TERRORISM, EXTRADITION, AND ABDUCTION PROBLEM

Part IV: Alternatives to Extradition?

Table of Contents

Note: Parts I-III are found in the course booklet distributed in December 2014

A. The Problem .......................................................................................................1

1. Goals of the Negotiation Exercise ...............................................................1

2. Summary of Facts ........................................................................................1

3. Student Roles and Structure of the Exercise ................................................4

B. International Law in the U.S. Domestic Legal System ..................................5

1. Treaties in U.S. Law ....................................................................................5

2. Customary International Law in U.S. Law ..................................................7

C. The Law of Extraterritorial Abduction ...........................................................9

1. Customary International Law ......................................................................9

a. Basic Prohibition .....................................................................................9

b. Exceptions .............................................................................................12

i. Consent ............................................................................................12

ii. Self-Defense ...................................................................................14

c. Enforcement of the CIL Norm and Other Ramifications ......................15

2. U.S. Domestic Law ....................................................................................20

Authority of the Federal Bureau of Investigation to Override

International Law in Extraterritorial Law Enforcement Activities ............21

Notes and Questions on OLC Opinions on Foreign Abductions ...............27

D. Other Options? ................................................................................................28

E. National Security Decision-making in the

United States Executive Branch .....................................................................29

1. Student Roles in the U.S. Executive Branch..............................................29

2. Views on the Proper Role of Government Attorneys on Questions

Relating to National Security and Executive Authority ............................33

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ALTERNATIVES TO EXTRADITION?

A. THE PROBLEM

1. GOALS OF THE NEGOTIATION EXERCISE. In the remaining portion of Week One,

we shift the problem somewhat to take it (potentially) out of the realm of adjudication. We have

several objectives that we hope you will keep in mind as you continue the exercise:

First, these materials are designed to give you some sense of the ways in which

international lawboth treaties and customary international lawintersects with the domestic law of a state (in particular, that of the United States), and the ways in which governmental actors in

the United States must contend with and reconcile international and domestic law obligations and

authorities, which sometimes might appear to point in quite different directions.

Second, these materials provide an example of something that is very important but often

underemphasizednamely, that much of international law is developed and interpreted not through adjudication, or even though negotiation of formal international agreements, but instead

through the give and take of state practice, by various forms of so-called soft law,1 including behind-the-scenes push and pull about how to implement existing treaties and customand not only by what nations do, but also by what they say they do, i.e., what they admit to having done,

which might be very different than what goes on in fact.

Finally, these materials reflect the fact that often there is no occasion or opportunity for

judicial enforcement of international and domestic law. The Problem at issue during the remainder

of the week should encourage you to examine whether and how executive officials feel bound to comply with their legal obligations where courts are not in the picture, and whether

unenforceable legal obligations should or can limit executive action, particularly when exigent

claims of national security are at stake. In particular, you should be asking yourselves how the

President should balance national security needs with his constitutional obligation to take Care that the Laws be faithfully executed, and how legal advisors to such an official should interpret the law and offer legal advice where theirs might be the last word on the question.

2. SUMMARY OF FACTS. For this, the final portion of our Week One exercise, you

should assume that the ECtHR has heard oral argument on Hunters and Martins petitions and that the courts decisions in the Hunter and Martin cases are pending. By all accounts, a majority of the judges at argument appeared to express sympathy with the petitioners claims. And most careful observers have concluded that there is a good chancebut hardly a certaintythat the ECtHR will enjoin Russia and/or France from extraditing the petitioners to the United States

as long as the United States will not guarantee that the petitioners will not be subject to either the

death penalty or mandatory life without parole in a supermax facility.

1 On this phenomenon generally, see the Georgetown Law Ryan Lecture by Department of State Legal Adviser

Harold Koh (Oct. 18, 2012), http://www.law.georgetown.edu/news/web-stories/harold-koh-delivers-ryan-

lecture.cfm.

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Moreover, you should recall, and keep in mind, that Russia and France would not have

jurisdiction to prosecute these individuals under their own domestic law.

In the meantime, U.S. intelligence services have obtained equivocal intelligence, both from

highly classified human sources and from covert electronic surveillance, suggesting that both

Hunter and Martin might have been engaged in discussions with high-level WLA leaders about

the prospect of future terrorist attacks. The surveillance evidence so far is a bit hazythe persons in question, apparently apprehensive that their conversations might be overheard, appear to speak

in code; and the United States has not been able to definitively corroborate the planning activities

with multiple human sources. The static that the U.S. intelligence community is hearingindicative of planning for attackshas accelerated in recent months, a pattern that in the past has been a somewhat strong indicator that such plans are coming closer to fruition. Nevertheless,

although it appears to U.S. intelligence analysts that Martin, at least, might be a central figure in

the planning, and that Hunter might have some unknown operational role, the United States has

not yet been able to develop any firm evidence of when or where the attacks might occuror, indeed, any airtight assurance that Martin and Hunter are indeed involved in such WLA planning.

The National Security Agency and others in the Intelligence Community fear that the attack may

happen any day now, but they still dont know when or where. They inform the National Security Advisor that it would be extremely helpful to be able to interrogate Martin, and to a lesser extent

Hunter, to obtain further information about the possible attack.

The Administration of U.S. President Treanor is growing increasingly concerned that the

ECtHR will preclude Russia and France from extraditing Hunter and Martin to the United States.

Therefore it has begun internal discussions concerning whether the President and Attorney General

should direct the Federal Bureau of Investigation to attempt to arrest Hunter and Martin overseasi.e., to abduct or kidnap themand to bring them to the United States for trial on the pending criminal charges. (This practice is often referred to as rendition to justice. Although, as you will see, it raises very serious legal and diplomatic concerns, it is distinct from the even more

controversial practice of rendering a detainee to another nation for incommunicado, often abusive, interrogation.)

Lower-level CIA operatives have reached out to their opposite numbers in Russia and

France and received some (very ambiguous) indications that the Russian and French governments

might consider looking the other way if Hunter and Martin are forcibly removed from their

jurisdictionsbut the United States has not yet discussed such a possibility with any high-ranking Russian or French officials.

The U.S. public has been clamoring for President Treanor to bring Hunter and Martin to justice. The families of the victims of WLA terrorist attacks, especially the families of the two guards killed in Chicago, have become very well-organized, and very vocal. Cable and radio

commentators are more incredulous every day about the notion that the United States needs

permission from Russia and Francelet alone from the ECtHRin order to detain and try these alleged terrorists. The New York Times publishes a front-page story, based on a leak from unnamed

high-level Executive Branch officials, that the United States has obtained evidence that Hunter and Martin are plotting future terrorist attacks against the United States. (The Times reports that

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it afforded those officials anonymity because they had not been authorized to speak publicly about such highly classified information.) Not surprisingly, the public outrage that Hunter and Martin are walking freely around the streets of Moscow and Paris increases significantly as a result of the Times story.

The Times story also includes leaks by anonymous Administration officials that abduction

is being considered as an option. The Administration refuses to either confirm or deny the report,

but the leak naturally causes an immediate international furor. Citizens of Russia and France have

begun to question whether it is in their best interests for armed U.S. operatives to enter their

countries to abduct Hunter and Martin, and feel that the United States anti-terrorism agenda ought to be secondary to their own national sovereignty and safety. Moreover, a non-governmental

organization, Westphalian Citizens for Justice (WCJ), has mounted an aggressive publicity

campaign, proclaiming Hunters and Martins innocence and vowing to closely monitor all government action concerning these cases; it has had considerable success in attracting publicity

in Europe. Additionally, two well-respected international human rights organizations, Human

Rights First and Amnesty International, have been closely examining Hunters and Martins case before the ECtHR. They have begun to compile information about the possible human rights

concerns sketched out in both petitioners arguments before the ECtHR. The organizations are increasingly worried about the human rights implications of the rumored abduction, especially if

it would mean pretermitting the ECtHR process. Additionally, Amnesty International has set aside

tens of thousands of dollars to initiate public relations campaigns in the United States, France

and/or Russia, to highlight the human rights issues raised by the rumored abduction plans of the

United States.

The Treanor Administration is not only eager to try Hunter and Martin, but also

understandably wishes to be able to convey to the public that the new President is tough on terrorism, since that is certain to be a major issue in his upcoming re-election campaign. At the same time, a central component of President Treanors 2016 campaign had been his promise to preserve and strengthen the United States greatly improved relations with its European alliesa development that President Treanor and others attributed, in no small measure, to his predecessors renewed commitment to respect for, and adherence to, international law. During the campaign,

President Treanor often quoted with approval President Obamas remarks to the United Nations that we are doing the hard work of forging a framework to combat extremism within the rule of law. Every nation must know: America will live its values, and we will lead by example. The world must stand together to demonstrate that international law is not an empty promise, and that

treaties will be enforced.2 In particular, the Treanor Administration, like the Obama

2 Remarks by the President to the United Nations General Assembly (Sept. 23, 2009),

http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-to-the-United-Nations-General-Assembly.

See also Harold Hongju Koh, Legal Adviser, U.S. Department of State, Speech to the Annual Meeting of the American

Society of International Law: The Obama Administration and International Law (Mar. 25, 2010), http://www.state.gov/s/l/releases/remarks/139119.htm (describing the most important difference between this administration and the lastnamely, the Obama Administrations commitment to living our values by respecting the rule of law). Mr. Koh stated that

. . . both the President and Secretary [of State] Clinton are outstanding lawyers, and they understand

that by imposing constraints on government action, law legitimates and gives credibility to

governmental action. As the President emphasized forcefully in his National Archives speech and

elsewhere, the American political system was founded on a vision of common humanity, universal

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Administration before it, has publicly insisted that its authorities under statutory authorizations to

act against terrorist enemies overseas must be informed by the laws of war,3 and further has urged the courts to construe such statutory authorizations if possible, as consistent with international law.4 This Treanor/Obama perspective contrasts sharply with that of the preceding George W. Bush Administration, which argued to the Supreme Court that the Charming Betsy

canoni.e., that an act of Congress should only be construed to violate the law of nations if no other possible construction remainsdoes not apply to a statute, like [the law authorizing FBI arrests overseas], that authorizes conduct by the branch of government most directly responsible

for the conduct of foreign affairs and involves a core power of the Executive Branch,5 and with the views of at least two judges who took sharp issue with the Obama Administrations view that its military authorities were informed and limited by the laws of war.6

All of which is to say that the Treanor Administration is deeply sensitive to competing

values and objectives here, including: protecting the national security; obtaining vital intelligence

about possible impending attacks; securing justice for the Chicago shootings; strengthening the

United States foreign reputation and leadership role; and demonstrating respect for and adherence to international law.

3. STUDENT ROLES AND STRUCTURE OF THE EXERCISE. Students will leave behind

the roles they played from Monday through Wednesday of Week One and will represent a set of

U.S. Executive Branch officials and attorneys, including senior leadership. Students will be

assigned to particular roles within the Executive Branchsuch as the Attorney General, Secretary of State, National Security Advisor, and Assistant Attorney General for the Office of Legal

Counsel. Students will receive their assigned roles on TWEN. A detailed description of

perspectives and functions of those particular officials are outlined below on page 29.

rights and rule of law. Fidelity to [these][] values makes us stronger and safer. This also means

following universal standards, not double standards. In his Nobel lecture at Oslo, President Obama

affirmed that [a]dhering to standards, international standards, strengthens those who do, and isolates those who dont. And in her December speech on a 21st Century human rights agenda, and again two weeks ago in introducing our annual human rights reports, Secretary Clinton reiterated

that a commitment to human rights starts with universal standards and with holding everyone accountable to those standards, including ourselves.

3 See Respondents Memorandum Regarding the Governments Detention Authority Relative to Detainees Held at Guantanamo Bay at 1-4, In re: Guantanamo Bay Detainee Litig., Misc. No. 08-442, Nos. 05-0763, 05-1646, 05-2378

(D.D.C. Mar. 13, 2009).

4 See Respondents Response to Petition for Rehearing and Rehearing En Banc at 7, al-Bihani v. Obama, No. 09-5051 (D.C. Cir. 2010) (citing Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804) (an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains)).

5 Reply Brief for the United States at 3, United States v. Alvarez-Machain, No. 03-485 (U.S., 2004).

6 See al-Bihani v. Obama, 619 F.3d 1, 2-9 (D.C. Cir. 2010) (en banc) (Brown, J., concurring in the denial of rehearing

en banc); id. at 10-11, 23-44 (Kavanaugh, J., concurring in the denial of rehearing en banc) (Congress has provided no indication that it wants courts to freelance and go beyond Congresss direction by imposing international-law limits on the Executive. Moreover, the Charming Betsy canon of statutory construction does not authorize courts to read

international-law limitations into the authority granted to the President by the [Authorization for Use of Military Force

Congress enacted on September 18, 2001].).

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Students will consider, both in their particular role and then collectively as the Presidents most trusted legal and political advisors, whether the President legally can, and whether he should,

authorize the FBI to abduct Hunter from Russia and/or Martin from Franceand under what circumstances. What are the likely consequences of abduction? Are there other legal alternatives

to consider?

On Thursday during the breakout session, students will meet in the same oral argument

groups (or pods) that convened for argument on Wednesday. Within each group, two to three students will be assigned to one of the eight U.S. Executive Branch roles, outlined infra page 29,

and will first work together, as partners within the assigned role, to identify their actors priorities and position on the issue. The entire group will then work together to formulate a recommendation

to make to the President, taking into account their roles interests, the various alternatives to extradition that may be attractive, and the legal and political implications and strategy for how

various options might be effected. The President, played by your professor, will be visiting these

negotiation sessions and will ask for the groups recommendation (depending on the time the President appears, this recommendation may be a preliminary one and/or it may be the groups final recommendation). Each pod must make a final recommendation by the close of the

negotiation and report their decision to their Global Teaching Fellow(s) no later than the deadline

set by the President.

B. INTERNATIONAL LAW IN THE U.S. DOMESTIC LEGAL SYSTEM

You might think at first that if the contemplated abduction of Hunter and Martin would

violate international law, that is the end of the legal question from the perspective of the United

Stateseither it decides to break the law, or not. But things are not so simple, because international law is just one source of the law that might govern the situation at hand; and thus in

order to see the question in full, one must also consider the role of a nations domestic law (in our exercise, U.S. domestic law, in particular), and its relationship to international law.

What role does international law play in domestic legal systems? That is to say: Wholly

apart from any international obligations and sanctions, does a states national, domestic law itself require compliance with international law, or permit its violation? The answer will depend upon

the domestic legal system in question. Some states give international law pride of place in their

own legal systems, to the extent of subordinating their own law to international norms. Several

European states, either through their constitutions or the practice of their courts, apply international

law directly as if it were their own law, and in some nations international law may even have

priority over domestic statutes. Matters are somewhat more ambiguous in the United States,

however.

1. Treaties in U.S. Law

The Supremacy Clause of Article VI of the U.S. Constitution provides that:

This Constitution, and the Laws of the United States which shall be made in

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Pursuance thereof; and all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding.

Moreover, the President has the constitutional obligation to take Care that the Laws be faithfully executed (Article II, section 3)a duty that extends to duly ratified treaties. Thus, the Executive Branch is constitutionally compelled not to violate treaties to which it is a party, wholly

apart from the United States international law obligations, just as it must comply with constitutionally valid statues.

What if a treaty and a statute are inconsistent with one another? Which is supreme over

the other? The Supreme Court has explained that [b]y the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that

instrument to be the supreme law of the land, and no superior efficacy is given to either over the

other.7 Accordingly, if there is a conflict between a treaty provision and an act of Congress (and courts cannot reconcile the two, as they will try hard to do), the last-in-time prevails. If the treaty was ratified before the statute was enacted, the statute controls to the extent of any conflictand vice versa. This means that if Congress wishes to do so, it can enact a statute that prevents the

United States from complying with its treaty obligations.

Moreover, even where Congress has not taken such an extraordinary step, some treaties

themselves are not effective as domestic law until Congress takes further, affirmative steps to enact

implementing legislation. For example, as Chief Justice Marshall explained in Foster v. Nielson,8

if a treaty requires states parties to criminalize certain conduct, the United States cannot satisfy

that treaty obligation through federal law unless and until Congress enacts a criminal statute

making such conduct illegal. Such treaty provisions that require further means of being

implemented are often characterized as non-self-executing.9

It is important to note that, even in the rare case where a rule of international law or a

provision of an international agreement is superseded by statute as a matter of domestic law, or

where a non-self-executing treaty provision requires further action by Congress in order to become

effective as a matter of domestic lawlegislation that Congress might be reluctant to enactthat does not relieve the United States of its international law obligations, or excuse the United States

from possible consequences of a violation of those obligations.10 That is to say, there may be cases

in which U.S. actors are fully compliant with their domestic law obligations, but nevertheless act

7 Whitney v. Robertson, 124 U.S. 190, 194 (1888).

8 27 U.S. (2 Pet.) 253, 254 (1829).

9 The distinction between self-executing and non-self-executing treaty provisions, and the legal effect of a non-self-executing provision, are vexing and contentious issues under U.S. law; but you need not consider them further here. See LUBAN ET AL., INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW 55-67 (2014).

10 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 115(1)(b). See also id., ch. 2,

Introductory Note; 111, cmt. (a); 115 cmt. (b).

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in a way that causes the United States to breach its international legal obligations. In such a case,

the United States remains accountable to other nations for its breach of, or noncompliance with,

its international law obligations.

2. Customary International Law in U.S. Law

The Supremacy Clause of the U.S. Constitution does not mention customary international

law (CIL); by its terms, only the Constitution, statutes, and treaties are the supreme Law of the Land. Indeed, the only mention of CIL in the Constitution is a clause in Article I, section 8 empowering Congress to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations. Nevertheless, U.S. courts have generally adhered to the rule that prevailed in England before U.S. independence (and continues to prevail there

today)that CIL is part of the Law of the Land. As Chief Justice Jay wrote, [t]he United States, by taking a place among the nations of the earth, [had] become amenable to the law of

nations.11 The canonical form of this proposition by the U.S. Supreme Court appears in The Paquete Habana:

International law is part of our law, and must be ascertained and administered by

the courts of justice of appropriate jurisdiction, as often as questions of right

depending upon it are duly presented for their determination. For this purpose,

where there is no treaty and no controlling executive or legislative act or judicial

decision, resort must be had to the customs and usages of eivilized [sic] nations;

and, as evidence of these, to the works of jurists and commentators, who by years

of labor, research and experience, have made themselves peculiarly well acquainted

with the subjects of which they treat. Such works are resorted to by judicial

tribunals, not for the speculations of their authors concerning what the law ought to

be, but for trustworthy evidence of what the law really is.12

The Supreme Courts early embrace of CIL should not surprise us, given that in the founding era there were several reasons it was important for the United States to be seen as being

bound by the law of nations. One of the major defects of the Articles of Confederation was the

inability of the original national government to conduct a coherent foreign policy in the first dozen

years of the Republic. As Hamilton had complained in The Federalist No. 15, under the Articles

of Confederation,

[w]e may indeed with propriety be said to have reached almost the last stage of

national humiliation. There is scarcely anything that can wound the pride or

degrade the character of an independent nation which we do not experience. Are

there engagements to the performance of which we are held by every tie respectable

among men? These are the subjects of constant and unblushing violation. Is respectability in the eyes of foreign powers a safeguard against foreign

11 Chisholm v. Georgia, 2 U.S. 419, 474 (1793).

12 The Paquete Habana, 175 U.S. 677, 700 (1900).

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encroachments? The imbecility of our government even forbids them to treat with

us.13

Thus, as two scholars have recently explained,

[A] core purpose of American constitution-making was to facilitate the admission

of the United States into the European-based system of sovereign states governed

by the law of nations. The fundamental purpose of the Federal Constitution was to create a nation-state that the European powers would recognize, in the practical

and legal sense, as a civilized state worthy of equal respect in the international community. The framers believed that the republic could not expect equal membership unless it demonstrated its respectability as defined by contemporary

norms, which in turn depended on whether it could, or would, comply with its

international duties. The framers therefore embedded a set of interrelated and

innovative mechanisms into the text of the Constitution to ensure that the new

republic would comply with its obligations under treaties and the law of nations.14

The proposition that CIL is part of our law has received significant scholarly criticism of late, especially as applied to the forms of modern CIL that regulate a states treatment of its own citizens. The proposition has many scholarly defenders as well, however.

An important question left open by The Paquete Habana concerns the extent to which U.S.

courts may enforce CIL against officials of the federal Executive Branch. The Paquete Habana

instructed the courts to enforce CIL when there is nocontrolling executive or legislative act.15 When, if ever, is the act of an executive official that violates CIL, but that is otherwise authorized

under U.S. domestic law, a controlling executive act? At least one lower court has concluded that courts may not compel the Executive to comply with CIL in the face of conflicting decisions

of the President and other high-level officials.16 (Note, however, that the Court in The Paquete

Habana itself enforced CIL against federal officials.)

Relatedly, and of particular importance to this final portion of our Week One problem, the

Supreme Court has recently reaffirmed in several different contexts that, at a minimum, domestic

statutes should, where possible, be interpreted consistently with CILthe so-called Charming Betsy canon of statutory construction, which assumes that Congress does not intend to act in a way

13 THE FEDERALIST NO. 15 (Mentor ed., 1961).

14 David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of

Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. REV. 932, 935-36 (2010).

15 The Paquete Habana, 175 U.S. at 700.

16 Garcia-Mir v. Meese, 788 F2d 1446, 1454-55 (11th Cir. 1986).

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that results in the United States breaching of its international obligations unless the legislature says

so expressly.17

C. THE LAW OF EXTRATERRITORIAL ABDUCTION

Whether it would be lawful for the FBI to abduct Hunter or Martin and bring them to the

United States for criminal trial is a question that depends upon both U.S. domestic law and

customary international lawand upon the relationship between these two bodies of law. We will begin our summary with the relevant international law.

1. Customary International Law

Would the FBIs forced return to the United States of Hunter and Martin from France and Russia, respectively, violate international law?

a. Basic Prohibition. To ask the question is (at least to adherents of the classical

model of IL) to answer it: There is little dispute that, unless some exception applies (see below),

longstanding international law norms of sovereignty and territorial integrity prohibit law

enforcement officers of one state from exercising their functions in the territory of another state.

Section 432(2) (Measures in Aid of Enforcement of Criminal Law) of the Restatement (Third) of

the Foreign Relations Law of the United States (1987) sets forth the relevant customary rule:

432. Measures in Aid of Enforcement of Criminal Law

.

(2) A states law enforcement officers may exercise their functions in the territory of

another state only with the consent of the other state, given by duly authorized officials of

that state.

COMMENTS & ILLUSTRATIONS

Comment:

b. Territoriality and law enforcement. It is universally recognized, as a corollary

of state sovereignty, that officials of one state may not exercise their functions in the

territory of another state without the latters consent. Thus, while a state may take certain

measures of nonjudicial enforcement against a person in another state, its law enforcement

17 See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (citing Murray v. The Schooner

Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ([A]n act of congress ought never to be construed to violate the law of nations if any other possible construction remains.)).

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officers cannot arrest him in another state, and can engage in criminal investigation in that

state only with that states consent. . . .

c. Consequences of violation of territorial limits of law enforcement. If a states

law enforcement officials exercise their functions in the territory of another state without

the latters consent, that state is entitled to protest and, in appropriate cases, to receive

reparation from the offending state. If the unauthorized action includes abduction of a

person, the state from which the person was abducted may demand return of the person,

and international law requires that he be returned. If the state from which the person was

abducted does not demand his return, under the prevailing view the abducting state may

proceed to prosecute him under its laws.

REPORTERS NOTES

1. Exercise of enforcement functions in foreign state without consent. On

numerous occasions, police or other law enforcement officers have pursued the trail of a

suspect from their own to another state. The states in whose territory such activity occurred

have usually protested such action as violations of international law. In some instances the

offending officials were punished by the state whose territory was violated. In 1973, for

instance, an Italian inspector of finances was arrested in Switzerland for making inquiries

there about movement of contraband toward Italy. In another episode an Italian inspector

was working with French police in an effort to arrest in France an Italian national accused

of killing two Italian policemen. When the Italian policeman, believing his life to be in

danger, drew his gun and wounded the suspect, he was indicted in France on a number of

criminal charges. In a case that received wide attention, two French customs officials

traveled to Switzerland on several occasions in 1980 to interrogate a former official of a

Swiss bank, with a view to gaining information about French citizens believed to be hiding

funds from the French tax and exchange control authorities. The person interrogated

informed the Swiss federal prosecutors office, which caused the Swiss police to arrest the

French officials on their next visit. The officials were convicted of committing prohibited

acts in favor of a foreign state, as well as of violation of the Swiss banking and economic

intelligence laws. Even though the two French defendants were engaged in official

business on behalf of the government of a friendly foreign state, they were given substantial

sentences.

* * *

As the chief reporter for the Restatement later wrote: When done without consent of the foreign government, abducting a person from a foreign country is a gross violation of international

law and gross disrespect for a norm high in the opinion of mankind. It is a blatant violation of the

territorial integrity of another state; it eviscerates the extradition system (established by a

comprehensive network of treaties involving virtually all states).18

18 Louis Henkin, A Decent Respect to the Opinions of Mankind, 25 J. MARSHALL L.REV. 215, 231 (1992).

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The United States has never taken issue with this ruleindeed, it has long insisted upon it, as explicated in congressional testimony of State Legal Adviser Abraham Sofaer in 1989:

Territorial integrity is a cornerstone of international law; control over territory is one of the most fundamental attributes of sovereignty. Green Hackworth, one of

my predecessors as Legal Adviser, explained in1937 that it is a fundamental principle of the law of nations that a sovereign state is supreme within its own

territorial domain and that it and its nationals are entitled to use and enjoy their

territory and property without interference from an outside source. 5 Whiteman, Digest of International Law 183 (1965). Forcible abductions from a foreign State

clearly violate this principle. In his important Survey of International Law in 1949,

Sir Hersh Lauterpacht wrote of the obligation of states to refrain from performing jurisdictional acts within the territory of other states except by virtue of general or

special permission. Such acts include, for instance, the sending of agents for the

purpose of apprehending within foreign territory persons accused of having

committed a crime. Lauterpacht, E. (ed.), International Law, Vol. I, 487-488 (1970). See also Section 433, Restatement (Third) of the Foreign Relations Law of

the United States.

The United States has repeatedly associated itself with the view that unconsented

arrests violate the principle of territorial integrity. In 1876, for example, Canadian

authorities subdued a convict in Alaska in the course of transferring him between

two points in Canada. Secretary Fish protested the action, contending a violation of the sovereignty of the United States has been committed. The abducted individual was released following an official British inquiry. In another case, the

Canadian government abducted two persons from the United States and brought

them back to Canada for trial. After an official complaint by the United States, the

Canadian government apologized and offered to return the two. Satisfied with the

apology, the United States permitted Canada to try the two men for their felonies.

On the other side of the ledger, in 1871 British authorities protested the seizure by

a U.S. citizen of an individual from Canada. Although the United States denied

any official involvement in the abduction, the United States acceded to a British

request that charges be dropped against the abducted individual, and informed the

British, I trust that I need not assure you that the government of the United States would lend no sanction to any act of its officers or citizens involving a violation of

the territorial independence or sovereignty of her Majestys dominions. More recently, two American bail bondsmen seized an individual from Canada and

brought him to Florida for trial before the State courts. After vigorous Canadian

protest, and intervention by the federal government, the State of Florida released

12

the individual; the bail bondsmen were extradited to Canada and convicted.19

b. Exceptions. There are two primary circumstances where international law

arguably does not prohibit such an extraterritorial arrest: (i) where the host nation consents; and

(ii) where the arrest is a proper means of self-defense against future attack against the arresting

country and the host nation is unable or unwilling to ameliorate that threat.

i. Consent. As Restatement section 432(2) indicates, such an extraterritorial

arrest does not violate customary international law where it is done with the consent of the other state, given by duly authorized officials of that state. As the Draft Articles on State Responsibility (a document generally seen as reflecting customary international law) explain, [v]alid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in

relation to the former State to the extent that the act remains within the limits of that consent.20 This is simply a corollary of the principle that consent or acquiescence by the offended state waives

any right it possessed, and heals any violation of international law.21

So, for example, many news reports and commentators have concluded that the United

States use of lethal force against al Qaeda members in Afghanistan, Iraq, Yemen, Somalia, and Pakistan has often been done with the (undisclosed) consent of high-level officials of those

countries.22 And, as one commentator explains:

[T]he United States is hardly the only state that has received or relied on consent to

use force against armed non-state actors. For example, Bahrain recently invited

Saudi Arabian forces into Bahrain to help manage internal protests. The Saudi

Arabian military repeatedly used force in 2009 in Yemen against the Houthi rebels,

allegedly with Yemens consent.23

There is little, if any, established international law addressing the question of which

officials of the host state are duly authorized to provide the requisite consent. Presumably, that is a question to be determined by the domestic law of the state in question.

19 FBI Authority to Seize Suspects Abroad: Hearing Before the House Subcomm. on Civil & Const. Rights of the

Comm. on the Judiciary, 101st Cong., 1st Sess. 31-33 (1989) (prepared statement of Abraham D. Sofaer, Legal

Adviser, U.S. Dept of State). See also U.S. Rejects Soviet Charges Concerning Refusal of Two Russian Teachers to Return to Soviet Union, 19 DEPT OF STATE BULL. 251, 253 (1948) (when the Soviet Union attempted to kidnap a Soviet citizen within the territory of the United States, the State Department declared that the Government of the United States cannot permit the exercise within the United States of the police power of any foreign government).

20 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 20,

Annex to U.N. General Assembly Res. 56/83 (Dec. 12, 2001), available at http://www.un.org/law/ilc.

21 See 1 G. SCHWARZENBERGER, MANUAL OF INTERNATIONAL LAW 162 (4th ed. 1960).

22 See, e.g., Scott Shane, Yemen Sets Terms of a War on Al Qaeda, N.Y. TIMES, Dec. 4, 2010 (reporting that in a 2009

meeting between Yemeni President Saleh and President Obamas top counterterrorism adviser, Saleh gave the U.S. an open door to engage in counterterrorism operations on Yemeni national territory).

23 Ashley S. Deeks, Consent to the Use of Force and International Law Supremacy, 54 HARV. INTL L.J. 1, 31 (2013).

13

Two other matters render the doctrine of consent even more uncertain in some cases. First, assuming the consent is provided by duly authorized officials, it does not matter for purposes of CIL compliance by the requesting state whether the consent violates the domestic law

of the host state, or the host states treaty obligations. This is obviously germane in our case, since any consent by Russian or French officials for the United States to abduct Hunter and/or Martin

might violate Russia or Frances obligations under the European Convention. But from the perspective of the United States, host-nation consent would preclude a violation of the CIL norm

by the United States even if the consenting Russian and/or French officials are transgressing their

own legal obligations.

Secondand often related to the question of whether consent violates the host states domestic law or treaty obligationsconsent is often provided in secret. As one scholar has written: Consent to the use of force generally anticipates military, intelligence, or law enforcement activities that demand a level of secrecy. Because many of these activities are carried out in a

clandestine manner in locations inaccessible to journalists and non-governmental organizations,

reporting on those activities tends to involve speculation and surmise. Consent that fails to comply

with the host states domestic laws thus imposes relatively few costs, because there is little transparency about what the host state consented to and what actions transpired pursuant to that

consent.24 This is especially the case when it comes to action against alleged terrorists, particularly when they are not nationals of the host state: The host state may face significant pressure to address the problems posed by these non-state actors, but be unable to do so. Therefore,

it has incentives to be sloppy about adhering to its own laws if doing so allows another state to

curb those problems.25 In addition to raising serious questions about the consenting officials own obligations to comply with their domestic laws, this strategy naturally comes with significant

political and legal risk if the unlawful consent is ever revealed.26 But from the perspective of

international law, consent of the host nation is consent, whether or not it is ever publicly

acknowledged. (On the other hand, if it is not acknowledged, that presents a significant difficulty

in terms of the acting nations ability to explain internationally why its action comported with international law.)

You should not simply assume that nations offer such consent cavalierly, or as a matter of

course. There can be huge costs, even if efforts are made to insist that the actors not acknowledge

the cooperative arrangement. (Imagine, for instance, the political fallout if it were to become

known that a U.S. official allowed foreign agents to abduct a U.S. citizen on U.S. soil.) A very

recent example demonstrates the point. In October of 2013, Navy SEALs went into Libya and

abducted Abu Anas al-Liby, who has been indicted in the United States as an alleged leader in the

al Qaeda conspiracy to bomb the U.S. embassies in Dar es Salaam and Nairobi in August 1998.

24 Id. at 24.

25 Id. at 25.

26 See id. at 38 n.156. So, for example, Polish prosecutors have endeavored to try two of Polands former leaders in a special tribunal for their apparent decision to consent to the CIAs alleged operation of a secret detention facility in Poland. See Marcin Sobczyk, The Slow Revelation of Polands CIA Detention Facilities, WALL ST. J., Aug. 4, 2010; Vanessa Gera & Monika Scislowska, Guantanamo Captive Gets Victim Status in Polish Secret Prison Probe,

MIAMI HERALD, Jan. 20, 2011.

14

Although Libyas interim government immediately issued a public demand for an apology from the United States for what it called a kidnapping, anonymous officials promptly leaked that after months of lobbying by American officials, the Libyans had consented to the United States operations, at least as long as they could protest in public.27 This leak of alleged Libyan consent resulted in riots and major security threatsindeed, militia promptly kidnapped the Libyan Prime Minister (although he was released shortly thereafter).28

ii. Self-Defense. A nation may use force, and thereby breach another states sovereignty, in order to kill or (in this case) capture someone who poses a threat to engage in an

armed attack against the acting nation, so long as such use of force is necessary to suppress, and

proportionate to the need to suppress, the threatened armed attack. This right of self-defense is

not unlimitedit does not, for example, permit the breach of sovereignty in order merely to apprehend, and bring to justice, those who have committed crimes in the past. Non-consensual force can be used in another nations sovereign territory only prospectively, and, even then, the standard view is that the requirement of necessity means that such force can only be used in order

to interdict future imminent harm.29 In recent years, some (including prominent U.S. officials) have argued that the requirement of imminence of the threat should be adjusted with respect to transnational terrorist groups such as al Qaeda, because although it is virtually certain that such

groups will strike against civilian populations, the nature of the groups makes it almost impossible

to ascertain in advance when and where such attacks will occur.30 Most nations, however, continue

to insist that the imminence criterion has real teethi.e., that force may be undertaken only as

27 Michael S. Schmidt & Eric Schmitt, U.S. Officials Say Libya Approved Commando Raids, N.Y. TIMES (Oct. 9,

2013), available at http://www.nytimes.com/2013/10/09/world/africa/us-officials-say-libya-approved-commando-

raids.html?pagewanted=all&_r=0.

28 See Carlotta Gall, Show of Power by Libya Militia in Kidnapping, N.Y. TIMES (Oct. 10, 2013), available at

http://www.nytimes.com/2013/10/11/world/africa/libya.html?_r=0.

29 The requirement that the threat be of imminent harm derives from the classic formulation of a self-defense justification offered by U.S. Secretary of State Daniel Webster in 1837a definition that became the template for the evolving customary international law. Webster argued that the use of force to suppress a threat in another states territory can be justified only if the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation. Letter from Daniel Webster, U.S. Secy of State, to Lord Ashburton, British Plenipotentiary (Aug. 6, 1842).

30 See, e.g., Remarks of John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, to the Program on Law and Security, Harvard Law School, Cambridge, Mass. (Sept. 16, 2011):

We are finding increasing recognition in the international community that a more flexible

understanding of imminence may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced

imminence in more traditional conflicts. After all, al-Qaida does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it

attacks. Nonetheless, it possesses the demonstrated capability to strike with little notice and cause

significant civilian or military casualties. Over time, an increasing number of our international

counterterrorism partners have begun to recognize that the traditional conception of what constitutes

an imminent attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.

15

a last resort, when no other mechanism will suffice to divert or prevent an immediate threat of

armed attack.

In all events, the requirement of proportionality mandates that the response be no more

than what is necessary to prevent the armed attack and remove the threat of reasonably foreseeable

attacks in the future.

Whether such use of force in self-defense is necessary and proportional depends in large

measure on whether the host state is capable of suppressing the threat. This has given rise to what is colloquially known as the unwilling or unable test, which requires a victim state, before using force in the territorial states territory without consent, to ascertain whether the territorial state is willing and able to address the threat posed by the non-state group. If the territorial state

is willing and able, the victim state may not use force in the territorial state, and the territorial state

is expected to take the appropriate steps against the non-state group. If the territorial state is

unwilling or unable to take those steps, however, it is lawful for the victim state to use that level

of force that is necessary (and proportional) to suppress the threat that the non-state group poses.31

Beyond these general principles, however, international law does not provide much in the

way of detailed guidance about what, exactly, the unwilling or unable test requires. (Indeed, there is not even an international consensus that the unwilling or unable test is an established customary norm.) In the absence of such guidance, it is commonplacealthough not uniformly the casethat when a state attempts to publicly justify its use of force in another states territory in this context, it claims that it first asked the territorial state to take the requisite steps to suppress the non-state actors activities, whether by arresting them, ejecting the actors from the country, transferring them to the victim state, or using military force against them.32 And, almost as frequently, if the host state complains about the breach of sovereignty, it publicly denies that its

efforts were inadequate to address the threat.

c. Enforcement of the CIL Norm and Other Ramifications. If a state violates the

CIL norm against law enforcement arrests in the territory of another state, what are the possible

remedies for such a breach? Historically, the only party that has been able to enforce the rule in any meaningful sense is the state whose sovereignty is breached. As Reporters Note 3 to Restatement (Third) section 432 explains, [u]nder prevailing practice,, states ordinarily refrain from trying persons illegally brought from another state only if that state demands the persons return. In a number of cases, protest by the offended state resulted in the release or return of the

accused person.33 As that same Reporters Note illustrates, however, on occasion the offended

31 Ashley S. Deeks, Unwilling or Unable: Toward a Normative Framework for Extra-Territorial Self-Defense, 52 VA. J. INTL L. 483, 487-88 (2012).

32 Id. at 521.

33 Recall several historical examples provided in Legal Adviser Sofaers 1989 congressional testimony, quoted supra note 19 and accompanying text. The Comment to Restatement (Third) section 432 asserts, without citation of any

authority, that this practice is compelled by customary international law: If the unauthorized action includes abduction of a person, the state from which the person was abducted may demand return of the person, and

international law requires that he be returned.

16

state makes no such demand, and in those cases the violation of sovereignty may be addressed

through other diplomatic arrangements:

In 1960, the Nazi war criminal Adolf Eichmann was abducted from Argentina by

agents of the State of Israel, and taken to Israel for trial on charges stemming from

Eichmanns role in the Holocaust. The United Nations Security Council adopted a resolution declaring that such acts, which affect the sovereignty of a Member State and therefore cause international friction, may, if repeated, endanger international

peace and security. S.C. Res. 138, 15 U.N. SCOR, Resolutions and Decisions, at 4. Thereafter, Argentina and Israel reached a settlement that did not call for

Eichmanns return. When the defense of forcible abduction was raised during the trial of Eichmann, the Israeli district court ruled, In view of the settlement of the incident between the two countries before trial brought, judgment may without

hesitation be based on the continuous line of British, Palestinian and American case

law, beginning with Ex parte Scott and going on to Frisbie v. Collins and after. Attorney General v. Eichmann, 36 Intl L. Rep. 18, 70-71 (Dist. Ct. Israel, 1961), affirmed, 36 Intl L. Rep. 277 (Sup. Ct. Israel 1962).

Students may wonder: Does the captured individual have any recourse if (s)he was

abducted in violation of the sovereignty of another state? Can (s)he, for example, avoid criminal

prosecution and insist upon return to the state from which (s)he was taken? Probably not. In 1935,

the Draft Convention on Jurisdiction with Respect to Crime proposed by the Harvard Research in

International Law would have provided that no State shall prosecute or punish any person who has been brought within its territory ... by recourse to measures in violation of international law or

international convention without first obtaining the consent of the State or States whose rights have

been violated by such measures.34 And there are rare cases in which states have appeared to adopt such a practice.35 But customary international law itself does not categorically prohibit the

criminal trial of the wrongfully captured person.36

34 Draft Convention on Jurisdiction with Respect to Crime, 29 AM. J. INTL L. 435, 442, 623-32 (Supp. 1935).

35 See, for example, this account offered by the International Criminal Tribunal for the Former Yugoslavia in

Prosecutor v. Nikolic, Case No. IT-94-2-AR73, 22 (June 5, 2003):

[I]n State v. Ebrahim [1991], the Supreme Court of South Africa had no hesitation in setting aside

jurisdiction over an accused kidnapped from Swaziland by the security services. Similarly, in the

Bennet case [1993], the House of Lords granted the appeal of a New Zealand citizen, who was

arrested in South Africa by the police and forcibly returned to the United Kingdom under the pretext

of deporting him to New Zealand. It found that if the methods through which an accused is brought

before the court were in disregard of extradition procedure, the court may stay the prosecution and

order the release of the accused.

36 A comment in the Restatement states that if the offended state demands the return of the abducted person,

international law requires that he be returned. Restatement 432, Comment c. Even if this were a customary international law requirement (a proposition for which the Restatement does cite any authority), the Restatement does

not suggest that a criminal court must decline jurisdiction over the abducted person in order to ensure the abducting

nations compliance with that purported obligation to return. See also United States v. Alvarez-Machain, 504 U.S. 655, 669 (1992) (reasoning that even if the defendants abduction by agents acting at the direction of the U.S. government had been in violation of general international law principles and Mexico had protested the abduction, the decision of whether respondent should be returned to Mexicois a matter for the Executive Branch).

17

The domestic law of most countries likewise offers no such recourse. As another

Reporters Note (No. 2) to Restatement (Third) section 432 explains,

Nearly all states have followed the rule that, absent protest from other states, they

will try persons brought before their courts through irregular means, whether or not

abduction from another state was in violation of international law. English cases

going back to the early nineteenth century have followed that rule. See, e.g., Ex

parte Scott, 9 B. & C. 446, 109 Eng. Rep. 166 (K.B. 1829); Ex parte Elliott, [1949]

1 All E.R. 373 (K.B.). The United States Supreme Court so held in the leading case

of Ker v. Illinois, 119 U.S. 436 (1886). More recently the Supreme Court of France

so held in In Re Argoud, [1964] Bull.Crim. 420, [1965] Annuaire Francais 935, 45

Intl L. Rep. 90 (Cass.Crim. 4 June, 1964).

This principle, often referred to as male captus, bene detentus (wrongly captured, properly detained), has long been followed in the United States, where the general rule is that a

criminal defendant cannot defeat personal jurisdiction by asserting the illegality of the procurement of his presence.37

It is important to emphasize, however, that even if breach of the CIL rule cannot be

judicially enforced, it is hardly costless, or something a nation can do without regard to any

possible ramifications. In fact it is very rare for a state, in lieu of extradition, to seize a suspect

from the territory of a nonconsenting state for purposes of putting the defendant on trial in the

abducting state. Such cases are very much the exception, not the ruleand for good reason. In his 1989 congressional testimony, Legal Adviser Sofaer stressed that even extraterritorial arrests

that may be lawful under CIL because of a valid claim of self-defense nevertheless entail grave

37 United States v. Darby, 744 F.2d 1508, 1530 (11th Cir. 1984). See, e.g., Frisbie v. Collins, 342 U.S. 519, 522 (1952)

(due process did not require Michigan criminal court to reject jurisdiction where defendant had allegedly been

abducted by Michigan officials from Illinois in violation of Illinois and federal law); United States v. Crews, 445 U.S.

463, 474 (1980) (An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. Respondent himself is not a suppressible fruit and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt.); Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (adhering to the established rule that illegal arrest or detention does not void a subsequent conviction).

The Supreme Court has stated in dicta that we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government

from invoking judicial processes to obtain a conviction. United States v. Russell, 411 U.S. 423, 431-32 (1973). And in one case, a court of appeals held that the trial court might have to divest itself of personal jurisdiction over a criminal

defendant who had been kidnapped abroad, on the ground that due processprotects the accused against pretrial illegality by denying to the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on

its part. United States v. Toscanino, 500 F.2d 267, 275 (2d Cir. 1974). (On remand, however, the trial court determined that the evidence did not show participation by United States officials in abduction or torture of defendant

so as to require dismissal of drug charges on jurisdictional grounds. United States v. Toscanino, 398 F.Supp. 916

(E.D.N.Y. 1975).) Courts of appeals have subsequently agreed that the precedential effect of Toscaninos holding should be, at most, limited to cases in which the governments conduct was as outrageous as in Toscanino itself, where the defendant was kidnapped, beaten and tortured by his captors. See, e.g., United States ex rel. Lujan v. Gengler, 510

F.2d 62, 65 (2d Cir. 1975).

18

potential implications for US personnel, for the United States, and for our relations with other

States. Here is Sofaers account of some of these grave potential implications:

The actual implications of a nonconsensual arrest in foreign territory may vary with

such factors as the seriousness of the offense for which the apprehended person is

arrested; the citizenship of the offender; whether the foreign government itself had

tried to bring the offenders to justice or would have consented to the apprehension

had it been asked; and the general tenor of bilateral relations with the United States.

However, any proposal for unilateral action would need to be reviewed from the

standpoint of a variety of potential policy implications.

First, such operations create substantial risks to the U.S. agents involved. Actions

involving arrests by U.S. officials on foreign territory require plans to get those

officials into the foreign State, to protect those officials while in the foreign State,

to remove the officials with the person arrested from that State, and finally to bring

them safely back to United States territory. While the officials involved might

include FBI agents seeking to make an arrest, such operations may also require the

use of a wide range of U.S. assets and personnel.

Apart from being killed in action, U.S. agents involved in such operations risk

apprehension and punishment for their actions. Our agents would not normally

enjoy immunity from prosecution or civil suit in the foreign country involved for

any violations of local law which occur.* (In 1952, the Soviets abducted Dr. Walter

Linse from the U.S. sector of Berlin to the Soviet sector, where he was tried and

convicted by a Soviet Tribunal. Two of Linses abductors were subsequently apprehended in West Berlin and sentenced for kidnapping.)

Moreover, many States will not accord POW status to military personnel

apprehended in support of an unconsented law enforcement action. The United

States could also face requests from the foreign country for extradition of the

agents. Obviously the United States would not extradite its agents for carrying out

* [Editors Note: Sofaer here was referring to the fact that, regardless of whether it violates CIL, such an extraterritorial arrest will almost invariably violate the domestic criminal law (e.g., the kidnapping statute) of the state in which it

occurs. So, for example, Italian authorities have charged that at least 23 Americans were complicit in the February

2003 abduction of Assan Osama Nasr (aka Abu Omar) from a Milan street and the rendering of Abu Omar to his native Egypt, where he was tortured. Italian authorities secured arrest warrants for seven Italians and 26 Americans,

most of whom were CIA employees and one of whom was an Air Force commander. See Tracy Wilkinson, Warrants

for 3 CIA Officers Issued in Imams Abduction, L.A. TIMES, July 6, 2006, at A4. None of the Americans returned to Italy to face the charges, and they are considered fugitives in Italy. When efforts by Italian prosecutors to extradite

them were unsuccessful, the Italian court commenced a trial in absentia against the U.S. defendants. On November

4, 2009, an Italian judge convicted all 23 of kidnapping. The judge sentenced Robert Seldon Lady, the former CIA

base chief in Milan, to eight years and sentenced the 22 other Americans, including an Air Force colonel and 21 CIA

operatives, to five years imprisonment. See Rachel Donadio, Italy Convicts 23 Americans for C.I.A. Renditions, N.Y. TIMES, Nov. 5, 2009, at A1.

This threat of criminal prosecution of the abductors may even be present where government officials provided

some form of consent for the abduction, especially where, as in Italy, the prosecutors act independently of the chief

executive and the intelligence services.]

19

an authorized mission, but our failure to do so could lead the foreign country to

cease extradition cooperation with us. Moreover, our agents would be vulnerable

to extradition from third countries they visit.

Beyond the risks to our agents, the possibility also exists of suits against the United

States in the foreign countrys courts for the illegal actions taken in that country. . . .

An unconsented, extraterritorial arrest would inevitably have an adverse impact on

our bilateral relations with the country in which we act. Less obviously, such

arrests could also greatly reduce law enforcement cooperation with that or other

countries. The United States has attached substantial importance over the past

decade to improving bilateral and multilateral law enforcement cooperation. For

many countries, these agreements reflect the commitment of the United States to

confine itself to cooperative measures, rather than unilateral action, in the pursuit

of U.S. law enforcement objectives.

If the United States disregards these agreed law enforcement norms and

mechanisms, and acts unilaterally, we must be prepared for States to decline to

cooperate under these arrangements or to denounce them. Foreign States have

reacted adversely to extraterritorial US laws, even when those laws involve

enforcement action taken only in the United States. The breadth of our discovery

practices and antitrust laws have led some States to pass blocking and secrecy

statutes that preclude cooperation with the United States. Their reaction to

unconsented extraterritorial arrests could be more extreme.

Finally, we need to consider the fact that our legal position may be seized upon by

other nations to engage in irresponsible conduct against our interests. Reciprocity

is at the heart of international law; all nations need to take into account the reactions

of other nations to conduct which departs from accepted norms.38

Earlier testimony by Sofaer was even more pointed with respect to the final concern he

raised in that 1989 statementnamely, the establishment of a precedent that others might follow to the detriment of the United States: Can you imagine us going into Paris and seizing some person we regard as a terrorist? [H]ow would we feel if some foreign nationlet us take the United Kingdomcame over here and seized some terrorist suspect in New York City, or Boston, or Philadelphia,because we [had] refused through the normal channels of international, legal communications, to extradite that individual?39

Similarly, in a major speech in May 2013, President Obama stressed that the United States

will engage in [c]apture operations only against suspects who may lawfully be captured or

38 Sofaer Prepared Statement, in FBI Authority to Seize Suspects Abroad, supra note 19, at 38-41.

39 Bill To Authorize Prosecution of Terrorists and Others Who Attack U.S. Government Employees and Citizens

Abroad: Hearing before the Subcomm. on Security and Terrorism of the Senate Comm. on the Judiciary, 99th

Cong., 1st Sess. 63 (1985) (testimony of Legal Adviser Sofaer).

20

otherwise taken into custody by the United States and only when the operation can be conducted

in accordance with all applicable law and consistent with our obligations to other sovereign

states.40 The Obama Administration subsequently did engage in some capture operations overseas in order to bring suspects to criminal trial. Although such operations might have

complied with international law, they sometimes involved circumstances in which the international

law justification was not immediately apparent or articulated--such as in the al-Liby abduction

discussed supra at __.

2. U.S. Domestic Law

The answer to the international law question does not, in and of itself, determine what the

President can lawfully do in this situation. U.S. domestic law is relevant, as well. For example,

even if an extraterritorial arrest of Martin or Hunter by the FBI would not violate international law,

the Bureau can only make the arrest if it has some authority to do so under U.S. law, such as

pursuant to a statute. Conversely, if such an arrest would violate CIL, that does not necessarily

mean the President is powerless to order the arrest: It is well-established, for example, that

Congress has the constitutional authority to authorize the United States to violate international law.

Such a violation does not make the conduct lawful for international purposesto the contrary, as explained above, in such a case the United States would risk whatever the possible sanctions and

costs might be under international law and in the nations diplomatic relations with other states. But if the political branches choose to accept those consequences in the international sphere, the

Constitution generally does not disable them from undertaking the action in question.

Two formal, published opinions of the Department of Justice Office of Legal Counsel

(OLC) speak directly to the question of the domestic law basis for such an FBI extraterritorial

arrest. As part of your Thursday discussions, you will have to decide whether the President

should follow the more restrictive advice of the earlier, 1980 OLC opinion or the more

permissive advice contained in the 1989 OLC opinion (or some combination).

First, in 1980 OLC issued an opinion that the FBI had no domestic law authority to abduct

a fugitive residing in a foreign state when those actions were contrary to customary international

law.41 Implicitly relying upon the Charming Betsy canon that statutes are to be construed where

possible to be consistent with international law, OLC concluded that the general statute authorizing

the FBI to investigate and arrest individuals for violations of U.S. law does not confer authority to

arrest individuals in contravention of CIL:

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 restrictions and its

general authorizationto detect and prosecute crimes against the United States

40 Remarks by the President at the National Defense University (Washington, D.C., May 23, 2013),

http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university. 41 Extraterritorial Apprehension by the Federal Bureau of Investigation, 4B OP. OFF. LEGAL COUNSEL 543 (1980).

21

would appear to be broad enough to sanction activity toward this end no matter

where it was undertaken.

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.

A conventional statutory construction rule regarding the scope of an officials authority states that where a statute imposes a duty, it authorizes by implication all

reasonable and necessary means to effectuate such duty. Given the targets fugitive status and the inadequacy of extradition, it can be forcefully argued that [a

hypothetical proposed] operation [against such a fugitive target] 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

mechanism have received substantial criticism from international law specialists

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.

Judges in abduction cases have expressed concern that such extraordinary

apprehensions denigrate the rule of law in the name of upholding it. 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 FBI.

[This] line[] of analysis suggest[s] 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 herebecause 533 could not contemplate a violation of international law.

In 1989, however, OLC issued another opinion, excerpted below, that overruled the

conclusions in its 1980 opinion. The 1989 OLC opinion reasoned that the Charming Betsy canon

should not apply, and that Congress therefore should be understood to have authorized the Bureau

to make arrests in violation of CIL. Moreover, the opinion concluded that even in the absence of

such statutory authority, the President would possess constitutional authority to order an arrest,

notwithstanding that it would violate CIL:

Authority of the Federal Bureau of Investigation to Override International Law in

Extraterritorial Law Enforcement Activities

13 OP. OFF. LEGAL COUNSEL 163 (1989)

First, we conclude that, with appropriate direction, the FBI may use its broad statutory

authority under 28 U.S.C. 533(1) and 18 U.S.C. 3052 to investigate and arrest

individuals for violations of United States law even if those investigations and arrests are

not consistent with international law.

22

The 1980 Opinion addressed the legal implications of a proposed operation in which FBI

agents would forcibly apprehend a fugitive in a foreign country that would not consent to

the apprehension. That Opinion acknowledges that 28 U.S.C. 533(1), the statute

authorizing FBI investigations, contains no explicit geographical restrictions. It also refers

to a previous opinion issued by this Office that concluded that the statutes general authorization to detect and prosecute crimes against the United States appears broad

enough to include such law enforcement activity no matter where it is undertaken. The

1980 Opinion asserts, however, that customary and other international law limits the reach

of section 533(1). Under customary international law, as viewed by the 1980 Opinion, it

is considered an invasion of sovereignty for one country to carry out law enforcement

activities within another country without that countrys consent. Thus, the Opinion concludes that section 533(1) authorizes extraterritorial apprehension of a fugitive only

where the apprehension is approved by the asylum state.

[T]he [1980] Opinion implicitly relies on the principle of statutory construction that

statutes should be construed, when possible, so as to avoid conflict with international law.

The Opinion notes that a statute imposing a duty ordinarily is construed to authorize all

reasonable and necessary means of executing that duty. The Opinion concludes that

although the law enforcement methods at issue may be necessary to carry out the FBI

agents duties under section 533(1), those methods are unreasonable and hence, unauthorized, if executed in violation of international law. Thus, the Opinion concludes

that without asylum state consent, the FBI is acting outside the bounds of its statutory authority when it makes an apprehension of the type proposed hereeither 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.

A. The Scope of the FBIs Statutory Authority

The general investigative authority of the FBI derives from 28 U.S.C. 533(1), which

provides that [t]he Attorney General may appoint officials to detect and prosecute crimes against the United States. This provision was first enacted in 1921 as part of the Department of Justice Appropriations Act, ch. 161, 41 Stat. 1367, 1411 (1921). As

originally enacted, it also provided that the officials appointed by the Attorney General

shall be vested with the authority necessary for the execution of [their] duties. Id. This provision was carried forward in successive appropriations acts and received permanent

codification in 1966. Pub. L. No. 89-554, 4(c), 80 Stat. 378, 616 (1966). At that time,

the reference to necessary authority was dropped as surplusage because the appointment of the officials for the purposes indicated carries with it the authority necessary to perform

their duties. H.R. Rep. No. 901, 89th Cong., 1st Sess. 190 (1965).

The FBIs arrest authority derives from 18 U.S.C. 3052, which provides:

The Director, Associate Director, Assistant to the Director, Assistant Directors,

inspectors, and agents of the Federal Bureau of Investigation of the Department of

Justice may carry firearms, serve warrants and subpoenas issued under the authority

of the United States and make arrests without warrant for any offense against the

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United States committed in their presence, or for any felony cognizable under the

laws of the United States if they have reasonable grounds to believe that the person

to be arrested has committed or is committing such felony.

We believe, consistent with earlier opinions of this Office, that sections 533(1) and 3052

authorize extraterritorial investigations and arrests. Neither statute by its terms limits the FBIs authority to operations conducted within the United States.

B. The Effect of Customary International Law on the FBIs Extraterritorial Powers

It is well established that both political branchesthe Congress and the Executivehave, within their respective spheres, the authority to override customary international law.

Indeed, this inherent sovereign power has been recognized since the earliest days of the

Republic.

The understanding that the political branches have the power under the Constitution to

exercise the sovereigns right to override international law (including obligations created by treaty) has been repeatedly recognized by the courts. See The Paquete Habana, 175

U.S. 677, 700 (1900) (courts must apply customary international law unless there is a treaty

or a controlling executive or legislative act to the contrary); The Chinese Exclusion Case,

130 U.S. 581, 602 (1889) (noting that [t]he question whether our government is justified in disregarding its engagements with another nation is not one for the determination of the

courts); Diggs v. Shultz, 470 F.2d 461, 466 (D.C. Cir. 1972) (stating that [u]nder our constitutional scheme, Congress can denounce treaties if it sees fit to do so), cert. denied, 411 U.S. 931 (1973); Tag v. Rogers, 267 F.2d 664, 668 (D.C. Cir. 1959) (concluding that

[w]hen, however, a constitutional agency adopts a policy contrary to a trend in international law or to a treaty or prior statute, the courts must accept the latest act of that

agency), cert. denied, 362 U.S. 904 (1960); The Over the Top, 5 F.2d 838, 842 (D. Conn. 1925) (stating that [i]nternational practice is law only in so far as we adopt it, and like all common or statute law it bends to the will of the Congress). Leading commentators also agree that the United States, acting through its political branches, has the prerogative to

take action in disregard of international law.* Indeed, the sovereigns authority to override customary international law necessarily follows from the nature of international law itself.

* As Professor Henkin has noted, the Constitution does not forbid the President (or the Congress) to violate international law, and the courts will give effect to acts within the constitutional powers of the political branches

without regard to international law. LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 221-22 (1972). The Restatement also expressly maintains that Congress by subsequent enactment may supersede a rule of international

law or international agreement. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES

115(1)(b) (1987). The reporters notes also agree that [t]here is authority for the view that the President has the power, when acting within his constitutional authority, to disregard a rule of international law or an agreement of the

United States. Id. 15(1)(b) note 3. While the Restatement does not explicitly address whether the President or his delegate may violate international law when acting pursuant to statutory rather than constitutional authority, this

proposition appears to be a direct corollary to the Restatements conclusion with respect to legislative authority. If Congress has the authority to enact a statute contrary to international law, it may also enact a statute that delegates to

the Executive authority that can be exercised contrary to international law. Thus, we believe that the Restatement

substantially agrees with our view that the political branches, under the authority of either constitutional or statutory

domestic law, legally may act in a manner that is inconsistent with international law.

24

Customary international law is not static: it evolves through a dynamic process of state

custom and practice. States ultimately adhere to a norm of practice because they determine

that upholding the norm best serves their long-run interests and because violation of the

norm may subject the nation to public obloquy or expose it to retaliatory violations. States necessarily must have the authority to contravene international norms, however, for

it is the process of changing state practice that allows customary international law to

evolve.

If the United States is to participate in the evolution of international law, the Executive

must have the power to act inconsistently with international law where necessary. It is principally the President, sole organ of the United States in its international relations, who is responsible for the behavior of the United States in regard to international law, and who

participates on her behalf in the indefinable process by which customary international law

is made, unmade, remade. Louis Henkin, Foreign Affairs and the Constitution 188 (1972). Thus, the power in the Executive to override international law is a necessary

attribute of sovereignty and an integral part of the Presidents foreign affairs power. Indeed, the absence of such authority in the Executive would profoundly and uniquely

disable the United Statesrendering the nation a passive bystander, bound to follow practices dictated by other nations, yet powerless to play a role in shaping those practices.**

Thus, we think it clear that, contrary to the 1980 Opinions assertions, [b]oth the Congress and the President, acting within their respective spheres, retain the authority to

override any such limitations i