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Obama’s Next Test

What will he do about the released Lockerbie bomber?

Seth Lipsky
September 02, 2009
Al-Megrahi arriving in Tripoli after his release.(AFP/Getty Images)
Al-Megrahi arriving in Tripoli after his release.(AFP/Getty Images)

One of the questions at least some of us are wondering about as President Obama returns from vacation is what he is going to do about Abdelbaset Ali al-Megrahi. He is the Libyan agent who was convicted of bringing down Pan Am Flight 103 in 1988 only to be—in the face of American protests—freed by Scotland and returned home to celebrate with his countrymen. For our country to be so mocked by the British, not to mention the Libyans, is no small thing, and the question is whether Obama is going to let it pass.

It is a moment when Obama might want to read a short opinion handed down in 1992 by the Supreme Court in a case called United States v. Alvarez-Machain. It involves a citizen of Mexico, Humberto Alvarez Machain, who was indicted for participating in the kidnapping and murder of a special agent of the United States Drug Enforcement Administration, Enrique Camarena Salazar, and a pilot working with him. Alvarez, a medical doctor, allegedly aided in that crime by, as former Supreme Court Chief Justice William Rehnquist put it, “prolonging agent Camarena’s life so that others could further torture and interrogate him.”

On April 2, 1990, Alvarez was, Rehnquist wrote, “forcibly kidnapped from his medical office in Guadalajara, Mexico, to be flown by private plane to El Paso, Texas, where he was arrested by DEA officials.” A United States district court, Rehnquist noted, “concluded that DEA agents were responsible for respondent’s abduction, although they were not personally involved in it.” Alvarez then tried to dismiss the indictment, claiming, as Rehnquist characterized it, “that his abduction constituted outrageous governmental conduct.”

That argument was rejected by the district court, which nevertheless reckoned that his abduction violated America’s extradition treaty with Mexico. It ordered that Alvarez be sent back to Mexico. The riders of the U.S. Court of Appeals for the 9th Circuit turned out to be of a similarly delicate mind. They may have been moved by letters of protest from the Mexican government to the American government. But when the matter got to the Supreme Court, it turned out that the justices were made of sterner stuff.

One of the cases Rehnquist cited was United States v. Rauscher, in which the court prohibited the prosecution of a defendant brought to America from England for a crime not covered in the extradition treaty between the two countries. It decided that Rauscher could be tried only for one of the offenses described in the treaty. It seems that once an extradition treaty is followed, the government’s hands are bound by the terms of the treaty.

But Rehnquist then cited another case, Ker v. Illinois, involving a thief named Frederick Ker, who had been convicted in an Illinois court for larceny but was hiding out in Peru. Ker’s “presence before the court,” as Rehnquist so delicately put it, “was procured by means of forcible abduction from Peru.” Precisely because Ker wasn’t brought back via an extradition process, the court decided, Ker’s claims to rights under extradition law could be, and were, rejected.

The court later cited “Ker” in upholding the right of Michigan to try a man named Shirley Collins, whom it had allegedly seized, “blackjacked,” and brought back to the Wolverine state. “This Court,” wrote Justice Hugo Black, “has never departed from the rule announced in [“Ker”] that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’”

Rehnquist and most of his colleagues took such a view in the Mexican case. They rejected claims that the mere existence of an extradition treaty ruled out the use of other means than extradition to bring a fugitive to justice here. Rehnquist went through a scholarly explication. He noted that Alvarez and others who filed briefs in his case “may be correct that respondent’s abduction was ‘shocking,’” as it was put in oral arguments. But he concluded that the fact of Alvarez’s “forcible abduction does not therefore prohibit his trial in a court in the United States for violations of the criminal laws of the United States.”

Charges against Alvarez here were eventually dismissed for lack of evidence, and he was sent home. But his case suggests that if Obama can, without breaking other Americans laws, find a way to use covert means to bring al-Megrahi to America and to put him on trial here, the Supreme Court itself is unlikely to be over-punctilious about the fact that a formal extradition process wasn’t used. So it becomes a test of how serious the president, his secretary of state, and the director of the FBI were when they expressed their outrage over Scotland’s decision to let the killer go home, ostensibly on “humanitarian” grounds.

If Obama were to act, no doubt the Libyans would be fit to be tied, as would, for that matter, the British and the Scots. But the British and the Scots have been thoroughly discredited in this case, as has the United Nations. So much so that bringing al-Megrahi to a prison here to serve out the remainder of his term would support the cause of justice—and serve notice on the world that America will not be trifled with by foreign courts in cases in which acts of war and murder have been committed against our citizens and our carriers.

And imagine what wonders such an action would do for Obama’s standing in the polls. One of his predecessors, Ronald Reagan, discovered this when he held the air traffic controllers to account. They are not comparable to al-Megrahi by any means, but Reagan signaled his view that the law is the law, and it needs to be enforced and to be seen as being enforced. Obama is apparently prepared to take action even against our own intelligence agents whom he deems to have broken the law during interrogations. What would stop him from using all the precedent the Supreme Court has provided him in pursuing a terrorist who killed 270 persons in one of the most infamous crimes in history?

Seth Lipsky, formerly editor of the English-language edition of the Forward, is founding editor of The New York Sun.

Seth Lipsky, formerly editor of the English-language edition of the Forward, is founding editor of The New York Sun.