COLUMN RIGHT : Undeserved Sanctuary for Crime : A judge harumphs, and a prudent gambit to gain custody of a Mexican national is voided.

Last month, U.S. District Judge Edward Rafeedie ordered the federal government to follow the genteel Queensberry rules in fighting international drug trafficking and terrorism. In the case, U.S. vs. Rafael Caro-Quintero, he harumphed against a prudent gambit by the Drug Enforcement Administration to to seek custody of a Mexican national indicted here for complicity in the torture and murder of a Drug Enforcement Administration agent in Mexico. If Rafeedie’s muddle-headed ruling survives appeal, a legal sanctuary abroad will have been erected for despicable crimes.

In 1985, DEA agent Enrique Camarena was kidnaped, tortured and murdered by a Mexican drug trafficking ring. Dr. Humberto Alvarez Machain and a score of others were indicted by a federal grand jury on charges of collaborating. Representatives of the Mexican Federal Judicial Police offered to deliver Alvarez to the United States for trial if a $50,000 douceur was paid in advance, but the DEA demurred.

A DEA agent had simultaneously offered a handful of his Mexican contacts a $50,000 reward if Alvarez were delivered to the custody of the United States. The monetary enticement brought about the abduction of Alvarez. The Mexican government protested the kidnaping to the State Department three times, on the grounds that it circumvented an extradition treaty between Mexico and the United States. Rafeedie took notice of the protests, ruled that the treaty violation deprived the United States of jurisdiction to try Alvarez and ordered him repatriated.

But the Supreme Court declared in Frisbie vs. Collins (1952) that it “has never departed from the rule . . . that the power of a court to try a person for a crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of forcible abduction. . . . There is nothing in the Constitution that requires a court to permit a guilty person to escape justice because he was brought to trial against his will.”

Thus, as Rafeedie conceded, if no extradition treaty had existed, Alvarez’s jurisdictional claim would have failed. Rafeedie’s conclusion that a treaty violation frustrates jurisdiction perversely discourages extradition arrangements because they add to the defendants’ legal arsenal to circumvent justice.

Extradition treaties are constructive adjuncts to international law enforcement, and are ordinarily preferable to abduction or other stratagems for gaining custody of a defendant. The latter, however, are sometimes imperative if the extradition process has been corrupted, or if the nation of sanctuary would resist extradition to escape political embarrassment. The “anti-Yankee” political culture and government venality pervasive in Latin America thus make U.S. reliance on extradition to obtain jurisdiction over fugitives foolish.

Rafeedie’s ruling usurped authority to decide a foreign-policy question fit only for President Bush. International obligations stemming from extradition treaties confer rights on nations, not individuals. The Mexican government formally protested Alvarez’s abduction to the State Department, not to Rafeedie. The department, as the foreign-policy voice of the President, denied Mexico’s demands for Alvarez’s return.

Bush might have believed that Mexico’s demands reflected insincere political posturing for the benefit of a Mexican constituency, or that Mexican retaliation was unlikely because its failure to cooperate with the United States in fighting drug trafficking would trigger losses in American trade and economic benefits. In any event, the U.S. response to accusations of international law transgressions turns on quintessential political considerations alien to the understanding, expertise and responsibilities of federal judges.

Rafeedie also errantly held the DEA responsible for Alvarez’s abduction by private individuals solely because of its reward offer. That responsibility was the linchpin of his finding of an extradition-treaty violation. But a financial inducement to private conduct is no justification for imputing government legal responsibility. The United States offers rewards of up to $500,000 to persons furnishing information leading to the arrest of terrorists, but it is not legally answerable for private searches, seizures or surveillances occasioned by that allurement.

Rafeedie’s decree that the United States play exclusively by Queensberry rules in attacking international criminals has a place in Utopia, but not in a world that must cope with unsavory criminal acts.