Why the Second Circuit Court of Appeals chose to retreat from its Toscanino holding is unclear. The drastic nature of the remedy afforded by Toscanino to any defendant illegally abducted has been criticized as too inflexible. On the other hand, the Lujan rule allows the remedy only in the limited circumstances of egregious conduct. The problem remains to determine what remedy, if any, should be available to victims who are subjected to illegal but not outrageous governmental conduct.
The government has vigorously argued that federal narcotics law enforcement depends upon the freedom of officers to abduct suspects, particularly from South American countries that apparently do not object to the practice. Additionally, outdated extradition treaties do not provide for drug offenses so that broad adherence to Toscanino would allow de facto asylum to suspected offenders. In short, the government would excuse its own unlawful acts of kidnapping on the grounds that the end result is justifiable. However, this argument completely abnegates the moral and ethical considerations that underlie due process philosophy. In extending due process rights to alien kidnap victims, the judiciary system does no more than support and affirm the United States claim to regional and world moral leadership. Principally at the insistence of the United States, human rights provisions were included in the United Nations Charter, and the International Declaration of Human Rights was promulgated. Maintenance of a judiciary system dedicated to protection of human rights is essential to a nation whose foundation rests on respect for the individual. The remedy afforded by Toscanino to any victim of governmental illegality by way of forcible abduction redresses the wrong to the individual and should be retained.
C. Jedson Nau,
Jurisdiction--The Short-Lived Death of the Ker-Frisbie Doctrine,
9 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol9/iss1/3