The Supreme Court’s Insult to Law-Abiding Countries : Law: By allowing the U.S. to kidnap foreign citizens in another country, the justices make a mockery of much of what we preach.

First, the United States kidnaps a Mexican doctor in his own office to face murder charges in a U.S. court. Then, it tries to deny its responsibility for the kidnaping. When that fails, it claims the right to kidnap, despite the existence of an extradition treaty with Mexico and Mexico’s strong protests. Not surprisingly, our actions have been condemned here and abroad.

Nevertheless, last week the U.S. Supreme Court, led by its chief justice, ruled, in United States vs. Humberto Alvarez-Machain, that although it may be “shocking” in its violation of basic principles of international law, kidnaping foreign citizens in their own country is a legally acceptable way to get them to face charges in a U.S. court for violating American law.

The moral shabbiness of both our nation’s conduct and the court’s approval is matched by the intellectual poverty of Chief Justice William H. Rehnquist’s justification. According to him, kidnaping is a permissible way to bring a foreign citizen before a U.S. court because the extradition treaty with Mexico does not explicitly say “no kidnaping allowed.”

Rehnquist’s opinion ignores century-old precedents, international-law principles and the nature and purpose of extradition treaties, in general, and the one with Mexico, in particular. It also makes a mockery, particularly in Latin America, of much of what we preach.

More than 100 years ago, the Supreme Court, in United States vs. Rauscher (1886), insisted that if an extradition treaty set out a procedure whereby the United States could apprehend someone in another country for a violation of U.S. law, we had to follow that procedure and could not rely on extra-treaty methods, even though the treaty did not expressly bar such methods.

Kidnaping another country’s citizens has long been considered a gross violation of international law and of proper behavior among civilized nations. We fought a war in 1812 with Great Britain over this. As the legal adviser to the Reagan State Department asked a few years ago, “How would we feel if some foreign nation . . . seized some terrorist suspect in New York City, or Boston, or Philadelphia . . . because we refused, through the normal channels of international, legal communications, to extradite the individual?”

Unhappily, however, such kidnapings have not been uncommon. To prevent them and to encourage peaceful international cooperation, extradition treaties began to spread after World War I. They have since become part of the effort to replace the law of the jungle and self-help--both all-too common in relations among nations--with the rule of law and international cooperation. The United States is a signatory to 102 such treaties, none of which, incidentally, expressly bar kidnaping. This effort is seriously compromised when countries enter into these treaties with secret reservations of the right to kidnap the other country’s citizens, particularly when the kidnaping country is the acknowledged leader of the Western World.

Our treaty with Mexico is an especially unlikely candidate for such an evasive reading. It is a comprehensive document, with detailed and exclusive procedures for delivering up criminal suspects from one country to the other. The idea that the two nations silently intended that either could ignore these provisions and use extra-treaty self-help measures over the objections of the other, just because those measure were not specifically banned, is ludicrous. Why put together a detailed agreement if either party can ignore the agreement when it is unhappy with the way the agreement works?

Latin America is a particularly unhappy place in which to insult another nation this way. Resentment of U.S. imperialism and highhandedness is still widespread. The Bush Administration’s claim that it has the right to kidnap foreign citizens, coupled with the court’s decision, have greatly embarrassed Mexican President Carlos Salinas de Gortari, who has been severely criticized by Mexicans for cooperating too closely with the United States.

The court also tried to justify its ruling by citing cases involving private kidnaping. But there is all the difference in the world, particularly where treaties among nations are concerned, between actions by a nation outside the treaty, over the objections of the other nation, and an action by a private citizen. The private person is not a party to the treaty; his actions do not call into question the other nation’s integrity, and they do not threaten the always delicate fabric of international trust. The same difference is reflected in the court’s longstanding rule that evidence seized illegally by private officials may be used in court, but not that legally seized by government agents.

The court’s literalistic approach to law is not unusual. It has become the norm in Supreme Court interpretation since the justices appointed by Ronald Reagan and George Bush have taken over. Justice Antonin Scalia has preached for years that in construing statutes and other legislative acts, the intent of the legislators is irrelevant. And though the current Supreme Court majority has never formally accepted the Scalia position, it has quite consistently followed it in practice.

This signals a new judicial activism, aimed at Congress and against individual rights. So intense and extreme has this right-wing activism become that a justice as conservative as Sandra Day O’Connor has joined the dissents of such unaccustomed bedfellows as Harry Blackmun and John Paul Stevens; the Alvarez-Machain case is but the latest example.

Murder and kidnaping, the crimes for which Dr. Alvarez is being prosecuted, are terrible. But for a nation that aspires to being the leader of the free world and continually preaches about the need for a rule of law, it is especially important to recall what Justice Louis Brandeis taught some 65 years ago: “If the government becomes a law-breaker . . . it invites every man to become a law unto himself.” That teaching would seem to be particularly important in international relations. Unfortunately, as the Alvarez case shows, it seems to be especially hard lesson for our Court and country to learn.