Hastings International and Comparative Law Review


Jimmy Gurule


In United States v. Alvarez-Machain, 112 S. Ct 2188 (1992), the United States Supreme Court held that the nonconsensual abduction of a Mexican citizen from Mexican territory by U.S. law enforcement officers did not violate the U.S.-Mexico extradition treaty. The Supreme Court reaffirmed the long-standing Ker-Frisbie doctrine that jurisdiction over the defendant is not impaired when the defendant is forcibly abducted abroad and is brought before the court, and upheld the Court's jurisdiction over respondent Alvarez- Machain.

The Alvarez-Machain decision has sparked a firestorm of international controversy. The opinion has been denounced by foreign governments throughout Latin America and widely criticized by the media and academic legal community as sanctioning government-sponsored international kidnapping. The Alvarez-Machain decision, however, has been grossly distorted by its detractors. This Article analyzes the limited holding in Alvarez-Machait, as well as addresses a critical issue left open by the Supreme Court: whether the forcible abduction of Alvarez-Machain from foreign soil by U.S. law enforcement officers violated international law. The thesis of this Article is that where the safety of U.S. nationals abroad is jeopardized by the failure of a foreign state to act with due diligence to prevent the commission of violent attacks against U.S. citizens, the United States interest in protecting its nationals abroad is superior to, and must take precedence over foreign territorial sovereignty. The safety of U.S. nationals abroad may be jeopardized when a foreign state fails to apprehend, prosecute, punish, or extradite international fugitives, or where the foreign state harbors and thereby aids and abets international criminals.

The facts surrounding the Alvarez-Machain case, including the kidnapping and sadistic torture of a U.S. Drug Enforcement Administration agent abroad, the dismal lack of cooperation by the Mexican government to bring the assailant to justice, coupled with evidence of complicity by high-level Mexican government officials in the murder, make a compelling case for extraordinary rendition under narrowly defined circumstances.