Suchergebnisse

In my full-length article U.S. Law Enforcement Abroad, I argued that government-sponsored abduction from foreign countries was not only distasteful, but contrary to international law and U.S. constitutional law. Though I acknowledged that the reported decisions here and abroad did not, on the whole, support my argument, I suggested that these decisions were out of step with contemporary international law and current American views of due process of law. I expressed skepticism about many of the defenses of the practice that had been raised by American officials and had too often, in my judgment, been accepted by American courts. In particular, I urged that no great faith be placed in assertions by the U.S. Government that abduction of persons who ended up in American custody were carried out solely by the police of the foreign country, that the United States had no knowledge of or participation in torture, or that the foreign country really consented to the operation, though it could not say so publicly.

In the October 1989 issue of this Journal, I wrote a brief essay concerning the U.S. Constitution and law enforcement abroad. I called attention to the case of Fawaz Yunis, a Lebanese national who was arrested on the high seas by U.S. officers and brought to the United States for trial on charges of aircraft hijacking and hostage taking. Within the space constraints of the Journal's issue commemorating two centuries of the Constitution, I was able to discuss only one of the questions illustrated by the Yunis case—the question of jurisdiction over crimes committed by aliens abroad. My conclusion, in brief, was that a general reliance on passive personality as the basis for jurisdiction—i.e., the U.S. nationality of victims of the offense—was of doubtful validity under the Constitution, but that jurisdiction based on legislation enacted in implementation of international conventions widely adhered to probably was constitutional. The Yunis case raises two other issues that I believe are of continuing interest: (1) to what extent do the constitutional and statutory restraints on U.S. law enforcement officers apply abroad? and (2) does the so-called Ker-Frisbie rule, according to which a court in the United States may try a person brought before it for a crime over which it has jurisdiction—regardless of how the accused came to be before the court—remain valid and persuasive in the last decade of the 20th century? I want to explore these questions here, bearing in mind that the two questions are related to each other, as well as to the question of jurisdiction to prescribe discussed in the earlier article. Before embarking on the analysis, I want to set forth again in somewhat greater length the saga of Fawaz Yunis, as well as that of two other persons recently seized abroad by authority of the United States for trial in the United States.

In recent years, the Congress of the United States has enacted a series of laws criminalizing certain activities committed outside the territory of the United States, even by persons who are not nationals of the United States. The international lawyer would doubtless characterize those laws as assertions by the United States of authority to exercise jurisdiction to prescribe laws on the basis of the principle of "passive personality"—to punish actions directed at the state's nationals—or perhaps as new applications of principles of universal jurisdiction; one might then examine those laws in the light of recent developments in the international law governing state jurisdiction to prescribe.

The first thing to learn about any incident or accident involving airplanes is "wait." The initial reports never have it quite right. This was true about KAL Flight 007, about Pan Am Flight 103, about the bombing of Tripoli and Bengazi, and about Iran Air Flight 655.