Slip opinion

NOTE: Where it is feasible, a syllabus
(headnote) will be released, as is being
done in connection with this case, at
the time the opinion is issued.  The
syllabus constitutes no part of the
opinion of the Court but has been pre-
pared by the Reporter of Decisions for
the convenience of the reader.  See
United States v. Detroit Lumber Co., 200
U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

              Syllabus

  UNITED STATES v. ALVAREZ-MACHAIN
 certiorari to the united states court of ap-
 peals for the ninth circuit
No. 91-712.   Argued April 1, 1992 Decided June
              15, 1992

Respondent, a citizen and resident of Mexico, was
forcibly kidnapped from his home and flown by
private plane to Texas, where he was arrested
for his participation in the kidnapping and mur-
der of a Drug Enforcement Administration (DEA)
agent and the agent's pilot.  After concluding
that DEA agents were responsible for the ab-
duction, the District Court dismissed the in-
dictment on the ground that it violated the
Extradition Treaty between the United States
and Mexico (Extradition Treaty or Treaty), and
ordered respondent's repatriation.  The Court
of Appeals affirmed.  Based on one of its prior
decisions, the court found that, since the Unit-
ed States had authorized the abduction and
since the Mexican government had protested the
Treaty violation, jurisdiction was improper.
Held:The fact of respondent's forcible abduction
does not prohibit his trial in a United States
court for violations of this country's criminal
laws.  Pp.3-15.
(a)A defendant may not be prosecuted in vio-
lation of the terms of an extradition treaty.
United States v. Rauscher, 119 U.S. 407.  Howev-
er, when a treaty has not been invoked, a court
may properly exercise jurisdiction even though
the defendant's presence is procured by means
of a forcible abduction.  Ker v. Illinois, 119 U.S.
436.  Thus, if the Extradition Treaty does not
prohibit respondent's abduction, the rule of Ker
applies and jurisdiction was proper.  Pp.3-7.
(b)Neither the Treaty's language nor the his-
tory of negotiations and practice under it sup-
ports the proposition that it prohibits abduc-
tions outside of its terms.  The Treaty says
nothing about either country refraining from
forcibly abducting people from the other's ter-
ritory or the consequences if an abduction
occurs.  In addition, although the Mexican gov-
ernment was made aware of the Ker doctrine as
early as 1906, and language to curtail Ker was
drafted as early as 1935, the Treaty's current
version contains no such clause.  Pp.7-11.
(c)General principles of international law
provide no basis for interpreting the Treaty to
include an implied term prohibiting international
abductions.  It would go beyond established
precedent and practice to draw such an infer-
ence from the Treaty based on respondent's
argument that abductions are so clearly pro-
hibited in international law that there was no
reason to include the prohibition in the Treaty
itself.  It was the practice of nations with
regard to extradition treaties that formed the
basis for this Court's decision in Rauscher,
supra, to imply a term in the extradition treaty
between the United States and England.  Respon-
dent's argument, however, would require a much
larger inferential leap with only the most gen-
eral of international law principles to support
it.  While respondent may be correct that his
abduction was ``shocking'' and in violation of
general international law principles, the deci-
sion whether he should be returned to Mexico,
as a matter outside the Treaty, is a matter for
the Executive Branch.  Pp.11-15.
946 F.2d 1466, reversed and remanded.

Rehnquist, C. J., delivered the opinion of the
Court, in which White, Scalia, Kennedy, Souter,
and Thomas, JJ., joined.  Stevens, J., filed a dis-
senting opinion, in which Blackmun and O'Connor,
JJ., joined.

Opinion
NOTICE: This opinion is subject to formal
revision before publication in the pre-
liminary print of the United States
Reports.  Readers are requested to
notify the Reporter of Decisions, Su-
preme Court of the United States, Wash-
ington, D.C. 20543, of any typographical
or other formal errors, in order that
corrections may be made before the
preliminary print goes to press.
    SUPREME COURT OF THE UNITED STATES--------
             No. 91-712
              --------
UNITED STATES, PETITIONER v. HUMBERTO ALVAREZ MACHAIN
  on writ of certiorari to the united states
    court of appeals for the ninth circuit
                [June 15, 1992]

  The Chief Justice  delivered the opinion of the
Court.
  The issue in this case is whether a criminal
defendant, abducted to the United States from a
nation with which it has an extradition treaty,
thereby acquires a defense to the jurisdiction of
this country's courts.  We hold that he does not,
and that he may be tried in federal district court
for violations of the criminal law of the United
States.
                    Respondent, Humberto Alvarez-
Machain, is a citizen and resident of Mexico.  He
was indicted for participating in the kidnap and
murder of United States Drug Enforcement Admin-
istration (DEA) special agent Enrique Camarena-
Salazar and a Mexican pilot working with Camarena,
Alfredo Zavala-Avelar.  The DEA believes that
respondent, a medical doctor, participated in the
murder by prolonging agent Camarena's life so
that others could further torture and interro-
gate him.  On April 2, 1990, respondent wasforcibly
 kidnapped from his medical office in
Guadalajara, Mexico, to be flown by private plane
to El Paso, Texas, where he was arrested by DEA
officials.  The District Court concluded that DEA
agents were responsible for respondent's abduc-
tion, although they were not personally involved
in it.  United States v. Caro-Quintero, 745 F. Supp.
599, 602-604, 609 (CD Cal. 1990).
  Respondent moved to dismiss the indictment,
claiming that his abduction constituted outra-
geous governmental conduct, and that the District
Court lacked jurisdiction to try him because he
was abducted in violation of the extradition
treaty between the United States and Mexico.
Extradition Treaty, May 4, 1978, [1979] United
States-United Mexican States, 31 U. S. T. 5059, T.
I. A. S. No. 9656 (Extradition Treaty or Treaty).
The District Court rejected the outrageous
governmental conduct claim, but held that it
lacked jurisdiction to try respondent because his
abduction violated the Extradition Treaty.  The
district court discharged respondent and ordered
that he be repatriated to Mexico.  Caro-Quintero,
supra, at 614.
  The Court of Appeals affirmed the dismissal of
the indictment and the repatriation of respon-
dent, relying on its decision in United States v.
Verdugo-Urquidez, 939 F. 2d 1341 (CA9 1991), cert.
pending, No. 91-670.  946 F. 2d 1466 (1991).  In
Verdugo, the Court of Appeals held that the
forcible abduction of a Mexican national with the
authorization or participation of the United
States violated the Extradition Treaty between
the United States and Mexico.  Although the
Treaty does not expressly prohibit such abduc-
tions, the Court of Appeals held that the  pur-
pose of the Treaty was violated by a forcible
abduction, 939 F. 2d, at 1350, which, along with a
formal protest by the offended nation, would give
a defendant the right to invoke the Treaty viola-
tion to defeat jurisdiction of the district court
to try him.  The Court of Appeals further held
that the proper remedy for such a violation would
be dismissal of the indictment and repatriation of
the defendant to Mexico.
     In the instant case, the Court of Appeals
affirmed the district court's finding that the
United States had authorized the abduction of
respondent, and that letters from the Mexican
government to the United States government
served as an official protest of the Treaty
violation.  Therefore, the Court of Appeals or-
dered that the indictment against respondent be
dismissed and that respondent be repatriated to
Mexico.  946 F. 2d, at 1467.  We granted certiorari,
502 U. S. "" (1992), and now reverse.
  Although we have never before addressed the
precise issue raised in the present case, we have
previously considered proceedings in claimed
violation of an extradition treaty, and proceed-
ings against a defendant brought before a court
by means of a forcible abduction.  We addressed
the former issue in United States v. Rauscher, 119
U. S. 407 (1886); more precisely, the issue of
whether the Webster-Ashburton Treaty of 1842, 8
Stat. 576, which governed extraditions between
England and the United States, prohibited the
prosecution of defendant Rauscher for a crime
other than the crime for which he had been extra-
dited.  Whether this prohibition, known as the
doctrine of specialty, was an intended part of the
treaty had been disputed between the two nations
for some time.  Rauscher, 119 U.S., at 411.  Justice
Miller delivered the opinion of the Court, which
carefully examined the terms and history of the
treaty; the practice of nations in regards to
extradition treaties; the case law from the
states; and the writings of commentators, and
reached the following conclusion:
 [A] person who has been brought within the
jurisdiction of the court by virtue of proceed-
ings under an extradition treaty, can only be
tried for one of the offences described in
that treaty, and for the offence with which he
is charged in the proceedings for his extradi-
tion, until a reasonable time and opportunity
have been given him, after his release or trial
upon such charge, to return to the country
from whose asylum he had been forcibly taken
under those proceedings.  Id., at 430 (empha-
sis added).
In addition, Justice Miller's opinion noted that
any doubt as to this interpretation was put to
rest by two federal statutes which imposed the
doctrine of specialty upon extradition treaties
to which the United States was a party.  Id., at
423.  Unlike the case before us today, the defen-
dant in Rauscher had been brought to the United
States by way of an extradition treaty; there was
no issue of a forcible abduction.
  In Ker v. Illinois, 119 U. S. 436 (1886), also writ-
ten by Justice Miller and decided the same day as
Rauscher, we addressed the issue of a defendant
brought before the court by way of a forcible
abduction.  Frederick Ker had been tried and
convicted in an Illinois court for larceny; his
presence before the court was procured by means
of forcible abduction from Peru.  A messenger was
sent to Lima with the proper warrant to demand
Ker by virtue of the extradition treaty between
Peru and the United States.  The messenger,
however, disdained reliance on the treaty pro-
cesses, and instead forcibly kidnapped Ker and
brought him to the United States.  We distin-
guished Ker's case from Rauscher, on the basis
that Ker was not brought into the United States
by virtue of the extradition treaty between the
United States and Peru, and rejected Ker's argu-
ment that he had a right under the extradition
treaty to be returned to this country only in
accordance with its terms.  We rejected Ker's
due process argument more broadly, holding in line
with  the highest authorities that  such forcible
abduction is no sufficient reason why the party
should not answer when brought within the juris-
diction of the court which has the right to try him
for such an offence, and presents no valid objec-
tion to his trial in such court.  Ker, supra, at
444.
  In Frisbie v. Collins, 342 U. S. 519, rehearing
denied, 343 U. S. 937 (1952), we applied the rule in
Ker to a case in which the defendant had been
kidnapped in Chicago by Michigan officers and
brought to trial in Michigan.  We upheld the con-
viction over objections based on the due process
clause and the Federal Kidnapping Act and stated:
      This Court has never departed from the
rule announced in [Ker] that the power of a
court to try a person for crime is not impaired
by the fact that he had been brought within
the court's jurisdiction by reason of a `forc-
ible abduction.'  No persuasive reasons are
now presented to justify overruling this line
of cases.  They rest on the sound basis that
due process of law is satisfied when one
present in court is convicted of crime after
having been fairly apprized of the charges
against him and after a fair trial in accor-
dance with constitutional procedural safe-
guards.  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.  Frisbie, supra, at 522 (citation and
footnote omitted).
    The only differences between Ker and the
present case are that Ker was decided on the
premise that there was no governmental involve-
ment in the abduction, 119 U. S., at 443; and Peru,
from which Ker was abducted, did not object to his
prosecution.  Respondent finds these differenc-
es to be dispositive, as did the Court of Appeals
in Verdugo, 939 F. 2d, at 1346, contending that
they show that respondent's prosecution, like the
prosecution of Rauscher, violates the implied
terms of a valid extradition treaty.  The Govern-
ment, on the other hand, argues that Rauscher
stands as an  exception to the rule in Ker only
when an extradition treaty is invoked, and the
terms of the treaty provide that its breach will
limit the jurisdiction of a court.  Brief for United
States 17.  Therefore, our first inquiry must be
whether the abduction of respondent from Mexico
violated the extradition treaty between the
United States and Mexico.  If we conclude that the
Treaty does not prohibit respondent's abduction,
the rule in Ker applies, and the court need not
inquire as to how respondent came before it.  In
construing a treaty, as in construing a statute,
we first look to its terms to determine its mean-
ing.  Air France v. Saks, 470 U. S. 392, 397 (1985);
Valentine v. United States ex. rel. Neidecker, 299
U. S. 5, 11 (1936).  The Treaty says nothing about
the obligations of the United States and Mexico to
refrain from forcible abductions of people from
the territory of the other nation, or the conse-
quences under the Treaty if such an abduction
occurs.  Respondent submits that Article 22(1) of
the Treaty which states that it  shall apply to
offenses specified in Article 2 [including murder]
committed before and after this Treaty enters
into force, 31 U. S. T., at 5073-5074, evidences an
intent to make application of the Treaty mandato-
ry for those offenses.  However, the more natural
conclusion is that Article 22 was included to
ensure that the Treaty was applied to extradi-
tions requested after the Treaty went into force,
regardless of when the crime of extradition
occurred.
  More critical to respondent's argument is
Article 9 of the Treaty which provides:
``1.  Neither Contracting Party shall be bound
to deliver up its own nationals, but the execu-
tive authority of the requested Party shall,
if not prevented by the laws of that Party,
have the power to deliver them up if, in its
discretion, it be deemed proper to do so.
``2.  If extradition is not granted pursuant to
paragraph 1 of this Article, the requested
Party shall submit the case to its competent
authorities for the purpose of prosecution,
provided that Party has jurisdiction over the
offense.''  Id., at 5065.
According to respondent, Article 9 embodies the
terms of the bargain which the United States
struck:  if the United States wishes to prosecute
a Mexican national, it may request that individua-
l's extradition.  Upon a request from the United
States, Mexico may either extradite the individ-
ual, or submit the case to the proper authorities
for prosecution in Mexico.  In this way, respondent
reasons, each nation preserved its right to
choose whether its nationals would be tried in its
own courts or by the courts of the other nation.
This preservation of rights would be frustrated
if either nation were free to abduct nationals of
the other nation for the purposes of prosecution.
More broadly, respondent reasons, as did the
Court of Appeals, that all the processes and
restrictions on the obligation to extradite
established by the Treaty would make no sense if
either nation were free to resort to forcible
kidnapping to gain the presence of an individual
for prosecution in a manner not contemplated by
the Treaty.  Verdugo, supra, at 1350.
  We do not read the Treaty in such a fashion.
Article 9 does not purport to specify the only way
in which one country may gain custody of a nation-
al of the other country for the purposes of
prosecution.  In the absence of an extradition
treaty, nations are under no obligation to sur-
render those in their country to foreign authori-
ties for prosecution.  Rauscher, 119 U. S., at
411-412; Factor v. Laubenheimer, 290 U. S. 276, 287
(1933); cf. Valentine v. United States ex. rel. Neide-
cker, supra, at 8-9 (United States may not extra-
dite a citizen in the absence of a statute or
treaty obligation).  Extradition treaties exist so
as to impose mutual obligations to surrender
individuals in certain defined sets of circum-
stances, following established procedures.  See 1
J. Moore, A Treatise on Extradition and Interstate
Rendition,  72 (1891).  The Treaty thus provides
a mechanism which would not otherwise exist,
requiring, under certain circumstances, the
United States and Mexico to extradite individuals
to the other country, and establishing the proce-
dures to be followed when the Treaty is invoked.
  The history of negotiation and practice under
the Treaty also fails to show that abductions
outside of the Treaty constitute a violation of
the Treaty.  As the Solicitor General notes, the
Mexican government was made aware, as early as
1906, of the Ker doctrine, and the United States'
position that it applied to forcible abductions
made outside of the terms of the United States-
Mexico extradition treaty.  Nonetheless, the
current version of the Treaty, signed in 1978,
does not attempt to establish a rule that would in
any way curtail the effect of Ker.  Moreover,
although language which would grant individuals
exactly the right sought by respondent had been
considered and drafted as early as 1935 by a
prominent group of legal scholars sponsored by
the faculty of Harvard Law School, no such clause
appears in the current treaty.
     Thus, the language of the Treaty, in the
context of its history, does not support the
proposition that the Treaty prohibits abductions
outside of its terms.  The remaining question,
therefore, is whether the Treaty should be inter-
preted so as to include an implied term prohibiting
prosecution where the defendant's presence is
obtained by means other than those established
by the Treaty.  See Valentine, 299 U. S., at 17
( Strictly the question is not whether there had
been a uniform practical construction denying the
power, but whether the power had been so clearly
recognized that the grant should be implied).
  Respondent contends that the Treaty must be
interpreted against the backdrop of customary
international law, and that international abduc-
tions are  so clearly prohibited in international
law that there was no reason to include such a
clause in the Treaty itself.  Brief for Respondent
11.  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.
Id., at 17.  Respondent does not argue that these
sources of international law provide an indepen-
dent 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 Court of Appeals deemed it essential, in
order for the individual defendant to assert a
right under the Treaty, that the affected foreign
government had registered a protest.  Verdugo,
939 F. 2d, at 1357 ( in the kidnapping case there
must be a formal protest from the offended gov-
ernment after the kidnapping).  Respondent
agrees that the right exercised by the individual
is derivative of the nation's right under the
Treaty, since nations are authorized, notwith-
standing the terms of an extradition treaty, to
voluntarily render an individual to the other
country on terms completely outside of those
provided in the Treaty.  The formal protest,
therefore, ensures that the  offended nation
actually objects to the abduction and has not in
some way voluntarily rendered the individual for
prosecution.  Thus the Extradition Treaty only
prohibits gaining the defendant's presence by
means other than those set forth in the Treaty
when the nation from which the defendant was
abducted objects.
     This argument seems to us inconsistent with
the remainder of respondent's argument.  The
Extradition Treaty has the force of law, and if, as
respondent asserts, it is self-executing, it would
appear that a court must enforce it on behalf of
an individual regardless of the offensiveness of
the practice of one nation to the other nation.  In
Rauscher, the Court noted that Great Britain had
taken the position in other cases that the Web-
ster-Ashburton Treaty included the doctrine of
specialty, but no importance was attached to
whether or not Great Britain had protested the
prosecution of Rauscher for the crime of cruel
and unusual punishment as opposed to murder.
  More fundamentally, the difficulty with the
support respondent garners from international
law is that none of it relates to the practice of
nations in relation to extradition treaties.  In
Rauscher, we implied a term in the Webster-Ashbu-
rton Treaty because of the practice of nations
with regard to extradition treaties.  In the
instant case, respondent would imply terms in the
extradition treaty from the practice of nations
with regards to international law more general-
ly.  Respondent would have us find that the
Treaty acts as a prohibition against a violation
of the general principle of international law that
one government may not  exercise its police power
in the territory of another state.  Brief for
Respondent 16.  There are many actions which could
be taken by a nation that would violate this
principle, including waging war, but it cannot
seriously be contended an invasion of the United
States by Mexico would violate the terms of the
extradition treaty between the two nations.
       In sum, to infer from this Treaty and its terms
that it prohibits all means of gaining the pres-
ence of an individual outside of its terms goes
beyond established precedent and practice.  In
Rauscher, the implication of a doctrine of special-
ty into the terms of the Webster-Ashburton
treaty which, by its terms, required the presen-
tation of evidence establishing probable cause of
the crime of extradition before extradition was
required, was a small step to take.  By contrast,
to imply from the terms of this Treaty that it
prohibits obtaining the presence of an individual
by means outside of the procedures the Treaty
establishes requires a much larger inferential
leap, with only the most general of international
law principles to support it.  The general princi-
ples cited by respondent simply fail to persuade
us that we should imply in the United States-
Mexico Extradition Treaty a term prohibiting
international abductions.
  Respondent and his amici may be correct that
respondent's abduction was  shocking, Tr. of Oral
Arg. 40, and that it may be in violation of general
international law principles.  Mexico has protest-
ed the abduction of respondent through diplomatic
notes, App. 33-38, and the decision of whether
respondent should be returned to Mexico, as a
matter outside of the Treaty, is a matter for the
Executive Branch.  We conclude, however, that
respondent's abduction was not in violation of the
Extradition Treaty between the United States and
Mexico, and therefore the rule of Ker v. Illinois is
fully applicable to this case.  The fact of respon-
dent's forcible abduction does not therefore
prohibit his trial in a court in the United States
for violations of the criminal laws of the United
States.
  The judgment of the Court of Appeals is there-
fore reversed, and the case is remanded for
further proceedings consistent with this opinion.
                                   So ordered.


Dissent
      SUPREME COURT OF THE UNITED STATES--------
             No. 91-712
              --------
 
UNITED STATES, PETITIONER v. HUMBERTO ALVAREZ MACHAIN
  on writ of certiorari to the united states
    court of appeals for the ninth circuit
                [June 15, 1992]

  Justice Stevens, with whom Justice Blackmun
and Justice O'Connor join, dissenting.
  The Court correctly observes that this case
raises a question of first impression.  See ante,
at 3.  The case is unique for several reasons.  It
does not involve an ordinary abduction by a
private kidnaper, or bounty hunter, as in Ker v.
Illinois, 119 U. S. 436 (1886); nor does it involve
the apprehension of an American fugitive who
committed a crime in one State and sought asylum
in another, as in Frisbie v. Collins, 342 U. S. 519
(1952).  Rather, it involves this country's abduc-
tion of another country's citizen; it also involves
a violation of the territorial integrity of that
other country, with which this country has signed
an extradition treaty.
  A Mexican citizen was kidnaped in Mexico and
charged with a crime committed in Mexico; his
offense allegedly violated both Mexican and
American law.  Mexico has formally demanded on at
least two separate occasions that he be re-
turned to Mexico and has represented that he will
be prosecuted and punished for his alleged of-
fense.  It is clear that Mexico's demand must
be honored if this official abduction violated the
1978 Extradition Treaty between the United
States and Mexico.  In my opinion, a fair reading of
the treaty in light of our decision in United
States v. Rauscher, 119 U. S. 407 (1886), and appli-
cable principles of international law, leads
inexorably to the conclusion that the District
Court, United States v. Caro-Quintero, 745 F. Supp.
599 (CD Cal. 1990), and the Court of Appeals for
the Ninth Circuit, 946 F. 2d 1466 (1991) (per curiam),
correctly construed that instrument.
                       I
  The Extradition Treaty with Mexico is a com-
prehensive document containing 23 articles and an
appendix listing the extraditable offenses cov-
ered by the agreement.  The parties announced
their purpose in the preamble:  The two Govern-
ments desire  to cooperate more closely in the
fight against crime and, to this end, to mutually
render better assistance in matters of extradi-
tion.  From the preamble, through the de-
scription of the parties' obligations with respect
to offenses committed within as well as beyond
the territory of a requesting party, the delin-
eation of the procedures and evidentiary re-
quirements for extradition, the special
provisions for political offenses and capital
punishment, and other details, the Treaty
appears to have been designed to cover the entire
subject of extradition.  Thus, Article 22, entitled
 Scope of Application states that the  Treaty
shall apply to offenses specified in Article 2
committed before and after this Treaty enters
into force, and Article 2 directs that  [e]xtradi-
tion shall take place, subject to this Treaty, for
willful acts which fall within any of [the extradit-
able offenses listed in] the clauses of the Appen-
dix.  Moreover, as noted by the Court, ante,
at 8, Article 9 expressly provides that neither
Contracting Party is bound to deliver up its own
nationals, although it may do so in its discretion,
but if it does not do so, it  shall submit the case
to its competent authorities for purposes of
prosecution.
  Petitioner's claim that the Treaty is not exclu-
sive, but permits forcible governmental kidnaping,
would transform these, and other, provisions into
little more than verbiage.  For example, provi-
sions requiring  sufficient evidence to grant
extradition (Art. 3), withholding extradition for
political or military offenses (Art. 5), withholding
extradition when the person sought has already
been tried (Art. 6), withholding extradition when
the statute of limitations for the crime has
lapsed (Art. 7), and granting the requested State
discretion to refuse to extradite an individual
who would face the death penalty in the request-
ing country (Art. 8), would serve little purpose if
the requesting country could simply kidnap the
person.  As the Court of Appeals for the Ninth
Circuit recognized in a related case,  [e]ach of
these provisions would be utterly frustrated if a
kidnapping were held to be a permissible course of
governmental conduct.  United States v. Verdugo-
Urquidez, 939 F. 2d 1341, 1349 (1991).  In addition,
all of these provisions  only make sense if they
are understood as requiring each treaty signato-
ry to comply with those procedures whenever it
wishes to obtain jurisdiction over an individual
who is located in another treaty nation.  Id., at
1351.
  It is true, as the Court notes, that there is no
express promise by either party to refrain from
forcible abductions in the territory of the other
Nation.  See ante, at 9.  Relying on that omis-
sion, the Court, in effect, concludes that the
Treaty merely creates an optional method of
obtaining jurisdiction over alleged offenders, and
that the parties silently reserved the right to
resort to self help whenever they deem force more
expeditious than legal process.  If the United
States, for example, thought it more expedient to
torture or simply to execute a person rather than
to attempt extradition, these options would be
equally available because they, too, were not
explicitly prohibited by the Treaty.  That,
however, is a highly improbable interpretation of
a consensual agreement, which on its face
appears to have been intended to set forth
comprehensive and exclusive rules concerning the
subject of extradition.  In my opinion,  the
manifest scope and object of the treaty itself,
Rauscher, 119 U. S., at 422, plainly imply a mutual
undertaking to respect the territorial integrity
of the other contracting party.  That opinion is
confirmed by a consideration of the  legal con-
text in which the Treaty was negotiated.
Cannon v. University of Chicago, 441 U. S. 677, 699
(1979).
                      II
  In Rauscher, the Court construed an extradition
treaty that was far less comprehensive than the
1978 Treaty with Mexico.  The 1842 Treaty with
Great Britain determined the boundary between
the United States and Canada, provided for the
suppression of the African slave trade, and also
contained one paragraph authorizing the extradi-
tion of fugitives  in certain cases.  8 Stat. 576.
In Article X, each Nation agreed to  deliver up to
justice all persons properly charged with any
one of seven specific crimes, including murder.
119 U. S., at 421.  After Rauscher had been
extradited for murder, he was charged with the
lesser offense of inflicting cruel and unusual
punishment on a member of the crew of a vessel on
the high seas.  Although the treaty did not pur-
port to place any limit on the jurisdiction of the
demanding State after acquiring custody of the
fugitive, this Court held that he could not be
tried for any offense other than murder.
Thus, the treaty constituted the exclusive means
by which the United States could obtain jurisdic-
tion over a defendant within the territorial
jurisdiction of Great Britain.
  The Court noted that the Treaty included sever-
al specific provisions, such as the crimes for
which one could be extradited, the process by
which the extradition was to be carried out, and
even the evidence that was to be produced, and
concluded that  the fair purpose of the treaty is,
that the person shall be delivered up to be tried
for that offence and for no other.  Id., at 423.
The Court reasoned that it did not make sense for
the Treaty to provide such specifics only to have
the person  pas[s] into the hands of the country
which charges him with the offence, free from all
the positive requirements and just implications of
the treaty under which the transfer of his person
takes place.  Id., at 421.  To interpret the Treaty
in a contrary way would mean that a country could
request extradition of a person for one of the
seven crimes covered by the Treaty, and then try
the person for another crime, such as a political
crime, which was clearly not covered by the
Treaty; this result, the Court concluded, was
clearly contrary to the intent of the parties and
the purpose of the Treaty.
  Rejecting an argument that the sole purpose of
Article X was to provide a procedure for the
transfer of an individual from the jurisdiction of
one sovereign to another, the Court stated:
 No such view of solemn public treaties be-
tween the great nations of the earth can be
sustained by a tribunal called upon to give
judicial construction to them.
    The opposite view has been attempted to be
maintained in this country upon the ground
that there is no express limitation in the
treaty of the right of the country in which the
offence was committed to try the person for
the crime alone for which he was extradited,
and that once being within the jurisdiction of
that country, no matter by what contrivance
or fraud or by what pretence of establishing
a charge provided for by the extradition
treaty he may have been brought within the
jurisdiction, he is, when here, liable to be
tried for any offence against the laws as
though arrested here originally.  This propo-
sition of the absence of express restriction
in the treaty of the right to try him for other
offences than that for which he was extradit-
ed, is met by the manifest scope and object of
the treaty itself.  Id., at 422.

  Thus, the Extradition Treaty, as understood in
the context of cases that have addressed similar
issues, suffices to protect the defendant from
prosecution despite the absence of any express
language in the Treaty itself purporting to limit
this Nation's power to prosecute a defendant over
whom it had lawfully acquired jurisdiction.
  Although the Court's conclusion in Rauscher was
supported by  a number of judicial precedents, the
holdings in these cases were not nearly as uni-
form as the consensus of international
opinion that condemns one Nation's violation of
the territorial integrity of a friendly neigh-
bor.  It is shocking that a party to an extradi-
tion treaty might believe that it has secretly
reserved the right to make seizures of citizens in
the other party's territory.  Justice Story
found it shocking enough that the United States
would attempt to justify an American seizure of a
foreign vessel in a Spanish port:
 But, even supposing, for a moment, that our
laws had required an entry of the Apollon, in
her transit, does it follow, that the power to
arrest her was meant to be given, after she
had passed into the exclusive territory of a
foreign nation?  We think not.  It would be mon-
strous to suppose that our revenue officers
were authorized to enter into foreign ports
and territories, for the purpose of seizing
vessels which had offended against our laws.
It cannot be presumed that Congress would
voluntarily justify such a clear violation of
the laws of nations.  The Apollon, 9 Wheat.
362, 370-371 (1824) (emphasis added).
    The law of Nations, as understood by Justice
Story in 1824, has not changed.  Thus, a leading
treatise explains:
 A State must not perform acts of sovereignty
in the territory of another State.
        .      .      .       .      .
 It is . . . a breach of International Law for a
State to send its agents to the territory of
another State to apprehend persons accused
of having committed a crime.  Apart from other
satisfaction, the first duty of the offending
State is to hand over the person in question
to the State in whose territory he was appre-
hended.  1 Oppenheim's International Law 295,
and n. 1 (H. Lauterpacht 8th ed. 1955).

Commenting on the precise issue raised by this
case, the chief reporter for the American Law
Institute's Restatement of Foreign Relations used
language reminiscent of Justice Story's charac-
terization of an official seizure in a foreign
jurisdiction as  monstrous:
    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 (estab-
lished by a comprehensive network of treaties
involving virtually all states).

  In the Rauscher case, the legal background that
supported the decision to imply a covenant not to
prosecute for an offense different from that for
which extradition had been granted was far less
clear than the rule against invading the territo-
rial integrity of a treaty partner that supports
Mexico's position in this case.  If Rauscher was
correctly decided"-and I am convinced that it
was"its rationale clearly dictates a comparable
result in this case.
                    III
  A critical flaw pervades the Court's entire
opinion.  It fails to differentiate between the
conduct of private citizens, which does not vio-
late any treaty obligation, and conduct expressly
authorized by the Executive Branch of the Gov-
ernment, which unquestionably constitutes a
flagrant violation of international law, and
in my opinion, also constitutes a breach of our
treaty obligations.  Thus, at the outset of its
opinion, the Court states the issue as  whether
a criminal defendant, abducted to the United
States from a nation with which it has an extradi-
tion treaty, thereby acquires a defense to the
jurisdiction of this country's courts.  Ante, at 1.
That, of course, is the question decided in Ker v.
Illinois, 119 U. S. 436 (1886); it is not, however, the
question presented for decision today.
  The importance of the distinction between a
court's exercise of jurisdiction over either a
person or property that has been wrongfully
seized by a private citizen, or even by a state law
enforcement agent, on the one hand, and the
attempted exercise of jurisdiction predicated on
a seizure by federal officers acting beyond the
authority conferred by treaty, on the other hand,
is explained by Justice Brandeis in his opinion for
the Court in Cook v. United States, 288 U. S. 102
(1933).  That case involved a construction of a
prohibition era treaty with Great Britain that
authorized American agents to board certain
British vessels to ascertain whether they were
engaged in importing alcoholic beverages.  A
British vessel was boarded 11 1/2 miles off the
coast of Massachusetts, found to be carrying
unmanifested alcoholic beverages, and taken into
port.  The Collector of Customs assessed a penal-
ty which he attempted to collect by means of
libels against both the cargo and the seized
vessel.
  The Court held that the seizure was not autho-
rized by the treaty because it occurred more than
10 miles off shore.  The Government argued
that the illegality of the seizure was immaterial
because, as in Ker, the Court's jurisdiction was
supported by possession even if the seizure was
wrongful.  Justice Brandeis acknowledged that the
argument would succeed if the seizure had been
made by a private party without authority to act
for the Government, but that a different rule
prevails when the Government itself lacks the
power to seize.  Relying on Rauscher, and distin-
guishing Ker, he explained:
    Fourth.  As the Mazel Tov was seized with-
out warrant of law, the libels were properly
dismissed.  The Government contends that the
alleged illegality of the seizure is immaterial.
It argues that the facts proved show a viola-
tion of our law for which the penalty of for-
feiture is prescribed; that the United States
may, by filing a libel for forfeiture, ratify
what otherwise would have been an illegal
seizure; that the seized vessel having been
brought into the Port of Providence, the
federal court for Rhode Island acquired juris-
diction; and that, moreover, the claimant by
answering to the merits waived any right to
object to enforcement of the penalties.  The
argument rests upon misconceptions.
   It is true that where the United States,
having possession of property, files a libel to
enforce a forfeiture resulting from a viola-
tion of its laws, the fact that the possession
was acquired by a wrongful act is immaterial.
Dodge v. United States, 272 U. S. 530, 532
[(1926)].  Compare Ker v. Illinois, 119 U. S. 436,
444.  The doctrine rests primarily upon the
common-law rules that any person may, at his
peril, seize property which has become for-
feited to, or forfeitable by, the Government;
and that proceedings by the Government to
enforce a forfeiture ratify a seizure made by
one without authority, since ratification is
equivalent to antecedent delegation of au-
thority to seize.  Gelston v. Hoyt, 3 Wheat. 246,
310 [(1818)]; Taylor v. United States, 3 How. 197,
205-206 [(1845)].  The doctrine is not applica-
ble here.  The objection to the seizure is not
that it was wrongful merely because made by
one upon whom the Government had not con-
ferred authority to seize at the place where
the seizure was made.  The objection is that
the Government itself lacked power to seize,
since by the Treaty it had imposed a territo-
rial limitation upon its own authority.  The
Treaty fixes the conditions under which a
`vessel may be seized and taken into a port of
the United States, its territories or posses-
sions for adjudication in accordance with' the
applicable laws.  Thereby, Great Britain
agreed that adjudication may follow a rightful
seizure.  Our Government, lacking power to
seize, lacked power, because of the Treaty, to
subject the vessel to our laws.  To hold that
adjudication may follow a wrongful seizure
would go far to nullify the purpose and effect
of the Treaty.  Compare United States v. Raus-
cher, 119 U. S. 407.  Cook v. United States, 288
U. S., at 120-122.

  The same reasoning was employed by Justice
Miller to explain why the holding in Rauscher did
not apply to the Ker case.  The arresting officer
in Ker did not pretend to be acting in any official
capacity when he kidnaped Ker.  As Justice Miller
noted,  the facts show that it was a clear case of
kidnapping within the dominions of Peru, without
any pretence of authority under the treaty or
from the government of the United States.  Ker v.
Illinois, 119 U. S., at 443 (emphasis added).
The exact opposite is true in this case, as it was
in Cook.
  The Court's failure to differentiate between
private abductions and official invasions of
another sovereign's territory also accounts for
its misplaced reliance on the 1935 proposal made
by the Advisory Committee on Research in Interna-
tional Law.  See ante, at 10, and n. 13.  As the text
of that proposal plainly states, it would have
rejected the rule of the Ker case.  The fail-
ure to adopt that recommendation does not speak
to the issue the Court decides today.  The Court's
admittedly  shocking disdain for customary and
conventional international law principles, see
ante, at 14, is thus entirely unsupported by case
law and commentary.
                      IV
  As the Court observes at the outset of its
opinion, there is reason to believe that respon-
dent participated in an especially brutal murder
of an American law enforcement agent.  That fact,
if true, may explain the Executive's intense
interest in punishing respondent in our
courts.  Such an explanation, however, pro-
vides no justification for disregarding the Rule
of Law that this Court has a duty to uphold.
That the Executive may wish to reinterpret
the Treaty to allow for an action that the Treaty
in no way authorizes should not influence this
Court's interpretation.  Indeed, the desire for
revenge exerts  a kind of hydraulic pressure . . .
before which even well settled principles of law
will bend, Northern Securities Co. v. United States,
193 U. S. 197, 401 (1904) (Holmes, J., dissenting), but
it is precisely at such moments that we should
remember and be guided by our duty  to render
judgment evenly and dispassionately according to
law, as each is given understanding to ascertain
and apply it.  United States v. Mine Workers, 330
U. S. 258, 342 (1947) (Rutledge, J., dissenting).  The
way that we perform that duty in a case of this
kind sets an example that other tribunals in other
countries are sure to emulate.
  The significance of this Court's precedents is
illustrated by a recent decision of the Court of
Appeal of the Republic of South Africa.  Based
largely on its understanding of the import of this
Court's cases"including our decision in Ker v.
Illinois"that court held that the prosecution of
a defendant kidnaped by agents of South Africa in
another country must be dismissed.  S v. Ebrahim,
S. Afr. L. Rep. (Apr.-June 1991).  The Court of
Appeal of South Africa"indeed, I suspect most
courts throughout the civilized world"will be
deeply disturbed by the  monstrous decision the
Court announces today.  For every Nation that
has an interest in preserving the Rule of Law is
affected, directly or indirectly, by a decision of
this character.  As Thomas Paine warned, an
 avidity to punish is always dangerous to liberty
because it leads a Nation  to stretch, to misin-
terpret, and to misapply even the best of
laws.  To counter that tendency, he reminds
us:
 He that would make his own liberty secure
must guard even his enemy from oppression;
for if he violates this duty he establishes a
precedent that will reach to himself.
I respectfully dissent.
