COLUMN RIGHT/ TERRY EASTLAND : Supreme Court Rightly Passes the Ball : The kidnaping decision puts treaty disputes where they belong--with the executive.

A “monstrous” decision is what Justice John Paul Stevens, writing in dissent, called Chief Justice William H. Rehnquist’s opinion for the Supreme Court in the so-called foreign kidnaping case. It is hard to know whether Stevens used “monstrous” to suggest that the United States will now become an international monster, snatching from their own soil foreign nationals wanted for crimes in this country. Or to mean that the opinion itself was, to cite dictionary definitions, “outrageous,” “very wrong” or “absurd.”

Possibly all of the above. But Justice Stevens, joined by Justices Harry A. Blackmun and Sandra Day O’Connor, was on the losing side of a quite easy case. The Sturm und Drang over the decision, whipped up in part by a press that did not focus on the law, is unjustified.

Humberto Alvarez Machain, a citizen and resident of Mexico, was indicted in California for participating in the kidnap and murder of U.S. Drug Enforcement Administration agent Enrique Camarena. Through means arranged by the DEA, Alvarez Machain himself was kidnaped in his Guadalajara office and flown to the United States so that he could stand trial.

The question before the Supreme Court was whether Alvarez Machain had been abducted in violation of the extradition treaty between Mexico and the United States. He had won that argument in the lower courts. But those courts were wrong.

By its own terms, as Justice Stevens acknowledges, the treaty does not prohibit forcible abduction in a case like Alvarez Machain’s (or in a case in which a U.S. citizen is wanted for crimes in Mexico). Those terms were enough to decide the case.

Courts should not rewrite treaties, as the 9th Circuit Court of Appeals did and Stevens would have done in this case by implying a prohibition of prosecution when the defendant’s presence has been secured by a means other than that provided for in the treaty. Treaties are bargains negotiated by sovereign nations. Like them or not, they mean what they say, nothing more, nothing less. And if they are disliked, the proper place to lodge such a complaint is with the executive branch.

U.S. vs. Alvarez-Machain thus is a case about treaty interpretation and the separation of powers. Unfortunately, the press has not treated it that way. “U.S. Abductions Abroad Upheld,” was the headline atop the story on the decision in this newspaper. The Washington Post said that the court upheld “kidnaping,” the New York Times that the court “backs seizing foreigners for trial.” The press sometimes skips past the law to the result, misleading readers, but the law is key. The court did not approve abductions, kidnaping or seizing of foreigners for trial, only the executive’s authority to do so.

Again, it is with the executive that any complaints should be lodged, as they have been, not only this week but ever since Alvarez Machain was flown to the United States in 1990. All along, Mexico objected, both in court filings and through diplomatic channels. That was to be expected, and Mexico’s views must be taken into account by President Bush. Yet that is the point: In this or any case like it, the matter lies with the executive.

Whether the Bush Administration or any successor will frequently resort to forcible abduction is most unlikely. “It is important,” said the President in a statement first issued three years ago and reissued (but unreported) this week, “to isolate the question of . . . domestic legal authority . . . from . . . whether the President will in fact authorize the use of that authority. In any given case, the President must weigh his constitutional responsibilities for formulating and implementing both foreign policy and law enforcement policy.”

If, in almost all cases, such authority will not be used, it is also certain that such authority will not be bargained away in extradition treaties. No sovereign in its right mind would give away the discretion to act in the most unusual circumstances, as, arguably, the Alvarez Machain case presented. That is why the current talk about revising the U.S.-Mexico extradition treaty cannot be taken seriously. That would not be in the interest of the United States--or Mexico.

What that talk might achieve--and is probably intended to achieve--is even rarer resort by the United States to extra-treaty means of bringing a foreign national here to stand trial, perhaps even a decision never to do so. If that happens, it will happen as it should--by executive judgment. The court was right to leave the issue to that branch of government.