Further to Marty’s post today on the question of Libya’s consent vel non to the recent al-Liby operation, we should also call attention to a long-withheld OLC opinion (13 U.S. Op. Off. Legal Counsel 163 (1989)) on the legality of arrest operations in violation of international law. According to the opinion, 18 U.S.C. § 3052 grants the FBI broad investigative and apprehension authority involving crimes against the United States, including permission to undertake an extraterritorial capture of an individual without the cooperation or consent of the custodial state, even if the actions would be in violation of customary international law; unexecuted treaty obligations, including Article 2(4) of the U.N. Charter; or a valid extradition treaty. The 1989 opinion also asserts that operations in violation of international law or foreign law do not violate the 4th Amendment.
The 1989 Opinion overrides a prior Opinion—Extraterritorial Apprehension by the Federal Bureau of Investigation, 4B Op. O.L.C. 543 (1980)—that reached a contrary conclusion. The 1980 Opinion, issued in connection with the contemplated abduction of fugitive financier Robert Vesco whom the Bahamas refused to surrender, concluded that
a forcible abduction, when coupled with a protest by the asylum state is a violation of international law. … It is regarded as an impermissible invasion of the territorial integrity of another state.
The 1989 Opinion justified its volte face on the grounds that
The United States is facing increasingly serious threats to its domestic security from both international terrorist groups and narcotics traffickers. While targeting the United States and United States citizens, these criminal organizations frequently operate from foreign sanctuaries. Unfortunately, some foreign governments have failed to take effective steps to protect the United States from these predations, and some foreign governments actually act in complicity with these groups. Accordingly, the extraterritorial enforcement of United States law is becoming increasingly important to the nation’s ability to protect its own vital national interests.
The Opinion also noted that this interpretation of §3052 “accords with Congress’ intent to give certain criminal statutes extraterritorial reach,” such as Title 18’s suite of terrorism statutes. The Opinion ultimately concludes:
the power in the Executive to override international law is a necessary attribute of sovereignty and an integral part of the President’s foreign affairs power.
There is nothing akin to stare decisis with respect to OLC opinions, but there are obvious prudential reasons to avoid “overturning” earlier opinions, especially when little has changed in the intervening period to justify such revisions. So, this quick change of heart is notable.
The OLC opinion is concerned mainly with violations of international law directed toward the sanctuary state. It says nothing of the impact violations of the defendant’s rights would have on the jurisdiction of any U.S. court. The United States has long adhered to the doctrine of male captus, bene detentus, known in U.S. law as the Ker-Frisbee doctrine and contained in a line of cases dating from 1886 (Ker v. Illinois, 119 U.S. 436 (1886)). The doctrine was famously reaffirmed in United States v. Alvarez-Machain, 504 U.S. 655 (1992), which was issued before the 1989 OLC Opinion mentioned above was finally publicly released. Ker-Frisbee states that the fact that a fugitive was brought into a court’s jurisdiction by means of an illegal arrest or a forcible abduction in violation of the defendant’s rights does not automatically divest the court of jurisdiction.
A notable exception to this rule was articulated in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), which held that jurisdiction should be barred where cruel or outrageous treatment in violation of the due process clause is involved. In the words of the Second Circuit and subsequent caselaw, a court should decline jurisdiction in situations in which the defendant’s presence at bar was the result of “deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights” rising to the level of “cruel, inhuman, and outrageous treatment” by U.S. government agents. Although Toscanino ostensibly remains good law in the Second Circuit, it has rarely resulted in a court divesting itself of jurisdiction due to police misconduct and has been questioned or rejected in other circuits, notably the Seventh Circuit in Matta-Balesteros v. Henman, 896 F.d 255 (7th Cir. 1990).
Interestingly, the ad hoc international tribunals have largely adopted this same approach, as exemplified in Prosecutor v. Dragan Nikolić, Case No. IT-94-2-Pt, Decision On Defence Motion Challenging The Exercise Of Jurisdiction By The Tribunal (Oct. 9, 2002). Nikolić was allegedly kidnapped by private individuals in Serbia and handed over in Bosnia-Herzegovina to SFOR troops, who then transferred him to the International Criminal Tribunal for the Former Yugoslavia (ICTY). Nikolić argued that by retaining jurisdiction, the Tribunal would in essence condone such kidnappings and all their attendant human rights abuses, which in turn would be attributable to SFOR, to the Prosecutor, and ultimately to the Tribunal itself. The Prosecutor conceded that an exclusionary remedy might be appropriate under some circumstances (namely, when the prosecutor’s office was directly involved with any violation of a defendant’s rights and/or when the conduct in question rose to a level of egregiousness that the Trial Chamber could not, in good conscience, retain jurisdiction), but that neither exception applied to the case at bar. The Trial Chamber basically adopted the Prosecutor’s view, noting that even if the defendant had been returned to the territory of the former Yugoslavia, that state would have been under an immediate obligation to return him to the tribunal, thus resulting in the same outcome.
The ICTR likewise held in dicta that it may decline—as a matter of discretion—to exercise its jurisdiction in cases
where to exercise that jurisdiction in light of serious and egregious violations of the accused’s right would prove detrimental to the court’s integrity.
Prosecutor v. Barayagwiza, Case No. ICTR-97-19, Decision on the Extremely Urgent Motion by the Defence for Orders to Review and/or Nullify the Arrest and Provisional Detention of the Suspect, para. 74 (Nov. 3, 1999). The ICTR further noted,
In a situation where an accused is very seriously mistreated, maybe even subjected to inhuman, cruel or degrading treatment, or torture, before being handed over to the Tribunal, this may constitute a legal impediment to the exercise of jurisdiction over such an accused.
The International Criminal Court has yet to confront this issue.
By contrast, many national systems have gravitated toward a male captus, male detentus position, although state practice is by no means uniform in this area. Just by way of example, in R. v. Hartley,  2 N.Z.L.R. 199 (C.A.), the accused was arrested in Australia and forcibly placed on a plane to New Zealand in disregard of the extradition treaty between the two countries. The court found that the accused was the victim of an illegal detention, and that this abuse of his right to due process gave the court the authority to stay the proceedings. This precedent was applied subsequently in
- Australia (Levinge v. Director of Custodial Services and others, (1987) 9 N.S.W.L.R. 546),
- South Africa (State v. Ebrahim,  2 S.A. 553 (S. Afr. App. Div.)),
- Canada (R v. Jewitt,  2 S.C.R. 128; O’Connor v. The Queen,  4 S.C.R. 411), and
- the U.K. (R. v. Horseferry Road Magistrates’ Court, Ex parte Bennett,  3 All E.R. 138 (H.L.)).
In Bennett, the court noted that
the judiciary accept [sic] a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behavior that threatens either basic human rights or the rule of law.
So far, there are no allegations that Al-Liby has been mistreated in connection with his arrest or transfer to an offshore brig, and it remains unclear to what extent Libya may have consented to the operation in question, either ex ante or ex post, notwithstanding its current public posture of outrage. Given the OLC opinion and Ker-Frisbee, it is unlikely that any U.S. court would stand in the way of the anticipated prosecution going forward in light of the facts as we know them. It remains to be seen whether Libya presses its concerns about the incursion into its territory in diplomatic or other fora.