State-Sponsored Abduction: A Comment on United States v. Alvarez-Machain

On June 15, 1992, the United States Supreme Court confronted what the Permanent Court of International Justice termed in The Lotus to be “the first and foremost restriction imposed by international law upon a State: … that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.” Contrary to popular criticism, the Court did not challenge that proposition. But it did apply, without adequate analysis, an antiquated doctrine that permits a defendant to be tried regardless of the unlawfulness of the seizure. In so doing, it ignored altogether the issue of presidential constitutional power to conduct such seizures. And it placed the issue squarely before Congress.