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STEVENS, J., dissenting

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 forfeited 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 authority to seize. Gelston v. Hoyt, 3 Wheat. 246, 310 [(1818)]; Taylor v. United States, 3 How. 197, 205–206 [(1845)]. The doctrine is not applicable here. The objection to the seizure is not that it was wrongful merely because made by one upon whom the Government had not conferred 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 territorial 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 possessions 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. Rauscher, 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

STEVENS, J., dissenting

of the United States." Ker v. Illinois, 119 U. S., at 443 (emphasis added).29

29 The exact opposite is true in this case, as it was in Cook.30

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 International Law. See ante, at 665–666, and n. 13. As the text of that proposal plainly states, it would have rejected the rule of the Ker case.31 The failure to adopt that recommendation does not speak to the issue the Court decides today. The

29 As the Illinois Supreme Court described the action: “The arrest and detention of [Ker] was not by any authority of the general government, and no obligation is implied on the part of the Federal or any State government .... The invasion of the sovereignty of Peru, if any wrong was done, was by individuals, perhaps some of them owing no allegiance to the United States, and not by the Federal government.” Ker v. Illinois, 110 Ill. 627, 643 (1884).

30 The Martinez incident discussed by the Court, see ante, at 665, n. 11, also involved an abduction by a private party; the reference to the Ker precedent was therefore appropriate in that case. On the other hand, the letter written by Secretary of State Blaine to the Governor of Texas in 1881 unequivocally disapproved of abductions by either party to an extradition treaty. In 1984, Secretary of State Schultz expressed the same opinion about an authorized kidnaping of a Canadian national. He remarked that, in view of the extradition treaty between the United States and Canada, it was understandable that Canada was "outraged” by the kidnaping and considered it to be “a violation of the treaty and of international law, as well as an affront to its sovereignty." See Leich, Contemporary Practice of the United States Relating to International Law, 78 Am. J. Int'l L. 200, 208 (1984). 31 Article 16 of the draft provides:

"In exercising jurisdiction under this Convention, no State shall prosecute or punish any person who has been brought within its territory or a place subject to its authority by recourse to measures in violation of international law or international convention without first obtaining the consent of the State or States whose rights have been violated by such measures. Harvard Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, 29 Am. J. Int'l L. 435, 623 (Supp. 1935).

STEVENS, J., dissenting

Court's admittedly “shocking” disdain for customary and conventional international law principles, see ante, at 669, 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 respondent 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.32 Such an explanation, however, provides no justification for disregarding the Rule of Law that this Court has a duty to uphold.33 That the Executive may wish to reinterpret 34 the Treaty to

2 See, e.g., Storm Arises Over Camarena; U.S. Wants Harder Line Adopted, Latin Am. Weekly Rep., Mar. 8, 1985, p. 10; U. S. Presses Mexico To Find Agent, Chicago Tribune, Feb. 20, 1985, p. 10.

33 As Justice Brandeis so wisely urged: “In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.” Olmstead v. United States, 277 U. S. 438, 485 (1928) (dissenting opinion).

34 Certainly, the Executive's view has changed over time. At one point, the Office of Legal Counsel advised the administration that such seizures were contrary to international law because they compromised the territorial integrity of the other nation and were only to be undertaken with the consent of that nation. 4B Op. Off. Legal Counsel 549, 556 (1980). More recently, that opinion was revised, and the new opinion concluded that the President did have the authority to override customary international law. Hearing before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 101st Cong., 1st Sess., 4-5 (1989) (statement of William P. Barr, Assistant Attorney General, Office of Legal Counsel, U. S. Department of Justice).

STEVENS, J., dissenting

allow for an action that the Treaty in no way authorizes should not influence this Court's interpretation.35 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 Kerthat 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).36 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 deci

35 Cf. Perkins v. Elg, 307 U. S. 325 (1939) (construing treaty in accordance with historical construction and refusing to defer to change in Executive policy); Johnson v. Browne, 205 U. S. 309 (1907) (rejecting Executive's interpretation).

36 The South African court agreed with appellant that an “abduction represents a violation of the applicable rules of international law, that these rules are part of [South African] law, and that this violation of the law deprives the Court ... of its competence to hear [appellant's] case . . S. Afr. L. Rep., at 8–9.

STEVENS, J., dissenting

sion of this character.37 As Thomas Paine warned, an "avidity to punish is always dangerous to liberty” because it leads a nation “to stretch, to misinterpret, and to misapply even the best of laws.”38 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.” 39 I respectfully dissent.

37 As Judge Mansfield presciently observed in a case not unlike the one before us today: "Society is the ultimate loser when, in order to convict the guilty, it uses methods that lead to decreased respect for the law.” United States v. Toscanino, 500 F. 2d 267, 274 (CA2 1974).

38 2 The Complete Writings of Thomas Paine 588 (P. Foner ed. 1945).

39 lbid.

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