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Last-Modified: 1999/05/28

Session No 2

25 Nissan 5721 (11 April 1961)

Presiding Judge:  I declare the second session open.

Mr. Hausner, please continue with your argument.

Attorney General:  With the Court's permission. I was
dealing with the question of an American decision in regard
to the relevancy of bringing a man to trial and the manner
of so doing. In regard to the issue of competence, I shall
quote a series of judgments of the Supreme Court of the
United States and also of Federal Courts of the United
States, and, as I have already said, their importance is
great since these courts consider these matters according to
the principles of public international law as part of the
national law of the United States. At the outset I should
like to quote not actually the first decision that was given
in the series - I shall return to that in the course of my
argument - but to a judgment which illustrates and answers
most of the questions which arise here. I am referring to
case of Pettibone versus Nichols 1906, 51 Lawyers' Edition
on page 148. I shall first quote the facts of the case as
they are set forth on page 151:

     "On the 15th of March, 1906 , after the final judgment
     in the Supreme Court of Idaho, Pettibone made
     application to the Circuit Court of the United States,
     sitting in Idaho, for a writ of habeas corpus alleging
     that he was restrained of his liberty by the sheriff of
     Canyon county, in violation of the Constitution and
     laws of the United States. As was done in the Supreme
     Court of Idaho, the accused set out numerous facts and
     circumstances which, he contended, showed that his
     personal presence in Idaho was secured by fraud and
     connivance on the part of the executive officers and
     agents of both Idaho and Colorado, in violation of the
     constitutional and statutory provisions regulating to
     fugitives from justice. Consequently, it was argued,
     the court in Idaho did not acquire jurisdiction over
     his person."

On page 154:

     "As the petitioner is within the jurisdiction of Idaho,
     and is held by its authorities for trial, are the
     particular methods by which he was brought within her
     limits at all material in the proceeding by habeas
     corpus? It is contended by the State that this question
     was determined in its favour by the decisions of this
     court. This is controverted by the petitioner, and we
     must therefore, and particularly because of the unusual
     character of this case and the importance of the
     questions involved, see what this court has therefore

There follows an analysis of the authorities, to which I
shall return later. And on page 155, it is said in
connection with the well-known judgment of Ker versus

     "If Ker, by virtue of the treaty with Peru, and because
     of his forcible and illegal abduction from that
     country, did not acquire an exemption from the criminal
     process of the courts of Illinois, whose laws he had
     violated, it is difficult to see how Pettibone had
     acquired, by virtue of the Constitution and laws of the
     United States, an exemption from prosecution by the
     state of Idaho, which has custody of his person."

As to the principles of the decision, I quote from page 157:

     "These principles determine the present case and
     require an affirmance of the judgment of the circuit
     court. It is true, the decision in the Mahon case was
     by a divided court, but its authority is nonetheless
     controlling. The principle on which it rests has been
     several times recognized and reaffirmed by this court,
     and is no longer to be questioned.   It was held in
     Cook v. Hart, 146 U.S. 183, 192, 36 L. ed. 934, 939, 13
     Sup. Ct. Rep. 40, that the cases of Ker v. Illinois and
     Mahon v. Justice established these propositions: 1.
     That this court will not interfere to relieve persons
     who have been arrested and taken by violence from the
     territory of one state to that of another, where they
     are held under process legally issued from the courts
     of the latter state.  2. That the question of the
     applicability of this doctrine to a particular case is
     as much within the province of a state court, as a
     question of common law or of the law of nations, as it
     is of the courts of the United States; in Lascelles v.
     Georgia, 148 U.S. 537, 543, 37 L. ed. 549, 551, 13 Sup.
     Ct. Rep. 687, that it was settled in the Ker and Mahon
     Cases that '...Except in the case of a fugitive
     surrendered by a foreign government, there is nothing
     in the Constitution, treaties, laws of the United
     States, which exempts an offender, brought before the
     courts of a state for an offense against its laws, from
     trial and punishment, even though brought from another
     state by unlawful violence, or by abuse of legal
     process' and in Adams v. New York, 192 U.S. 585, 596,
     48 L. ed. 575, 579, 24 Sup. Ct. Rep. 372 ( the same
     cases being referred to ) that '...If a person is
     brought within the jurisdiction of one state from
     another, or from a foreign country, by the unlawful use
     of force, which would render the officer liable to a
     civil action, or in a criminal proceeding, because of
     the forcible abduction, such fact would not prevent the
     trial of the person thus abducted in the state wherein
     he had committed an offense."

Presiding Judge:  By which Court was this judgment given?

Attorney General:  The United States Supreme Court, Your
Honour. I read from page 158:

     "The act complained of does not relate to the restraint
     from which the petitioner seeks to be relieved but to
     the means by which he was brought within the
     jurisdiction of the court under whose process he is
     held. It is settled that a party is not excused from
     answering to the State whose laws he has violated,
     because violence has been done to him in bringing him
     within the State. Moreover if any injury was done in
     this case in imposing the petitioner upon the State of
     Washington without grounds, therefore, the injury was
     not to the petitioner but to the State whose
     jurisdiction was imposed upon by what was done.
     "It is said that the present case is distinguishable
     from the Mahon case in that the illegal abduction
     complained of in the latter was by persons who neither
     acted nor assumed to act under the authority of the
     state into the custody of whose authorities they
     delivered Mahon; whereas, in this case, it is alleged
     that Idaho secured the presence of Pettibone within its
     limits through a conspiracy on the part of its governor
     and other officers. This difference in the cases is
     not, we think, of any consequence as to the principle
     involved; for the question now is  - and such was the
     fundamental question in Mahon's case - whether a
     circuit court of the United States when asked, upon
     habeas corpus, to discharge a person held in actual
     custody by a state for trial in one of its courts under
     an indictment charging a crime against its laws, can
     properly take into account the methods whereby the
     state obtained such custody. That custody was
     determined in the negative in the Ker and Mahon cases.
     It was there adjudged that in such a case neither the
     Constitution nor laws of the United States entitled the
     person so held to be discharged from custody and
     allowed to depart from the state. If, as suggested, the
     application of these principles may be attended by
     mischievous consequences, involving the personal safety
     of individuals within the limits of the respective
     states, the remedy is with the lawmaking department of
     the government. Congress has long been informed by
     judicial decisions as to the state of the law upon this
     general subject.

     "In this connection it may be well to say that we have
     not overlooked the allegation that the governor and
     other officers of Idaho well knew at the time that the
     requisition was made upon the governor of Colorado,
     that Pettibone was not in Idaho on December 30th, 1905,
     nor at any time near that date, and had the purpose in
     all they did to evade the constitutional and statutory
     provisions relating to fugitives from justice. To say
     nothing of the impropriety of any such facts being made
     the subject of judicial inquiry in a Federal Court, the
     issue thus attempted to be presented was wholly
     immaterial. Even were it conceded, for the purposes of
     this case, that the governor of Idaho wrongfully issued
     his requisition, and that the governor of Colorado
     erred in honoring it, and in issuing his warrant of
     arrest, the vital fact remains that Pettibone is held
     by Idaho in actual custody for trial under an
     indictment charging him with crime against its laws,
     and he seeks the aid of the circuit court to relieve
     him from custody, so that he may leave that state and
     thereby defeat the prosecution against him without a
     trial. In the present case it is not necessary to go
     behind the indictment and to enquire as to how it
     happened that he came within reach of the process of
     the Idaho court in which the indictment is pending. And
     any investigation as to the motives which induced the
     action taken by the governors of Idaho and Colorado
     would, as already suggested, be improper as well as
     irrelevant to the real question to be now determined."

From this we learn two things: firstly that it does not make
any difference how a person is brought within the area of
jurisdiction; secondly that it does not make any difference
whether this was done by private individuals or by an
official arm of the government. And before I go back to the
series of authorities, may I be permitted to quote a
decision of the Federal Court of Appeals: Hatfield versus
Warden of State Prison  Michigan, 1950, (88 Federal
Supplement, 690). I am sorry. That was the District Court _
the United States District Court, Michigan. The facts appear
on page 691.

     "On February 10, 1950, Charles D. Hatfield filed herein
     his petition requesting the issuance of a writ of
     habeas corpus to inquire into the legality of his
     detention by the Warden of the State Prison of Southern
     Michigan under judgment of the Circuit Court for the
     Country of St. Joseph, upon conviction of a murder
     committed in said County. An examination of this
     petition discloses that petitioner's sole complaint is
     one which is currently popular in petitions for habeas
     corpus emanating from the State Prison of Southern
     Michigan, namely, that instead of being legally
     extradited from the State of Texas to the State of
     Michigan to answer such charges, he was in effect,
     kidnapped and transported against his will from Texas
     to Michigan by Michigan State Police officers."

And the rule is set out on page 692:

     "It is well settled that where a person accused of a
     crime is found within the territorial jurisdiction
     wherein he is so charged and is held under process
     legally issued from a court of that jurisdiction,
     neither the jurisdiction of the court nor the right to
     put him on trial for the offense charged is impaired by
     the manner in which he was brought from another
     jurisdiction, whether by kidnapping, illegal arrest,
     abduction or irregular extradition proceedings; and
     Federal statutory or constitutional provisions are not
     violated by reasons of illegal means adopted in
     bringing the accused to the jurisdiction where he is
     then held for proper process, and specifically the
     trial of a person brought into a state by forceful
     abduction is not a violation of the provisions of the
     Federal Constitution forbidding the deprivation of
     life, liberty, or property without due process of law."

I ask you not to regard my argument as an acknowledgement
that in our case there took place what Defence Counsel
maintains to have occurred. My argument is that it does not
make any difference; I contend that it does not add or
subtract anything whether the persons who caught, arrested
and transferred Adolf Eichmann to Israel were private
individuals or not. And seeing that this does not affect the
issue, the Court is not called upon to enter into an
investigation of the question.

And now I pass to the series of decisions which were given
on that subject. The first and the most important of them is
Ker versus Illinois, 1886, Lawyers' Edition 30, at page 421.
These were the facts. Ker was accused of theft in the State
of Illinois. His extradition was requested from the State of
Peru in view of the criminal act which he had committed. The
officer of the United States Government who was charged with
the implementation of the extradition travelled to Lima, the
capital of Peru, and instead of bringing about the
extradition by legal and normal methods, arrested Ker, and
brought him to the State of California. The Californian
authorities put him under arrest and transferred him to a
court in Illinois. I shall not read the whole judgment since
this court has already heard it. The decision is found at
the end of page 423 and on page 424. The conclusion of the
judgment is important:

     "The question of how far his forcible seizure in
     another country, and transfer by violence, force or
     fraud to this country, could be made available to
     resist trial in the state court, for the offence now
     charged upon him is one which we do not feel called
     upon to decide, for in that transaction we do not see
     that the Constitution, or laws, or treaties of the
     United States guarantee him any protection."   If I may
     break off for a moment, if there had been a conflict
     between Ker's rights according to United States law and
     the claim of the State of Illinois to try him, then the
     Supreme Court would have been obliged to enter into the
     merits of the question and would have examined which of
     the two was right. But the United States Supreme Court
     says: It is not necessary to go into this question and
     it is not necessary to take any decision at all, in
     view of the fact that the legal right of Ker was not
     violated by the fact that he was brought, albeit
     forcibly, within the jurisdiction of the Court in

And now I resume reading from the judgment:

     " However this may be, the decision of that question is
     as much within the province of the state court as a
     question of common law, or of the law of nations, of
     which that court is bound to take notice, as it is of
     the courts of the United States. And though we might or
     might not differ with the Illinois court on that
     subject, it is one in which we have no right to review
     their decision.
     "It must be remembered that this view of the subject
     does not leave the prisoner or the Government of Peru
     without remedy for his unauthorized seizure within its

That is to say, the State of Peru could have complained
through international or national political channels, but it
is not the business of the accused to argue: My arrest
violated the sovereignty of the State of Peru.

In the matter of ex parte Johnson, 1897, Lawyers' Edition
Vol. 42, page 103,the question of the legality of a judgment
arose which had been given against a person who had been
arrested illegally. The decision is found on page 105.

     "Indeed, there are many authorities which go to the
     extent of holding that, in criminal cases, 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
     offense and presents no valid objection to his trial in
     such court."

And here follows a list of authorities:

     "... Although it has been frequently held that if a
     defendant in a civil case be brought within the process
     of the court by a trick or device, the service will be
     set aside and he will be discharged from custody...The
     law will not permit a person to be kidnapped or decoyed
     within the jurisdiction for the purpose of being
     compelled to answer to a mere private claim, but in
     criminal cases the interests of the public override
     that which is, after all, a mere privilege from

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