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May 25, 2016

Can The US Government Abduct A Defendant Overseas?

Arrest by Abduction

During the last two decades, it became very common for the U.S. law enforcement to arrest foreign citizens accused of various crimes in the US federal courts. These arrests, which take place overseas, result in defendants’ arguments that their indictments should be dismissed because their arrests were illegal. That is generally not a successful argument. In the past, defendants arrested in other countries by the U.S. government agents asked federal courts to dismiss indictments against them alleging they were illegally abducted and returned to the United States in violation of international laws.

However, in American jurisprudence, there is a well-established principle that has been around since the 19th century, which states that forcible abduction does not take away a court’s jurisdiction over the defendant. This rule applies not only to international abductions but also to interstate abductions. This issue has been addressed by the Supreme Court in United States v. Alvarez-Machain, 504 U.S. 655 (1992). In that case, a Mexican doctor was indicted for torture-murder of DEA agent. The DEA agents then kidnapped the doctor in Mexico and brought him to the United States for trial. The Supreme Court held that the fact that the defendant was abducted did not change the fact that the US courts had jurisdiction over him.

In many recent cases the foreign defendants were not abducted. Rather, they were detained by local law enforcement in third-party countries, had their immigration status revoked, and expelled from the countries. However, instead of deporting them, the local governments (usually friendly with the US) handed the defendants over to the US agents, who then brought them over to the US. This was the case with the Russian pilot Konstantin Yaroshenko. Yaroshenko’s motion to dismiss the indictment based on the fact that he was “abducted” in violation of international law was unsuccessful.

Abduction and Gross Mistreatment by American Officials

In a famous case of United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), a defendant stated that, with the help of American agents, he was seized by Uruguayan police officers, tortured for days and then drugged and flown to the United States to stand trial on drug charges. He was convicted and appealed. The Court held that the facts, if true, would establish a due process violation that would require the district court to strip itself of jurisdiction. The bottom line is that if the facts indicate that the government’s misconduct was egregious enough to raise due process violation issues, the motion to dismiss could be successful although it is not an easy task to accomplish.

On the other hand, the defendant has better chances if the abduction violated an extradition treaty.

Extraordinary Rendition

The most famous and hotly debated practice of seizing and detaining foreign defendants is extraordinary rendition. Extraordinary rendition practice became popular after September 11, 2001 when the US government seized foreign terrorism suspects and sent to third countries for interrogations that would violate due process standards if conducted on them in the United States. Rendition really occurred even before the war on terrorism began but they became much more widespread after the terrorist attacks of September 11th, 2001. Obama Administration allowed the practice to carry on, while promising to screen the process to guarantee that transferred detainees are not tortured. However, many human rights groups continue to criticize the extraordinary rendition practice, suspecting that the no-torture guarantees from a variety of other countries are not truthful.

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