The Times Online reports that a lawyer representing the United States in a British court
has told Britain that it can “kidnap” British citizens if they are wanted for crimes in the United States. A senior lawyer for the American government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under American law because the US Supreme Court has sanctioned it.
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.
The 1992 United States Supreme Court case which states that foreigners abducted and brought to face trial in the U.S. have no legal remedy is United States v. Alvarez-Machain:
"[Alvarez-Machain] contends that the [U.S.-Mexico extradition] Treaty must be interpreted against the backdrop of customary international law, and that international abductions are "so clearly prohibited in international law" that there was no reason to include such a clause in the Treaty itself. The international censure of international abductions is further evidenced, according to respondent, by the United Nations Charter and the Charter of the Organization of American States. Respondent does not argue that these sources of international law provide an independent basis for the right respondent asserts not to be tried in the United States, but rather that they should inform the interpretation of the Treaty terms.
The Supreme Court essentially held that if the extradition treaty between the U.S. and another country doesn’t explicitly say abductions aren’t allowed, they are. You may agree with this reasoning (although I can’t see why any non-American would) or, like the dissenting judges, you may think the majority is "disregarding the Rule of Law that this Court has a duty to uphold." Keep in mind, however, that the Supreme Court decision only allows the practice (or, more precisely, says there is no legal remedy against it). The U.S. government could adopt a policy that it would not kidnap foreign nationals and bring them to trial in the U.S.
That hasn’t happened. Instead, the Bush Administration has decided, before the courts of its closest foreign ally, to publicly claim the right to kidnap foreign nationals. A spokesman for a British human rights group says “This law may date back to bounty hunting days, but they should sort it out if they claim to be a civilised nation," and a Tory MP calls "the very idea of kidnapping repugnant to us." The Justice Department, asked to respond,
provided a careful and well-reasoned explanation of U.S. policy that assuaged the concerns of its close ally declined to comment.
I’ve said it before, and I’ll say it again: if the U.S. wants to improve its image abroad, proudly claiming a right to do something which would provoke howls of protest if another country did it to an American is a pretty crappy way of going about it.