AS ABDELBASET AL-MEGRAHI settles in on the far side of the river Styx, let us reflect on the scandal of his final years. It will always be a mark on the administration of President Obama that the Libyan died a free man. He had been convicted in the downing of Pan American World Airways flight 103 over Lockerbie, Scotland, in 1988. There had been opportunity aplenty to act once a Scottish judge gave him his freedom in 2009. But the American government failed to lift so much as a finger.
The administration may-or may not-have had the power to prevent al-Megrahi's release from a Scottish prison or h is flight back home to Libya, where he was greeted by adoring throngs. The judge who freed him supposedly did so on "humanitarian" grounds, because, even though al-Megrahi Killed 270 people, he was suffering from the indignities of prostate cancer. If the terrorist's release caught Mr. Obama and Secretary of State Hillary Clinton by surprise, as they suggested at the time, it's all the more shocking that there was no attempt to seize the mass murderer after he got to Libya.
Let those who believe that such a mission would have been piratical take a look at the precedents established by our courts. It strikes me as an important point, given the twilight nature of the war in which our country has found itself. The record is clear that if, in a lawless world, the violators of our laws are brought back to our shores to face the music, our own be-robed justices won't be overly particular about the methods used to get them here.
This has been established as precedent over a long period of time, including as recently as 1992, in a case involving a Mexican, Humberto Alvarez Machain. As his tale was later told by Chief Justice William H. Rehnquist, Alvarez had been indicted for participating in the kidnapping and murder of a special agent o f the United States Drug Enforcement Administration (DEA), Enrique Camarena Salazar. It was a gruesome situation. As Rehnquist told the story, Alvarez, a medical doctor, worked to prolong "agent Camarena's life so that others could further torture and interrogate him."
The Supreme Court acknowledged that, on April 2, 1990, Alvarez was "forcibly 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," as Rehnquist, writing from the high bench, related the history. He noted that a United States district court "concluded t hat DEA a gents were responsible for respondent's abduction, although they were not personally involved in it." Alvarez then tried to dismiss t he indictment, claiming, as Rehnquist Characterized it, "that his abduction constituted outrageous governmental conduct."
The district court had rejected that argument, but had ordered him sent back to Mexico nonetheless, because his abduction violated America's extradition treaty with Mexico. The fussbudgets on the United States Court of Appeals for the 9th Circuit agreed, possibly because of all the letters of protest America had received from the government of Mexico. But when the matter got to the Supreme Court, as I once put it in Tablet magazine, it turned out that the justices were made of sterner stuff.
What they did was rule that, in effect, the DEA was actually on more solid ground in kidnapping Alvarez than in trying to fetch him through the extradition process. Rehnquist cited United States v. Rauscher, in which the court prohibited the prosecution of a defendant on a charge that was different from the one for which he was extradited, and which wasn't covered by the extradition treaty. More to the point, it seems that once an extradition treaty is followed, the government's hands are bound by the terms of the treaty.
Rehnquist also cited another case, Ker v. Illinois, which involved a thief named Frederick Ker, who had been convicted in an Illinois court for larceny but was hiding out in Peru. Ker's "presence before the court," as Rehnquist put it, "was procured by means of forcible abduction from Peru." Precisely because Ker wasn't brought back via an extradition process, the court decided, Ker's claims to rights under extradition law could be, and were, rejected.
The Supreme Court subsequently cited Ker in upholding Michigan's right to try a man named Shirley Collins, whom the state had allegedly seized, "blackjacked," and brought back to the Wolverine State. "This Court," wrote Justice Hugo Black, "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 'forcible abduction.'"
THAT IS THE VIEW that Chief Justice Rehnquist and most of his colleagues took in the Mexican case. They rejected claims that the mere existence of an extradition treaty ruled out the use of other means to bring a fugitive to justice. Rehnquist went through a scholarly explication. He noted that Alvarez and others who filed briefs in his case "may be correct that respondent's abduction was 'shocking.'" But he concluded that Alvarez'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 case of United States v. Alvarez-Machain did not have a satisfactory outcome. Attorneys gained the Supreme Court's sanction to try him, but the charges were dismissed for lack of evidence. Eventually, Alvarez was sent home. It's a cautionary point in respect to using the courts generally to deal with misdeeds outside our borders, since due process depends on the court's ability to compel the production of evidence, and producing evidence from the far reaches of hostile or unsympathetic countries is often impossible.
The broader point, though, is one to mark, particularly in the midst of the kind of war in which America finds itself. When a crime has been committed under our laws, and our country is being mocked from the safety of a foreign shore the way it was mocked by Scotland and Libya and Abdelbaset al-Megrahi, the government of America can act. And when it does, the Supreme Court will not stand in its way.