Named Agents o f Federal
Bureau o f Narcotics, 456 F.2d 1339, 1348 (2d Cir. 1972)).
Bates v. Clark, 95 U.S. 204, 208-10 (1877) (no official immunity for seizure not made in
Indian country because relevant statute only authorized seizure in Indian country). Bates and similar
cases are discussed approvingly in Butz v. Economou. 438 U.S. at 489-95.
551
state’s sovereignty would be “violated” for purposes of subsequent
litigation if it filed a formal protest.
Our conclusion regarding the scope of § 533 is dictated by two
distinct but related lines of analysis. A conventional statutory construc­
tion rule regarding the scope of an official’s authority states that where
a statute imposes a duty, it authorizes by implication all reasonable and
necessary means to effectuate such duty. Given the target’s fugitive
status and the inadequacy of extradition,26 it can be forcefully argued
that this operation is necessary if the FBI is to carry out its law
enforcement mission under § 533. However, the reasonableness of the
operation is questionable if it violates international law or United States
law. All methods of rendition outside the traditional extradition mecha­
nism have received substantial criticism from international law special­
ists and in academic journals. The tenor of these remarks is that such
extraordinary means of apprehension undermine international order and
breed disrespect for the traditional means of fostering cooperation and
arbitrating disputes among nations.27 Judges in abduction cases have
expressed concern that such extraordinary apprehensions denigrate the
rule^)f law in the name of upholding it.28 We think that concern, when
coupled with a U.S. or international law violation, may well lead courts
to conclude that the activity lies beyond the jurisdiction of the FB I.29
The opinion of Chief Justice Marshall in The Schooner Exchange v.
McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812) suggests a second ap­
proach to defining the limits of the FB I’s jurisdiction under § 533. The
FB I’s power cannot extend beyond those of the United States. The de
jure authority of the United States is necessarily limited by the sover­
eignty of other nations:
26We are assuming that it can be established that extradition is an inadequate means of apprehension
in this case. We emphasize here the importance o f an ability to make such a showing.
11 E.g.. M. Bassiouni, International Extradition and World Public Order 121 -201 (1974); and sources
cited supra, note 16.
28Although he concurred in the result in Lira. 515 F.2d at 73, this concern prompted Judge Oakes
to observe: “To my mind the Government in the laudable interest of stopping the international drug
traffic is by these repeated abductions inviting exercise of [the court's] supervisory power in the
interest of the greater good of preserving respect for law.” See also. Toscanino. 500 F.2d at 276.
29 It should be noted that this is to argue that the FBI has the authority to violate the local law of
another country as long as that country does not object. We think three doctrines, although none is
addressed directly to the question under consideration, conjoin to support this conclusion.
First, the “act of state” doctrine evinces “judicial deference to the exclusive power of the Executive
over conduct o f relations with other sovereign powers” and “precludes any review whatever of the
acts of the government of one sovereign State done within its own territory by the courts of another
sovereign State." First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 763, 765 (1972)
(opinion of Rehnquist, J.). We think that to say the FBI had no authority to apprehend the fugitive,
despite the acquiescence of the asylum state, because such apprehension was in violation of local law
is in fact to judge the actions of the asylum state—here its failure to enforce arguably applicable local
law. Second, it is tantamount to giving an individual the right to dispute a nation’s conception of its
own sovereign interests in violation of the principle that only the sovereign has standing to assert and
construe its interest. Third, there is the maxim that the penal laws of a foreign country are not
enforced in the courts of this country, but must be enforced in the place where the violation occurs.
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 413-14 (1964).
552
The jurisdiction of the nation within its own territory is
necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. Any restriction upon it,
deriving validity from an external source, would imply a
diminution of its sovereignty to the extent of the restric­
tion, and an investment of that sovereignty to the same
extent in that power which could impose such restriction.
All exceptions, therefore, to the full and complete
power of a nation within its own territories, must be
traced up to the consent of the nation itself. They can
flow from no other legitimate source.
11 U.S. (7 Cranch) at 136.
In short, both lines of analysis suggest that in the absence of asylum
state consent, the FBI is acting outside the bounds of its statutory
authority when it makes an apprehension of the type proposed here—
either because § 533 could not contemplate a violation of international
law or because the powers of the FBI are delimited by those of the
enabling sovereign. Once the “authority” hurdle is surmounted, how­
ever, we think that the other parts of the good faith defense are readily
met. There is ample probable cause and a number of outstanding bench
warrants.
Assuming the operation goes forward without asylum state consent,
it is necessary to examine more closely the civil liability theories that
may be put forward by the fugitive. There are two constitutional
arguments available to him. The first is that he is subject to an unrea­
sonable search and seizure in violation of the Fourth Amendment. The
second is the Fifth Amendment due process argument based on the
logic of Toscanino. The Bill of Rights does apply to actions of Ameri­
can officials directed at American nationals overseas,30 and it is our
view that the proposed operation would have some Fourth Amendment
problems due to the absence of asylum state consent.
The standard Fourth Amendment requirement for an arrest is that it
be based on probable cause. Beck v. Ohio, 379 U.S. 89, 91 (1964);
Gerstein v. Pugh, 420 U.S. at 111-12. “[WJhile the Court has expressed
a preference for the use of arrest warrants when feasible . . . , it has
never invalidated an arrest supported by probable cause solely because
the officers failed to secure a warrant.” Id. at 113. Here we have
warrants and probable cause. The Fourth Amendment problem stems
instead from the FBI’s lack of statutory authority for an extraterritorial
apprehension that has not been sanctioned by the asylum state.
Where federal officials act without explicit statutory authority, the
validity of an arrest in this country turns on whether it meets the
30 Reid v. Covert 354 U.S. 1, 5-6 (1957); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144,
160-61 (1976).
553
standards for a valid citizen’s arrest under state law.31 If a court
extrapolated that reasoning to the international context, the pertinent
question would be the standards for a citizen’s arrest in the asylum
state.32 The rule in the asylum state is that “[a]ny person may, with or
without warrant or other legal process, arrest and detain another
person who has committed a felony.” Presumably this is a reference to
domestic felonies; otherwise the statute would authorize arrests for
crimes that are not punishable in domestic courts and are not the
subject of an extradition order. Thus we think this asylum state statute
could not afford to U.S. officials authority to arrest for U.S. felonies
within the asylum state’s territory. So in the absence of asylum state
consent and the § 533 authority to arrest that comes with it, the fugitive
has a plausible Fourth Amendment claim. In contrast, for reasons stated
in Part I of this memorandum to support the conclusion that, in the
absence of the brutality alleged in Toscanino, there is no due process
violation warranting divestment of jurisdiction, we conclude that there
would be no Fifth Amendment violation warranting a civil remedy.
We do not view a violation of international law as a legally sufficient
independent basis for a civil action. The reason is the distinct compass
of international law. Last February the Fifth Circuit observed in the
analogous context of a vessel seizure:
Since 1815 it has been established that redress for im­
proper seizure in foreign waters is not due to the owner
or crew of the vessel involved, but to the foreign govern­
ment whose territoriality has been infringed by the
action.33
The fugitive lacks standing to pursue the violation of international
law.34
The final potential bases for civil liability on the part of the federal
government and individual federal officials are the common law torts of
false imprisonment, false arrest, assault and battery. And to the question
of liability must be added the question of forum.
S1 See United States v. D i Re. 332 U.S. 581. 589-92 (1948); Alexander v. United States. 390 F.2d 101(5th Cir. 1968); United States v. Viale. 312 F.2d 595, 601 (2d Cir ), cert, denied. 373 U.S. 903 (1963).
38 O f course, a court could also conclude that federal agents do not have any citizen's arrest
privileges in the asylum state and therefore cannot avail themselves of citizen arrest standards to argue
the validity of the seizure.
33 United States v. Conroy. S89 F.2d I2S8, 1268 (5th Cir. 1979); see also The Richmond. 13 U.S. (9
Cranch) 102. 103 (1815).
34 Nor does the international law argument add to the fugitive's potential Fourth Amendment
claims, except to the extent that it delimits the statutory authority of the FBI. As the Fifth Circuit has
noted:
W hether the search and seizure were Fourth-Amendment-unreasonable must be estab­
lished by showing that interests to be served by the Fourth Amendment were violated,
and not merely by establishing the violation of general principles o f international law.
Cadena. 585 F.2d at 1264.
We note that by its terms the Federal Kidnapping Act is inapplicable in the context o f the proposed
operation. It pertains to abductions “within the special maritime and territorial jurisdiction o f the
United States.’* 18 U.S.C. § 1201(aX2). But see Toscanino, 500 F.2d at 276.
554
Although a civil suit in the asylum state against U.S. officials is
theoretically possible, it is an unlikely course for the fugitive to take
because of the obvious logistical problems, the fact the United States
would not be amenable to suit there, and difficulties the asylum state
courts would have in obtaining personal jurisdiction over individual
government officers. It is much more likely that any action for common
law torts would be instituted in the United States, and we think such an
action could be maintained in this country.
According to private international law, injuries to a person or per­
sonal property of another are transitory and the right to redress follows
the defendant to foreign lands.35 This principle has been recognized in
the United States.36 All that is necessary is that the defendant be found
within a jurisdiction in this country. The law to be applied is normally
that of the site of the tortious conduct—the asylum state in this
case 37—although we think American law would still govern the ques­
tion of immunity.38 It is always possible that the fugitive would be
nonsuited because a court regards the cause of action as repugnant to
the policies of the forum state. But the dicta in Ker about damage
actions make that result less certain,39 and we think that in the absence
of an immunity defense the United States and individual federal officials
could be held liable for false imprisonment.
The law of the place of the tort also usually governs the damage
award.40 Exemplary damages are available under English common law,
and consequently asylum state law, as are damages for nervous
shock.41 By their very nature, the size of such awards is impossible to
predict; we can only advise that exemplary damages would not be
available in an action against the United States.42 Although there is no
precedent on point, we think that it is unlikely that an American court
would be receptive to an argument that a fugitive should be compen­
35 See, e.g.. G. Cheshire, Private International Law 240-42 (1965).
See. e.g.. Slater v. Mexican National R.R. Co.. 194 U.S. 120 (1904); Schertenleib v. Traum. 589
F.2d 1156, 1165 (2d Cir. 1978); Mobil Tankers Co. v. Mene Grande Oil Co.. 363 F.2d 611, 615 (3d Cir ),
cert, denied. 385 U.S. 945 (1966).
37 See generally, G. Cheshire, Private International Law 240-57 (1965); M. Hancock, Torts in the
Conflict of Laws 54-63 (1942); Restatement (Second) of the Conflict of Laws §§ 10, 145 (1969). Of
course, this is not an ironclad rule and the government would be free to argue that a suit between a
U.S. citizen and his government created a sufficient nexus with the American forum to dictate the
application of its tort liability principles. But those principles are unlikely to vary sufficiently to make
a difference in the outcome.
38 Although state law may govern the cause ®f action, federal courts have applied a uniform federal
rule in determining whether the defendant enjoys official immunity. Barr v. Matteo, 360 U.S. 564, 569-
76 (1959). There is no justification for departing from that rule because the cause of action arises under
foreign law.
39 Appellate courts have had divergent views on what forum the Supreme Court had in mind when
it alluded to damage actions in Ker, 119 U.S. at 444. Compare Waits v. McGowan, 516 F.2d at 207 n.7
(damage actions in state courts) with United States ex rel. Lujan v. Gengler, 510 F.2d at 64-65 n.3
(damage actions in foreign courts).
40 See G. Cheshire, Private International Law 602-04 (1965); M. Hancock, Torts in the Conflict of
Laws 113-120 (1942); Restatement (Second) of Conflict of Laws §§ 10, 145, 171 (1969).
41 H. Street, The Law of Torts 114-17, 440 (1976).
42 28 U.S.C. §2674; see. e.g.. Johnson v. United States, 547 F.2d 688, 690 n.5 (D.C. Cir. 1976).
555
sated for his lost opportunity to evade the lawful processes of the
United States. Such an argument suggests a personal “right of asylum,”
a right explicitly rejected in Ker, and the argument could be properly
rebuffed as against the public policy of the forum. Also injunctive
relief, ordering that the fugitive be returned to the asylum state, is
squarely inconsistent with Ker. We note that there is no provision for
indemnification of government officials held liable in an action for false
imprisonment.43
IV. Criminal Liability and the Importance of Asylum State Consent
The importance of asylum state consent is perhaps most dramatically
highlighted by the possibility that federal officials may be extraditable
to the asylum state for kidnapping.44 A number of abduction cases,
including Ker, have discussed this possibility.45 The only effective
safeguard against the diplomatic embarrassment and personal anxiety an
extradition request would create is a prior agreement with the asylum
state that no extradition request will be made.
In sum, asylum state consent appears pivotal to the success of the
operation, both as a matter of litigation and public perception. A formal
diplomatic protest w6uld force the Second Circuit to decide whether to
divest the district court of its criminal jurisdiction as a result of the
international law violation. It would make an immunity claim in any
civil action difficult to maintain as well as provide the fugitive with a
strong argument that the operation violated his Fourth Amendment
rights. It would present the possibility of an embarrassing extradition
request. Finally, in the current international climate, this country can ill
afford an operation that would permit others to argue that the United
States does not respect international law. We advise that you not
authorize the operation without the asylum state’s tacit consent.
V. Miscellaneous Considerations
If an apprehension is to be made, we recommend that it be made in
the same manner as any professional arrest: with expedition, minimum
43 Torts Branch Monograph, Damage Suits Against Federal Officials, Department of Justice Repre­
sentation, Immunity 10-11 (Nov. 1978).
44 Art. 3, para. 7 of the extradition treaty between the United States and the asylum slate lists
kidnapping and false imprisonment as extradition offenses. The penal code of the asylum state
provides:
A person is guilty of kidnapping—
(1) who unlawfully imprisons any person, and takes him out of the jurisdiction of the
court, without his consent; or
(2) who unlawfully imprisons any person within the jurisdiction of the court, in such
a manner as to prevent him from applying to a court for his release or from discover­
ing to any other person the place where he is imprisoned, or in such a manner as to
prevent any person entitled to have access to him from discovering the place where he
is imprisoned.
45 E.g., Lujan, 510 F.2d at 64-65 n.3; Villareal v. Hammond, 74 F.2d 503, 505-06 (5th Cir. 1934);
Collier v. Vaccaro, 51 F.2d 17, 20-21 (4th Cir. 1931).
556
restraint, and with full sensitivity to the fugitive’s physical needs and
constitutional rights. We would recommend that the fugitive be in­
formed of his rights and the presence of outstanding warrants immedi­
ately upon his apprehension in the the asylum state and again immedi­
ately within the territorial confines of the United States. Even if the
fugitive waives his rights, we recommend that there be no attempt at
interrogation until the fugitive is within the territorial limits of the
United States.
As far as the participation of asylum state nationals is concerned, we
make the following observations: Insofar as foreign nationals are acting
at the behest or direction of this government, they will be regarded as
American agents by the courts. If they take action outside the ambit of
that agency relationship, e.g., resort to torture, this government may
successfully maintain that it was not a party to that action.46 But this
does not militate in favor of using asylum state nationals because FBI
agents are not likely to engage in improper conduct in the first place.
We think that the use of foreign nationals raises more questions of
strategy than of law. Only if foreign nationals, without U.S. direction
or compensation, deposited the fugitive on American soil would the
legal problems in this memorandum be obviated by their presence.
John M. H arm on
Assistant Attorney General
Office o f Legal Counsel