U.S. held to act illegally in arrest of man in Mexico OAS panel assails high court ruling


WASHINGTON -- A committee of the Organization of American States (OAS) has accused the U.S. Supreme Court of endangering the international legal order with its decision that the government may kidnap foreigners abroad to bring them to trial in the United States.

The U.S. member of the panel -- the Brazil-based Inter-American Juridical Committee -- refused to go along with that accusation, but did condemn the actual 1990 kidnapping of a Mexican citizen that led to the court's decision.

In a seven-page document not yet made public but now circulating among OAS countries, the Juridical Committee concluded without dissent that the court's June 15 ruling "contravenes the norms of international law."

The panel argued that the court was obliged to obey international law and that, even though the court had based its decision solely on U.S. law, that could not be used to excuse the U.S. from its "international obligations."

If the reasoning used by the court were taken to its "ultimate consequences," the panel concluded, "The international legal order would be irremediably destroyed."

The committee's denunciation of the court ruling, and its separate accusation of illegality by the U.S. government for the actual kidnapping that led to the court decision, is not a binding action with formal legal consequences.

It is expected, however, to be a politically embarrassing document for the U.S. government, in its diplomatic dealings not only with other American countries, but with nations elsewhere that also have condemned the court decision.

While nine members of the OAS committee who voted were unanimous in their challenge to the court and to the U.S. government, a 10th member, U.S. representative Seymour J. Rubin, refused to vote either way. He argued in a separate opinion that the panel has no authority to judge the legality of any action of the supreme court of any OAS member country.

Even so, Mr. Rubin did agree with the committee's other members that the specific kidnapping incident was a violation of international law. The U.S. government, which defended the kidnapping under U.S. law before the Supreme Court, has never conceded that the action violated international law.

The American member of the OAS panel said the forcible seizure of a Mexican doctor in his own country -- an act bitterly protested by the Mexican government -- was "a clear violation" of international law. Mr. Rubin, however, leveled that charge only at "agents" of the U.S. Drug Enforcement Administration (DEA).

The other panel members, in their formal report, used stronger language, condemning the U.S. government itself -- and not just DEA agents -- for a "grave violation" of international law.

The committee report is not scheduled to be made public for another two weeks, after OAS governments have had a chance to review it. A copy of the document, in a Spanish language version, was obtained here by The Sun.

The court's decision has been under challenge internationally since it was issued 2 1/2 months ago, with the OAS moving most decisively to condemn it. By a 6-3 vote, the court ruled that the U.S. may go abroad to kidnap foreigners without the approval of their own governments and transport them to the U.S. to face criminal charges in a U.S. court.

A major victory for the Bush administration, the ruling cleared the way for a U.S. trial of a Mexican doctor accused of aiding in the 1985 torture and murder in Mexico of a U.S. narcotics agent, Enrique Camarena Salazar. The doctor was abducted in 1990 by agents hired by the DEA.

Mexico has demanded that the U.S. government return the doctor,Humberto Alvarez Machain of Guadalajara, but authorities here have refused. The doctor is awaiting a trial in federal court in California on charges under U.S. law of kidnapping and murder of a U.S. drug agent, and of using violence to aid a drug racket.

The committee found the court violated international law in three ways:

* By upholding the government's power to make the abduction, the court "failed to recognize" an international obligation of the U.S. to return him to Mexico.

* By accepting the Bush administration's argument that such kidnappings were permissible under a U.S.-Mexico treaty dealing with fugitives, the court "failed to recognize" the obligation under international law for one country to respect the territory of another.

* And, by interpreting the U.S.-Mexico treaty as failing to bar such kidnappings, the court "ignores the norms by which treaties should be interpreted to achieve their object and end" under norms of global law.

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