The Controversial US Legal Doctrine Being Used to Justify The Abduction of Nicolás Maduro

A sketchy precedent upheld by the US Supreme Court

(By Wilfredor — Own work, CC0, https://commons.wikimedia.org/w/index.php?curid=28319366)

News wires lit up this morning after a bold operation carried out by the United States against Venezuela. In the early morning hours, US special forces flew into the capital of Caracas and abducted the Venezuelan president. Nicolás Maduro and his wife were both “flown out of the country” to face charges stemming from a 2020 indictment on drug trafficking charges.

The move has left many people scratching their heads and wondering is this legal? How can a nation violate the sovereignty of another country and, essentially, kidnap a head of state? Given the circumstances of his capture, how can Maduro stand trial in an American court? Where’s the jurisdiction and legal authority? Members of Congress and other foreign leaders are already raising these questions.

The answer lies in a little-known legal doctrine known as the Ker–Frisbie doctrine.

Ker–Frisbie states that American courts have legal jurisdiction over defendants even if their capture was conducted unlawfully. This means that the lead-up to an appearance in court doesn’t matter, even if it is deemed illegal.

The policy stems from two court cases: Ker v. Illinois and Frisbie v. Collins.

In 1886, a warrant officer forcibly kidnapped a suspect in Peru and extradited him to the United States without authority. He had been instructed to serve the warrant with cooperation from local lawful authorities. That never happened. Once in the United States, Ker claimed that his due process rights had been violated.

The Supreme Court swatted down his concerns, writing:

Such [a] forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court.

This set the precedent for this kind of move in the future.

In 1952, another case arose within the United States. A defendant wanted in Michigan was “abducted” in Chicago, Illinois, and brought back to face trial. Frisbie, like Ker before, argued that they had been kidnapped and that the arrest was invalid. The Supreme Court referenced Ker v. Illinois and said that his detention could not be overridden by kidnapping or due process laws.

Thus, the Ker-Frisbie doctrine was born. American courts do not care much for how you appear as long as you are made to appear before the bench.

It is this doctrine that is now being used to justify the capture of Nicolás Maduro and his wife. It doesn’t matter how he was abducted as long as he appears in an American courtroom to face charges.

It is unclear whether this legal justification will hold up to scrutiny. The scope of this operation goes far beyond those in the previous cases. The operation in Venezuela was a military one, even as the government positions itself to claim that it was a law enforcement action. Military action of this type needs approval from Congress, which was not secured in this case.

Under international law, the move is unquestionably illegal. (Though, Great Powers never care much for international law when it doesn’t suit them.)

The United States also has a precedent in this realm after arresting the Panamanian dictator Manuel Noriega in January 1990. American troops surrounded the Vatican embassy in Panama and arrested Noriega on similar charges.

The military operations in Venezuela do echo those taken against Panama in 1989 and 1990. Those operations remain controversial to this day (though many will argue that Panama is much better off now than it was under the Noriega regime).

This remains an evolving and developing story.