Constitutional Limits on International Rendition of Criminal Suspects (From International Aspects of Criminal Law - Enforcing United States Law in the World Community, P 34-65, 1981, Richard B Lillich, ed.)

• NCJ Number: 85835
• Author(s): P B Stephan
• Date Published: 1981
• Length: 32 pages
• Sale Source: Michie Co
• Language: English
• Country: United States of America
• Note: Reprinted from 20 Virginia Journal of International Law 777

Annotation

This paper explores court decisions regarding constitutional limits where the United States seeks to obtain custody of suspects who had fled its jurisdiction through formal extradition or irregular methods.

Abstract

The first issue discussed is who enjoys constitutional protection -- everyone affected by governmental action or only those possessing citizenship or some other substantial connection with the United States. In many constitutional challenges to international rendition, foreign nationals have contended that law enforcement officials arranged for their forcible abduction and transport into this country. Aliens with no ties to the United States enjoy some constitutional protection while in this country, but Supreme Court decisions suggest that the Constitution does not limit the United States when it acts against foreign nationals overseas. This is demonstrated by Johnson v. Eisentrager (1950) and Reid v. Covert (1957). Some lower courts have argued that since aliens present in the United States may claim constitutional protection, no reason exists for different treatment abroad. This view, however, runs counter to established doctrine and raises substantial practical concerns for foreign relations. For example, courts cannot impose U.S. standards of individual rights on hostile countries and are not as competent as the political branch in assessing the acceptability of overseas Government behavior. Secondly, what conduct against overseas citizens who are protected does the Constitution forbid? As illustrated by United States v. Toscanino, courts have encountered problems in cases where misconduct appears to violate international law or where the degree of U.S. official participation is a question. Courts have considered three possible remedies in cases of criminal suspects arrested unconstitutionally: termination of the prosecution, suppression of evidence seized pursuant to the unlawful arrest, and creation of civil liability on the part of the arresting officials. In summary, lower Federal courts have responded to allegations of Government misconduct by imposing strong penalties for what is clearly unpalatable but not necessarily unconstitutional action. Courts need to identify precisely areas with constitutional safeguards so that the Government can rely on its judgment without threat of judicial interference. The article contains 80 footnotes.