Extraterritorial Apprehension by

the Federal Bureau of Investigation

In the absence o f an international law violation, a federal district co u rt will not ordinarily 

divest itself o f ju risdiction in a crim inal case w h ere the defen d an t’s presence has been 

secured by his forcible abduction from the territorial lim its o f a foreign asylum state.

A forcible abduction, w hen coupled w ith a protest by the asylum state, is a violation o f 

international law; there is, how ever, som e p recedent that com plicity o f asylum state 

officials in the abduction could be the predicate for a finding o f no actual violation o f 

the asylum state’s sovereignty.

C ivil liability on th e part o f th e U nited States o r participating g overnm ent officials 

resulting from a fugitive’s forcible apprehension in a foreign c o u n try will depend on 

the status o f the operation under international law; liability could be p redicated on 

theories o f constitutional o r com m on law to rt, o r on a violation o f international law.

T h e F ederal Bureau o f Investigation has no au th o rity to apprehend and abduct a fugitive 

residing in a foreign state w ithout the asylum state’s consent.

In the absence o f asylum state consent, federal officials m ay be subject to extradition to 

the asylum state for kidnapping.

March 31, 1980

MEMORANDUM OPINION FOR TH E ATTORNEY GENERAL

You have requested that this Office advise you on the implications of 

a proposed operation of the Federal Bureau of Investigation (FBI) that 

might entail entry of American agents into a foreign country and 

forcible apprehension of a fugitive currently residing there. It is to be 

assumed that the foreign country (hereinafter “asylum state”) would file 

a pro forma protest to the fugitive’s apprehension and return to the 

United States. We also assume that the actual apprehension would be 

made by FBI agents, although some elements of the local police force 

might provide physical surveillance and aid in the neutralization of 

bodyguards during the actual apprehension.

The proposed operation raises the following, interrelated legal issues: 

the implications of the seizure for the pending criminal prosecutions of 

the fugitive, the legal status of the operation under existing treaties and 

settled principles of international law, and the possibility of civil liability on the part of the United States or participating government officials. This operation is unorthodox and, therefore, prompts a number of 

legal questions that are of first impression. Although we will discuss all 

the above legal questions separately, we think that the fundamental

543
legal issue presented by this operation is under what circumstances does 

the FBI, as a matter of United States law, have the authority to make 

an extraterritorial apprehension. Although the question is not free from 

doubt, we conclude that the FBI only has lawful authority when the 

asylum state acquiesces to the proposed operation. Since we are to 

assume that a pro forma protest to the operation would be filed, that 

fundamental condition would probably not be satisfied here.

I. Implications for Criminal Prosecutions of Extraterritorial 

Apprehension that Is Subject of Protest

The Supreme Court has consistently stated “that the power of a 

court to try a person for crime is not impaired by the fact that he [has] 

been brought within the court’s jurisdiction by reason of a ‘forcible 

abduction.’ ” Frisbie v. Collins, 342 U.S. 519, 522 (1952).1 It has rejected 

arguments that such abductions constitute violations of the Due Process 

Clause, and has reiterated the vitality of this conclusion in a recent 

Term. Gerstein v. Pugh, 420 U.S. 103, 119 (1975). Lower courts, particularly the Court of Appeals for the Second Circuit, have suggested, 

however, that under some circumstances a federal court might divest 

itself of jurisdiction as a result of the manner in which the defendant 

was brought before it.

The most sweeping statement of these circumstances is to be found in 

United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). There the 

Second Circuit confronted allegations that Toscanino, a citizen of Italy, 

was kidnapped in Uruguay by agents in American employ, tortured and 

interrogated for 17 days in Brazil with the knowledge of and sometimes 

in the presence of United States officials, and finally drugged and put 

on a commercial flight to the United States where he was convicted of 

narcotics violations.2 Questioning the current vitality of the Ker-Frisbie

1 These propositions are often referred to as the Ker-Frisbie doctrine. In the leading case, Ker v. 

Illinois, 119 U.S. 436 (1886), Ker was convicted in the Illinois state courts after being forcibly 

abducted in Peru. Formal extradition had been arranged among the Governor of Illinois, the U.S. 

Secretary of State, and Peruvian officials, but the individual who was sent to accompany Ker back to 

the United States did not present the extradition papers upon arrival in Peru. It was therefore a “clear 

case of kidnapping within the confines of Peru.*' Id. at 443. Although the apprehending agent might be 

subject to criminal prosecution in Peru, the Court found that American law afforded the apprehended 

fugitive no protection.

Frisbie v. Collins, 342 U.S. 319 (1952), involved an interstate abduction. Michigan officers forcibly 

seized Collins in Chicago. Acknowledging that the Michigan officers might be subject to prosecution 

under the Federal Kidnapping Act, the Court held that as far as Collins was concerned, “due process 

of law is satisfied when one present in Court is convicted of crime after having been fairly apprised of 

the charges against him and after a fair trial in accordance with constitutional procedural safeguards. 

There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted 

to escape justice because he was brought to trial against his will.’* Id. at 522. See also Mahon v. Justice,

127 U.S. 700, 708 (1888).

2 Toscanino alleged that he was denied sleep and nourishment for days, fed intravenously at 

survival levels, forced to walk for hours on end, and kicked and beaten. He claimed his fingers were 

pinched by metal pliers; his eyes, nose, and anus washed in alcohol; and his genitals subjected to 

electric shock. There had been no attempt by the United States to extradite Toscanino. Toscanino, 500 

F.2d at 270.

544
doctrine, the Second Circuit relied on Rochin v. California, 342 U.S. 

165 (1952), in concluding that the concept of due process has evolved 

such that a court must now “divest itself of jurisdiction over the person 

where it has been acquired as the result of the Government’s deliberate, 

unnecessary and unreasonable invasion of the accused’s constitutional 

rights.” 500 F.2d at 275.3 If on remand Toscanino’s allegations were 

proven true, the Second Circuit saw a due process violation inherent in 

the bribery of a foreign official, the violence and brutality of the 

abduction, the violations of international law, and the failure to attempt 

extradition of Toscanino.4

Subsequent Second Circuit cases have read Toscanino narrowly and 

other circuits have refused to follow it. In United States ex rel. Lujan v. 

Gengler, 510 F.2d 62 (2d Cir.), cert, denied, 421 U.S. 1001 (1975), the 

Second Circuit emphasized that Toscanino did not mean that “any

irregularity in the circumstances of a defendant’s arrival in the jurisdiction could vitiate the proceedings of the criminal court,” but rather was 

concerned with the “cruel, inhuman and outrageous treatment” that 

Toscanino allegedly received.5

Thus the court concluded that although Lujan was forcibly abducted 

from Bolivia, the lack of any allegation of the type of “shocking 

governmental conduct” involved in Toscanino obviated any application 

of the rationale of that case. Lujan, 510 F.2d at 66.6 It did, however, 

reserve the question whether the fact that an abduction is in violation 

of international law requires dismissal of the criminal indictment: either 

because such illegal governmental conduct constitutes a violation of 

due process or because a federal court should, as a matter of judicial 

administration, refuse to be a party to official misconduct. Id. at 68.7 

The court perceived no international law violation in Lujan because 

there had been no protest by the foreign governments involved. 

Id. at 67.

Other circuits have resolutely invoked the Ker-Frisbie doctrine to 

dismiss arguments that American courts should divest themselves of 

their criminal jurisdiction over a defendant because his presence was

3 The court did not have the benefit of the Supreme Court’s endorsement in Gerstein v. Pugh, 420 

U.S. at 119, of the Ker-Frisbie doctrine.

4 The court of appeals noted that even if the Ker-Frisbie doctrine was still good law, it could make 

use of its supervisory power over the district court to upset Toscanino’s conviction in order "to 

prevent district courts from themselves becoming ‘accomplices in willful disobedience of law.’ ” 

Toscanino, 500 F.2d at 276, quoting McNabb v. United Slates, 318 U.S. 332, 345 (1943). On remand the 

district court found that Toscanino's allegations had no basis in fact. United States v. Toscanino, 398 F. 

Supp. 916 (E.D. N.Y. 1975).

*510 F.2d at 65 (emphasis in original). See also United States v. Lira, 515 F.2d 68 (2d Cir.), cert,

denied. 423 U.S. 847 (1975) (Toscanino distinguished because no direct United States involvement in 

torture by Chilean police).

6 Lujan, a licensed pilot, alleged that while residing in Argentina, he was hired by an individual to 

fly to Bolivia. He claimed that his employer was in fact paid by American agents to lure Lujan out of 

Argentina. In Bolivia, Lujan was arrested by Bolivian police who were also allegedly paid by 

American agents. He was ultimately put on a plane by Bolivian and American agents and formally 

arrested upon his arrival in the United States. Lujan. 510 F.2d at 63.

7 See supra, note 4.

545
procured through a forcible abduction.8 Moreover, a number of those 

courts have suggested that jurisdiction should be retained even if the 

abduction violates international law.9 We note, however, that there is 

apparently no reported case where the abduction was the subject of a 

formal diplomatic protest by the asylum state.

It is our opinion that even where an abduction is a technical violation 

of international law, a federal district court should not divest itself of 

jurisdiction over the fugitive’s criminal prosecution.10 We think this 

position is dictated by logic and precedent. In Frisbie, 342 U.S. 522, the 

Supreme Court assumed that the conduct of the Michigan authorities 

who abducted Collins from Chicago constituted a violation of the 

Federal Kidnapping Act. It concluded, however, that the Kidnapping 

Act “cannot fairly be construed so as to add to the list of sanctions 

detailed a sanction barring a state from prosecuting persons wrongfully 

brought to it by its officers. It may be that Congress could add such a 

sanction. We cannot.” Frisbie, 342 U.S. at 523. A dismissal remedy for a 

violation of international law is even less appropriate. The interests 

protected by international law are those of sovereign nations. Any 

interest of individuals is at best derivative. See Lujan, 510 F.2d at 67. 

By contrast, the Federal Kidnapping Act is unquestionably for the 

protection of individuals; yet under the principles of Frisbie, a forcible

8 E.g., United Slates v. Postal, 589 F.2d 862, 865 (5th C ir). cert, denied, 444 U.S. 832 (1979) (arrest 

by Coast Guard upon the high seas); United States v. Mariano, 537 F.2d 257, 271-72 (7th Cir. 1976), 

cert. denied, 429 U.S. 1038 (1977) (allegations of unlawful arrest in and forcible abduction from Grand 

Cayman Island; Toscanino characterized as only departure from Ker-Frisbie doctrine); Waits v. 

McGowan, 516 F.2d 203 (3d Cir. 1975) (allegedly illegal removal from Canada to New York); United

States v. Cotten. 471 F.2d 744, 747-49 (9th Cir.). cert, denied, 411 U.S. 936 (1973) (forcible removal 

from Vietnam).

There is a standard formulation of the Ker-Frisbie doctrine reiterated in these cases:

It has long been held that due process has been satisfied when a person is apprised of 

the charges against him and is given a fair trial. The power of a court to try a person is 

not affected by the impropriety of the method used to bring the defendant under the 

jurisdiction of the court [citing Ker and Frisbie). Once the defendant is before the 

court, the court will not inquire into the circumstances surrounding his presence there.

United States v. Mariano. 537 F.2d at 271.

9 E.g., Postal, 589 F.2d at 873 (“This proposition, the so-called Ker-Frisbie doctrine, is equally valid 

where the illegality results from a breach of international law not codified in a treaty"); United States

v. Cadena. 585 F.2d 1252, 1261 (5th Cir. 1978) United States v. Winter, 509 F.2d 975, 984-86 (5th Cir.), 

cert, denied. 423 U.S. 825 (1975) (Ker-Frisbie doctrine makes it unnecessary to inquire whether arrest 

by Coast Guard within territorial waters of Bahamas violated international law); Autry v. Wiley, 440 

F.2d 799, 802-03 (1st C ir), cert, denied. 404 U.S. 886 (1971).

Oftentimes courts simply do not discuss the status of the abduction under international law. E.g..

Marzano, 537 F.2d 257; United States v. Herrera. 504 F.2d 859 (5th Cir. 1974); United States v. Vican,

467 F.2d 452 (5th Cir. 1972), cert, denied. 410 U.S. 967 (1973).

10 Cadena. 585 F.2d at 1261 (“no basis for concluding that violations of these international principles must or should be remedied . . . by dismissal of the indictment unless Fourth Amendment 

interests are violated”); Autry v. Wiley. 440 F.2d at 801-02; see also Waits v. McGowan, 516 F.2d 203, 

208 (3d Cir. 1975) (“the protections or rights which accrue to the extradited person primarily exist for 

the benefit of the asylum nation . . ., whereas plaintiffs complaint alleges violation of rights of citizens 

of the demanding nation (The United States of America)*’).

American courts are charged with the vindication of international law principles to the extent those 

principles are consonant with American law. The Paquete Habana, 175 U.S. 677, 700 (1900). The thrust 

of the abduction cases is that relinquishing criminal jurisdiction is not the means to vindicate those 

principles.

546
abduction in violation of that Act does not divest an American court of 

jurisdiction.

In sum, we are of the opinion that in the absence of an international 

law violation, a federal district court will not ordinarily divest itself of 

jurisdiction in a criminal case where the defendant’s presence has been 

secured by forcible abduction from the territorial limits of a foreign 

asylum state. Nor should it do so where there is an international law 

violation. However, since you have advised us that you expect a pro 

forma diplomatic protest by the asylum state and that the fugitive’s 

prosecution will proceed in the Southern District of New York, it is 

necessary to examine the international law implications of this operation 

more closely. As we have noted, the Second Circuit has expressly 

reserved the question whether a violation of international law should 

result in relinquishment of criminal jurisdiction over the suspect.

II. International Law Implications of the Proposed Operation

There is one line of authority in American jurisprudence that does 

create an exception to the Ker-Frisbie doctrine. As Congress by statute 

can modify the jurisdiction of federal courts, so too can a treaty. Thus 

the Supreme Court has held that a treaty can divest federal courts of 

jurisdiction in certain circumstances if such was the intent of the document. Cook v. United States, 288 U.S. 102, 112 (1933); Ford v. United

States, 273 U.S. 593, 610-11 (1927). As the Fifth Circuit recently noted, 

for a treaty to have such an effect, it must be self-executing or implemented by statute.11

There are two arguably relevent treaties between the United States 

and the asylum state that must be considered in this case. They are the 

extradition treaty between the two countries and the United Nations 

Charter. It is well-established that the existence of an extradition treaty 

simpliciter does not defeat U.S. jurisdiction over a fugitive apprehended 

outside the extradition mechanism.12 And there is nothing in the terms 

of the existing extradition treaty that suggests that this government has 

yielded jurisdiction over U.S. nationals who have committed crimes in 

this country simply because they obtained refuge in the asylum state.13

The second relevant treaty is the United Nations Charter to which 

both the United States and the. asylum state are signatories.

11 Postal, 589 F.2d at 875-76. A treaty does not provide rules of decision for American courts 

unless that is the intent of the document, Le., the treaty is self-executing. Whitney v. Robertson, 124 

U.S. 190, 194 (1888); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). Of course, implementing 

domestic legislation does provide rules of decision capable of judicial enforcement.

12 Ker, \ 19 U.S. at 444 (1886); Waits v. McGowan. 516 F.2d at 206-08; Lujan. 510 F.2d at 66; United

States v. Sobell. 244 F.2d 520, 524-25 (2d Cir.), cert, denied, 355 U.S. 873 (1957).

13 By its terms it does not constitute an agreement that extradition will be the exclusive means of 

obtaining custody of a fugitive. Nor does it purport to limit the criminal jurisdiction of either 

sovereign.

547
All Members shall refrain in their international relations 

from the threat or use of force against the territorial 

integrity or political independence of any state, or in any 

other manner inconsistent with the Purposes of the United 

Nations.

U.N. Charter, art. 2, para. 4.

This provision has been at issue in a number of forcible abduction cases, 

including Toscanino and Lujan. The leading precedent on forcible abduction’s status under the United Nations Charter is that involving the 

apprehension of Adolph Eichmann in Argentina by Israeli agents. Argentina objected to the United Nations Security Council, which subsequently adopted a resolution:

Considering that the violation of the sovereignty of a 

Member State is incompatible with the Charter of the 

United Nations . . . [and njoting that the repetition of 

acts such as that giving rise to this situation would involve a breach of the principles upon which international 

order is founded creating an atmosphere of insecurity and 

distrust incompatible with the preservation of peace . . .

[the Security Council requests] the Government of Israel 

to make appropriate reparation in accordance with the 

Charter of the United Nations and the rules of international law.14

Commentators have construed this action to be a definitive construction 

of the United Nations Charter as proscribing forcible abduction in the 

absence of acquiescence by the asylum state.15

It is our opinion that even if the operation under consideration is 

construed to be a violation of the United Nations Charter, the criminal 

jurisdiction of American courts is unaffected. We base our opinion on 

the grounds that the United Nations Charter is not a self-executing 

treaty and that it was not intended by the United States at the time of 

ratification to affect the criminal jurisdiction of federal courts. There is 

not a great deal of case law on these points. However, as the Fifth 

Circuit observed in Postal, 589 F.2d at 876, the self-executing nature of 

a treaty is a matter of intent. The broad sweep and hortatory tone of 

Article 2 belies any argument that a binding, self-executing limitation 

on the criminal jurisdiction of American courts is evident in its terms.16

14 Quoted in W. Bishop, International Law 475 n.52 (1962).

15 E.g., Lujan, 510 F.2d at 66-68; Abramovsky & Eagle, U.S. Policy in Apprehending Alleged

Offenders Abroad: Extradition, Abduction, or Irregular Rendition?, 57 Or. L. Rev. 51, 63 (1977); see

Silving, In re Eichmann: A Dilemma o f Law and Morality, 55 Am. J. Int’l L. 307 (1961).

16 See generally, L. Goodrich, E. Hambro & A. Simmons, Charter of the United Nations: Commentary and Documents 43-55 (1969).

548
And courts that have considered provisions of the United Nations 

Charter have concluded that they are not self-executing.17

It is a more difficult question whether the proposed operation is a 

violation of general international law principles, albeit not a violation of 

a self-executing treaty. As Judge Kaufmann indicates in his majority 

opinion in Lujan, it appears to be the case that a forcible abduction, 

when coupled with a protest by the asylum state, is a violation of 

international law. Lujan, 510 F.2d at 67. It is regarded as an impermissible invasion of the territorial integrity of another state. Since the 

asylum state would hardly attest to the fact that the protest is pro 

forma, there is little to be gained in the instant case by characterizing it 

as such. Nor do there appear to be any doctrines of self-help or selfdefense applicable in this context.

There may be, however, some precedent in international law for the 

argument that complicity of asylum state officials in the abduction robs 

the asylum state’s protest of its import under international law. In 1911 

the Permanent Court of Arbitration at The Hague declined to order the 

return to France of one Savarkar. Savarkar had escaped to France from 

a British ship, only to be returned to the British by a French policeman. 

The Court of Arbitration found that the French official’s cooperation 

avoided any violation of French sovereignty that might otherwise have 

occurred.18 Likewise, the complicity of the asylum state’s police in the 

proposed operation could be the predicate for a finding of no actual 

violation of the asylum state’s sovereignty. One obvious drawback to 

this argument is that it forces this government to put in issue the 

identity of its asylum state collaborators. We also note that the Court of 

Arbitration in the Savarkar case found that the British officials had no 

reason to know that the French official was not acting with the approval of the French government. No similar claim of ignorance could 

be made about the operation under consideration.

We conclude that the best assumption for purposes of analyzing the 

implications of the proposed operation is that although not a violation 

of a self-executing treaty, it would violate international law. That significantly heightens the litigation risks in the Second Circuit, which has 

explicitly declined to define the implications of an international law 

violation on criminal jurisdiction.

III. Civil Liability

We think the case for obtaining at least the acquiescence of the 

asylum state is compelling when the criminal litigation risks are coupled

17 Sei Fujii v. State, 242 P.2d 617, 620 (Cal. 1952) (human rights provisions of U.N. Charter not selfexecuting); Pauling v. McElroy, 164 F. Supp. 390, 393 (D.D.C.), afJTd, 278 F.2d 252 (D.C. Cir.), cert,

denied. 364 U.S. 835 (1960) (finding other section? of Charter not self-executing).

,a The case is discussed in Lujan, 510 F.2d at 67, and can be found at Judicial Decisions Involving

Questions o f International Law. 5 Am. J. Int’l L. 490, 520 (1911).

549
with the possibility of civil liability.19 Civil liability will turn to a 

substantial degree on whether the FBI is authorized to conduct this 

operation and that, in our view, will depend on the status of the 

operation under international law.

In Ker v. Illinois, the penultimate paragraph in the Supreme Court’s 

opinion reads as follows:

It must be remembered that this view of the subject 

does not leave the prisoner or the Government of Peru 

without remedy for his unauthorized seizure within its 

territory. Even this treaty with that country provides for 

the extradition of persons charged with kidnapping, and 

on demand from Peru, Julian [the party who abducted 

Ker], could be surrendered and tried in its courts for this 

violation of its laws. The party himself would probably 

not be without redress, for he could sue Julian in an 

action of trespass and false imprisonment, and the facts set 

out in the plea would without doubt sustain the action. 

Whether he could recover a sum sufficient to justify the 

action would probably depend upon moral aspects of the 

case which we cannot here consider.

119 U.S. at 444.

As the above quotation indicates, the question of civil liability is 

certainly an open one, as is the criminal liability of the apprehending 

agents and others under asylum state law. We discuss criminal liability 

in Part IV below.

There appear to be three potential civil liability theories: constitutional violations by American agents, common law torts committed by 

American agents (i.e., false imprisonment), and violation of international 

law. The potential defendants are the federal government and individual government officials involved in this operation.20

By virtue of the Federal Tort Claims Act (FTCA), the United States 

has waived sovereign immunity with respect to the torts of assault, false 

imprisonment, and false arrest. 28 U.S.C. §§ 2674, 2680(h). The authorities are split on whether that waiver includes related constitutional 

torts.21 There is, however, unanimous, albeit limited, authority that 

even for common law torts, the FTCA is not a total waiver of sovereign immunity. In the leading case, the Fourth Circuit has held that

19 By “acquiescence" we do not m6an formal endorsement. It is sufficient that the asylum state 

agree not to protest the apprehension.

20 Those who authorize, direct, participate in, or ratify the operation are potentially liable.

21 Compare Norton v. United Stoles* 581 F.2d 390 (4th Cir.), cert, denied, 439 U.S. 1003 (1978), with

Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978). Birnbaum, however, did not have to consider 

the effects of the 1973 amendments to the FTCA. We think that the best assumption in light of those 

amendments is that the FTCA does waive sovereign immunity for damage actions predicated on 

Fourth Amendment violations. Boger, Gitenstein & Verkuil, The Federal Tort Claims Act Intentional

Torts Amendment: An Interpretative Analysis, 54 N.C. L. Rev. 497 (1976).

550
immunity that is available to government officers sued in their personal 

capacities can also be asserted by the government when it is sued in 

their stead under the FTCA.22 Therefore, the key to analyzing the 

potential for civil liability is to determine whether government officials 

involved in this operation would enjoy either an absolute or qualified 

immunity if sued individually for damages.

The Supreme Court has held that federal officials have a qualified 

immunity from damage actions in cases of constitutional torts, and 

that immunity at least that great governs common law torts.23 Qualified 

immunity will be available for the proposed operation if it is within the 

outer limits of the FBI’s authority and is conducted in good faith with a 

“ ‘reasonable belief in the validity of the arrest and search and in the 

necessity for carrying out the arrest and search in the way the arrest 

was made and the search was conducted.’ ” 24 For reasons stated below, 

we think those conditions are satisfied only if the operation is conducted with the acquiescence of the asylum state.

Law enforcement officers are acting beyond the “outer limits” of 

their authority when they act beyond their jurisdiction.25 As the instant 

operation is presently conceived, the FBI and its agents are likely to be 

found not acting within these jurisdictional bounds because U.S. agents 

have no law enforcement authority in another nation unless it is the 

product of that nation’s consent. We have on prior occasions counseled 

that the FBI has lawful authority under United States law to conduct 

investigations in a foreign country provided those investigations relate 

to a matter within the statutory jurisdiction of the FBI. While no 

statute explicitly authorizes the FBI to conduct investigations outside of 

the United States, 28 U.S.C. § 533(1) contains no geographical restrictions and its general authorization—to detect and prosecute crimes 

against the United States—would appear to be broad enough to sanction activity toward this end no matter where it was undertaken. But 

we have coupled that opinion with the recommendation that any operations strictly adhere to local law and function with the knowledge and 

at least tacit approval of the country involved. We think any argument 

that § 533 gives the FBI authority to make forcible arrests anywhere in 

the world is at best tenuous; the sounder interpretation is that its 

authority is limited, like that of the United States generally, by the 

sovereignty of foreign nations. As we indicated in Part II, the asylum

22 Norton, 581 F.2d at 394-97; see Daniels v. United States, 470 F. Supp. 64 (E.D.N.C. 1979).

**Butz v. Economou, 438 U.S. 478, 506-08 (1978) (holding that only a qualified immunity is 

available for most constitutional torts); Barr v. Matteo, 360 U.S. 564 (1959) (absolute immunity 

available for some common law torts); see Expeditions Unlimited, Aquatic Enterprises, Inc. v. Smithsonian Institution, 566 F.2d 289 (D.C. Cir. 1977), cert, denied, 438 U.S. 915 (1978); Granger v. Marek,

583 F.2d 781, 784 (6th Cir. 1978).

24 Norton v. United States, 581 F.2d at 393 (quoting Bivens v. Six Unknown Named Agents o f Federal

Bureau o f Narcotics, 456 F.2d 1339, 1348 (2d Cir. 1972)).

Bates v. Clark, 95 U.S. 204, 208-10 (1877) (no official immunity for seizure not made in 

Indian country because relevant statute only authorized seizure in Indian country). Bates and similar 

cases are discussed approvingly in Butz v. Economou. 438 U.S. at 489-95.

551
state’s sovereignty would be “violated” for purposes of subsequent 

litigation if it filed a formal protest.

Our conclusion regarding the scope of § 533 is dictated by two 

distinct but related lines of analysis. A conventional statutory construction rule regarding the scope of an official’s authority states that where 

a statute imposes a duty, it authorizes by implication all reasonable and 

necessary means to effectuate such duty. Given the target’s fugitive 

status and the inadequacy of extradition,26 it can be forcefully argued 

that this operation is necessary if the FBI is to carry out its law 

enforcement mission under § 533. However, the reasonableness of the 

operation is questionable if it violates international law or United States 

law. All methods of rendition outside the traditional extradition mechanism have received substantial criticism from international law specialists and in academic journals. The tenor of these remarks is that such 

extraordinary means of apprehension undermine international order and 

breed disrespect for the traditional means of fostering cooperation and 

arbitrating disputes among nations.27 Judges in abduction cases have 

expressed concern that such extraordinary apprehensions denigrate the 

rule^)f law in the name of upholding it.28 We think that concern, when 

coupled with a U.S. or international law violation, may well lead courts 

to conclude that the activity lies beyond the jurisdiction of the FBI.29

The opinion of Chief Justice Marshall in The Schooner Exchange v. 

McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812) suggests a second approach to defining the limits of the FBI’s jurisdiction under § 533. The 

FBI’s power cannot extend beyond those of the United States. The de

jure authority of the United States is necessarily limited by the sovereignty of other nations:

26 We are assuming that it can be established that extradition is an inadequate means of apprehension 

in this case. We emphasize here the importance of an ability to make such a showing.

11 E.g.. M. Bassiouni, International Extradition and World Public Order 121 -201 (1974); and sources 

cited supra, note 16.

28 Although he concurred in the result in Lira. 515 F.2d at 73, this concern prompted Judge Oakes 

to observe: “To my mind the Government in the laudable interest of stopping the international drug 

traffic is by these repeated abductions inviting exercise of [the court's] supervisory power in the 

interest of the greater good of preserving respect for law.” See also. Toscanino. 500 F.2d at 276.

29 It should be noted that this is to argue that the FBI has the authority to violate the local law of 

another country as long as that country does not object. We think three doctrines, although none is 

addressed directly to the question under consideration, conjoin to support this conclusion.

First, the “act of state” doctrine evinces “judicial deference to the exclusive power of the Executive 

over conduct of relations with other sovereign powers” and “precludes any review whatever of the 

acts of the government of one sovereign State done within its own territory by the courts of another 

sovereign State." First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 763, 765 (1972) 

(opinion of Rehnquist, J.). We think that to say the FBI had no authority to apprehend the fugitive, 

despite the acquiescence of the asylum state, because such apprehension was in violation of local law 

is in fact to judge the actions of the asylum state—here its failure to enforce arguably applicable local 

law. Second, it is tantamount to giving an individual the right to dispute a nation’s conception of its 

own sovereign interests in violation of the principle that only the sovereign has standing to assert and 

construe its interest. Third, there is the maxim that the penal laws of a foreign country are not 

enforced in the courts of this country, but must be enforced in the place where the violation occurs. 

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 413-14 (1964).

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The jurisdiction of the nation within its own territory is 

necessarily exclusive and absolute. It is susceptible of no 

limitation not imposed by itself. Any restriction upon it, 

deriving validity from an external source, would imply a 

diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same 

extent in that power which could impose such restriction.

All exceptions, therefore, to the full and complete 

power of a nation within its own territories, must be 

traced up to the consent of the nation itself. They can 

flow from no other legitimate source.

11 U.S. (7 Cranch) at 136.

In short, both lines of analysis suggest that in the absence of asylum 

state consent, the FBI is acting outside the bounds of its statutory 

authority when it makes an apprehension of the type proposed here— 

either because § 533 could not contemplate a violation of international 

law or because the powers of the FBI are delimited by those of the 

enabling sovereign. Once the “authority” hurdle is surmounted, however, we think that the other parts of the good faith defense are readily 

met. There is ample probable cause and a number of outstanding bench 

warrants.

Assuming the operation goes forward without asylum state consent, 

it is necessary to examine more closely the civil liability theories that 

may be put forward by the fugitive. There are two constitutional 

arguments available to him. The first is that he is subject to an unreasonable search and seizure in violation of the Fourth Amendment. The 

second is the Fifth Amendment due process argument based on the 

logic of Toscanino. The Bill of Rights does apply to actions of American officials directed at American nationals overseas,30 and it is our 

view that the proposed operation would have some Fourth Amendment 

problems due to the absence of asylum state consent.

The standard Fourth Amendment requirement for an arrest is that it 

be based on probable cause. Beck v. Ohio, 379 U.S. 89, 91 (1964); 

Gerstein v. Pugh, 420 U.S. at 111-12. “[WJhile the Court has expressed 

a preference for the use of arrest warrants when feasible . . . , it has 

never invalidated an arrest supported by probable cause solely because 

the officers failed to secure a warrant.” Id. at 113. Here we have 

warrants and probable cause. The Fourth Amendment problem stems 

instead from the FBI’s lack of statutory authority for an extraterritorial 

apprehension that has not been sanctioned by the asylum state.

Where federal officials act without explicit statutory authority, the 

validity of an arrest in this country turns on whether it meets the

30 Reid v. Covert 354 U.S. 1, 5-6 (1957); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144,

160-61 (1976).

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standards for a valid citizen’s arrest under state law.31 If a court 

extrapolated that reasoning to the international context, the pertinent 

question would be the standards for a citizen’s arrest in the asylum 

state.32 The rule in the asylum state is that “[a]ny person may, with or 

without warrant or other legal process, arrest and detain another 

person who has committed a felony.” Presumably this is a reference to 

domestic felonies; otherwise the statute would authorize arrests for 

crimes that are not punishable in domestic courts and are not the 

subject of an extradition order. Thus we think this asylum state statute 

could not afford to U.S. officials authority to arrest for U.S. felonies 

within the asylum state’s territory. So in the absence of asylum state 

consent and the § 533 authority to arrest that comes with it, the fugitive 

has a plausible Fourth Amendment claim. In contrast, for reasons stated 

in Part I of this memorandum to support the conclusion that, in the 

absence of the brutality alleged in Toscanino, there is no due process 

violation warranting divestment of jurisdiction, we conclude that there 

would be no Fifth Amendment violation warranting a civil remedy.

We do not view a violation of international law as a legally sufficient 

independent basis for a civil action. The reason is the distinct compass 

of international law. Last February the Fifth Circuit observed in the 

analogous context of a vessel seizure:

Since 1815 it has been established that redress for improper seizure in foreign waters is not due to the owner 

or crew of the vessel involved, but to the foreign government whose territoriality has been infringed by the 

action.33

The fugitive lacks standing to pursue the violation of international 

law.34

The final potential bases for civil liability on the part of the federal 

government and individual federal officials are the common law torts of 

false imprisonment, false arrest, assault and battery. And to the question 

of liability must be added the question of forum.

S1 See United States v. Di Re. 332 U.S. 581. 589-92 (1948); Alexander v. United States. 390 F.2d 101 

(5th Cir. 1968); United States v. Viale. 312 F.2d 595, 601 (2d Cir ), cert, denied. 373 U.S. 903 (1963).

38 Of course, a court could also conclude that federal agents do not have any citizen's arrest 

privileges in the asylum state and therefore cannot avail themselves of citizen arrest standards to argue 

the validity of the seizure.

33 United States v. Conroy. S89 F.2d I2S8, 1268 (5th Cir. 1979); see also The Richmond. 13 U.S. (9 

Cranch) 102. 103 (1815).

34 Nor does the international law argument add to the fugitive's potential Fourth Amendment 

claims, except to the extent that it delimits the statutory authority of the FBI. As the Fifth Circuit has 

noted:

W hether the search and seizure were Fourth-Amendment-unreasonable must be established by showing that interests to be served by the Fourth Amendment were violated, 

and not merely by establishing the violation of general principles of international law.

Cadena. 585 F.2d at 1264.

We note that by its terms the Federal Kidnapping Act is inapplicable in the context of the proposed 

operation. It pertains to abductions “within the special maritime and territorial jurisdiction of the 

United States.’* 18 U.S.C. § 1201(aX2). But see Toscanino, 500 F.2d at 276.

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Although a civil suit in the asylum state against U.S. officials is 

theoretically possible, it is an unlikely course for the fugitive to take 

because of the obvious logistical problems, the fact the United States 

would not be amenable to suit there, and difficulties the asylum state 

courts would have in obtaining personal jurisdiction over individual 

government officers. It is much more likely that any action for common 

law torts would be instituted in the United States, and we think such an 

action could be maintained in this country.

According to private international law, injuries to a person or personal property of another are transitory and the right to redress follows 

the defendant to foreign lands.35 This principle has been recognized in 

the United States.36 All that is necessary is that the defendant be found 

within a jurisdiction in this country. The law to be applied is normally 

that of the site of the tortious conduct—the asylum state in this 

case 37—although we think American law would still govern the question of immunity.38 It is always possible that the fugitive would be 

nonsuited because a court regards the cause of action as repugnant to 

the policies of the forum state. But the dicta in Ker about damage 

actions make that result less certain,39 and we think that in the absence 

of an immunity defense the United States and individual federal officials 

could be held liable for false imprisonment.

The law of the place of the tort also usually governs the damage 

award.40 Exemplary damages are available under English common law, 

and consequently asylum state law, as are damages for nervous 

shock.41 By their very nature, the size of such awards is impossible to 

predict; we can only advise that exemplary damages would not be 

available in an action against the United States.42 Although there is no 

precedent on point, we think that it is unlikely that an American court 

would be receptive to an argument that a fugitive should be compen35 See, e.g.. G. Cheshire, Private International Law 240-42 (1965).

See. e.g.. Slater v. Mexican National R.R. Co.. 194 U.S. 120 (1904); Schertenleib v. Traum. 589 

F.2d 1156, 1165 (2d Cir. 1978); Mobil Tankers Co. v. Mene Grande Oil Co.. 363 F.2d 611, 615 (3d Cir ), 

cert, denied. 385 U.S. 945 (1966).

37 See generally, G. Cheshire, Private International Law 240-57 (1965); M. Hancock, Torts in the 

Conflict of Laws 54-63 (1942); Restatement (Second) of the Conflict of Laws §§ 10, 145 (1969). Of 

course, this is not an ironclad rule and the government would be free to argue that a suit between a 

U.S. citizen and his government created a sufficient nexus with the American forum to dictate the 

application of its tort liability principles. But those principles are unlikely to vary sufficiently to make 

a difference in the outcome.

38 Although state law may govern the cause ®f action, federal courts have applied a uniform federal 

rule in determining whether the defendant enjoys official immunity. Barr v. Matteo, 360 U.S. 564, 569- 

76 (1959). There is no justification for departing from that rule because the cause of action arises under 

foreign law.

39 Appellate courts have had divergent views on what forum the Supreme Court had in mind when 

it alluded to damage actions in Ker, 119 U.S. at 444. Compare Waits v. McGowan, 516 F.2d at 207 n.7 

(damage actions in state courts) with United States ex rel. Lujan v. Gengler, 510 F.2d at 64-65 n.3 

(damage actions in foreign courts).

40 See G. Cheshire, Private International Law 602-04 (1965); M. Hancock, Torts in the Conflict of 

Laws 113-120 (1942); Restatement (Second) of Conflict of Laws §§ 10, 145, 171 (1969).

41 H. Street, The Law of Torts 114-17, 440 (1976).

42 28 U.S.C. §2674; see. e.g.. Johnson v. United States, 547 F.2d 688, 690 n.5 (D.C. Cir. 1976).

555
sated for his lost opportunity to evade the lawful processes of the 

United States. Such an argument suggests a personal “right of asylum,” 

a right explicitly rejected in Ker, and the argument could be properly 

rebuffed as against the public policy of the forum. Also injunctive 

relief, ordering that the fugitive be returned to the asylum state, is 

squarely inconsistent with Ker. We note that there is no provision for 

indemnification of government officials held liable in an action for false 

imprisonment.43

IV. Criminal Liability and the Importance of Asylum State Consent

The importance of asylum state consent is perhaps most dramatically 

highlighted by the possibility that federal officials may be extraditable 

to the asylum state for kidnapping.44 A number of abduction cases, 

including Ker, have discussed this possibility.45 The only effective 

safeguard against the diplomatic embarrassment and personal anxiety an 

extradition request would create is a prior agreement with the asylum 

state that no extradition request will be made.

In sum, asylum state consent appears pivotal to the success of the 

operation, both as a matter of litigation and public perception. A formal 

diplomatic protest w6uld force the Second Circuit to decide whether to 

divest the district court of its criminal jurisdiction as a result of the 

international law violation. It would make an immunity claim in any 

civil action difficult to maintain as well as provide the fugitive with a 

strong argument that the operation violated his Fourth Amendment 

rights. It would present the possibility of an embarrassing extradition 

request. Finally, in the current international climate, this country can ill 

afford an operation that would permit others to argue that the United 

States does not respect international law. We advise that you not 

authorize the operation without the asylum state’s tacit consent.

V. Miscellaneous Considerations

If an apprehension is to be made, we recommend that it be made in 

the same manner as any professional arrest: with expedition, minimum

43 Torts Branch Monograph, Damage Suits Against Federal Officials, Department of Justice Representation, Immunity 10-11 (Nov. 1978).

44 Art. 3, para. 7 of the extradition treaty between the United States and the asylum slate lists 

kidnapping and false imprisonment as extradition offenses. The penal code of the asylum state 

provides:

A person is guilty of kidnapping—

(1) who unlawfully imprisons any person, and takes him out of the jurisdiction of the 

court, without his consent; or

(2) who unlawfully imprisons any person within the jurisdiction of the court, in such 

a manner as to prevent him from applying to a court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to 

prevent any person entitled to have access to him from discovering the place where he 

is imprisoned.

45 E.g., Lujan, 510 F.2d at 64-65 n.3; Villareal v. Hammond, 74 F.2d 503, 505-06 (5th Cir. 1934); 

Collier v. Vaccaro, 51 F.2d 17, 20-21 (4th Cir. 1931).

556
restraint, and with full sensitivity to the fugitive’s physical needs and 

constitutional rights. We would recommend that the fugitive be informed of his rights and the presence of outstanding warrants immediately upon his apprehension in the the asylum state and again immediately within the territorial confines of the United States. Even if the 

fugitive waives his rights, we recommend that there be no attempt at 

interrogation until the fugitive is within the territorial limits of the 

United States.

As far as the participation of asylum state nationals is concerned, we 

make the following observations: Insofar as foreign nationals are acting 

at the behest or direction of this government, they will be regarded as 

American agents by the courts. If they take action outside the ambit of 

that agency relationship, e.g., resort to torture, this government may 

successfully maintain that it was not a party to that action.46 But this 

does not militate in favor of using asylum state nationals because FBI 

agents are not likely to engage in improper conduct in the first place. 

We think that the use of foreign nationals raises more questions of 

strategy than of law. Only if foreign nationals, without U.S. direction 

or compensation, deposited the fugitive on American soil would the 

legal problems in this memorandum be obviated by their presence.

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

<a Eg.. Lira. 515 F.2d at 70-71.

557