US says it has right to kidnap
by David Leppard
December 2, 2007
America has told Britain that it can "kidnap"
British citizens if they are wanted for crimes in the United States.
A senior lawyer for the American government
has told the Court of Appeal in London that kidnapping foreign
citizens is permissible under American law because the US Supreme
Court has sanctioned it.
The admission will alarm the British business
community after the case of the so-called NatWest Three, bankers
who were extradited to America on fraud charges. More than a dozen
other British executives, including senior managers at British
Airways and BAE Systems, are under investigation by the US authorities
and could face criminal charges in America.
Until now it was commonly assumed that
US law permitted kidnapping only in the "extraordinary rendition"
of terrorist suspects.
The American government has for the first
time made it clear in a British court that the law applies to
anyone, British or otherwise, suspected of a crime by Washington.
Legal experts confirmed this weekend that
America viewed extradition as just one way of getting foreign
suspects back to face trial. Rendition, or kidnapping, dates back
to 19th-century bounty hunting and Washington believes it is still
The US government's view emerged during
a hearing involving Stanley Tollman, a former director of Chelsea
football club and a friend of Baroness Thatcher, and his wife
The Tollmans, who control the Red Carnation
hotel group and are resident in London, are wanted in America
for bank fraud and tax evasion. They have been fighting extradition
through the British courts.
During a hearing last month Lord Justice
Moses, one of the Court of Appeal judges, asked Alun Jones QC,
representing the US government, about its treatment of Gavin,
Tollman's nephew. Gavin Tollman was the subject of an attempted
abduction during a visit to Canada in 2005.
Jones replied that it was acceptable under
American law to kidnap people if they were wanted for offences
in America. "The United States does have a view about procuring
people to its own shores which is not shared," he said.
He said that if a person was kidnapped
by the US authorities in another country and was brought back
to face charges in America, no US court could rule that the abduction
was illegal and free him: "If you kidnap a person outside
the United States and you bring him there, the court has no jurisdiction
to refuse - it goes back to bounty hunting days in the 1860s."
Mr Justice Ouseley, a second judge, challenged
Jones to be "honest about [his] position".
Jones replied: "That is United States
He cited the case of Humberto Alvarez
Machain, a suspect who was abducted by the US government at his
medical office in Guadalajara, Mexico, in 1990. He was flown by
Drug Enforcement Administration agents to Texas for criminal prosecution.
Although there was an extradition treaty
in place between America and Mexico at the time - as there currently
is between the United States and Britain - the Supreme Court ruled
in 1992 that the Mexican had no legal remedy because of his abduction.
In 2005, Gavin Tollman, the head of Trafalgar
Tours, a holiday company, had arrived in Toronto by plane when
he was arrested by Canadian immigration authorities.
An American prosecutor, who had tried
and failed to extradite him from Britain, persuaded Canadian officials
to detain him. He wanted the Canadians to drive Tollman to the
border to be handed over. Tollman was escorted in handcuffs from
the aircraft in Toronto, taken to prison and held for 10 days.
A Canadian judge ordered his release,
ruling that the US Justice Department had set a "sinister
trap" and wrongly bypassed extradition rules. Tollman returned
Legal sources said that under traditional
American justice, rendition meant capturing wanted people abroad
and bringing them to the United States. The term "extraordinary
rendition" was coined in the 1990s for the kidnapping of
terror suspects from one foreign country to another for interrogation.
There was concern this weekend from Patrick
Mercer, the Tory MP, who said: "The very idea of kidnapping
is repugnant to us and we must handle these cases with extreme
caution and a thorough understanding of the implications in American
Shami Chakrabarti, director of the human
rights group Liberty, said: "This law may date back to bounty
hunting days, but they should sort it out if they claim to be
a civilised nation."
The US Justice Department declined to