Could Megrahi have been retried in the United States?

[What follows is excerpted from an editorial in today's edition of The New York Sun headlined Julian Assange's Jeopardy:]

What comes next for Julian Assange after his years holed up in Ecuador’s embassy at London? Glenn Greenwald has a report on the Intercept suggesting that eviction from his current sanctuary is imminent and that if he leaves, Wikileaks’ founder could face a year or more in prison at Britain as he maneuvers to avoid extradition to America. It strikes us as a thorough report, save for the omission of any mention of the case known as United States v Alvarez-Machain.

That case, decided in 1992, could prove to be a precedent were America simply to seize Mr. Assange and bring him here without resort to any extradition treaty. The first of the several times we've written about Alvarez-Machain was in connection with the Libyan terrorist Abdelbasset al-Megrahi, who’d been released early from the prison sentence he was serving for murder in the bombing in 1988 of a Pan American clipper, Maid of the Seas, in which 270 persons perished over Lockerbie, Scotland.

Al-Megrahi, suffering from cancer, was let out of prison so he could go home to live out his remaining days in Libya. It struck us that President Obama could have sent agents to seize him and bring him to America for trial. That’s because of the way the courts handled Humberto Alvarez-Machain, a Mexican physician who allegedly participated in the murders of an American drug enforcement agent, Enrique Camarena Salazar, and a DEA pilot.

Dr Alvarez-Machain’s role in the crime, the DEA believed, was, as Chief Justice William Rehnquist later put it, to have “participated in the murder by prolonging Agent Camarena’s life so that others could further torture and interrogate him.” So the doctor was snatched in Mexico and brought to America in a small, fast plane and arrested when it landed. This infuriated Mexico, not to mention Dr Alvarez-Machain.

When it got to the Supreme Court, though, the justices cast aside the objections. It noted that the Supreme Court had once blocked the prosecution of a defendant brought to America from England for a crime not covered by our extradition treaty with Britain. Its reasoning, though, was simply that once the United States had begun proceedings under the extradition treaty, it was obligated to stick to its terms.

More relevant to Dr Alvarez-Machain, the justices decided, was an 1886 case in which a thief who’d fled to Peru was brought back here by what the court called the “forcible abduction” by a Pinkerton agent. The court allowed proceedings against the thief — it rejected his claims to rights under the extradition law — precisely because the extradition law had been skirted. Though Dr Alavarez-Machain was eventually acquitted, the precedent can’t bode well for Mr. Assange.

[RB: The possibility that Mr Megrahi might be kidnapped or "rendered" from Libya after the fall of the Gaddafi regime and put on trial in the United States was raised by various commentators in 2011. My view was that the courts of the United States were barred, under American law, from accepting any such case. Here is something that I wrote at the time:]

In the light of suggestions that have been made over the past few months by American officials and commentators that the United States might wish to have Abdelbaset Megrahi handed over to the United States for retrial in America, it is perhaps worthwhile to consider some of the legal problems that would be faced in bringing this about.

As I said in a blog post on 6 March 2011:

"The United States Government, along with that of the United Kingdom, proposed the UN Security Council resolutions that set up the Lockerbie trial at Camp Zeist. Both governments thereby undertook internationally binding obligations to comply with the legal processes thus set in motion. The United States cannot lawfully renounce those obligations either unilaterally or in conjunction with whatever new government it chooses to recognise in Libya. To have Abdelbaset Megrahi lawfully handed over to the US would require a further UN Security Council resolution. The United States, as a permanent member of the Security Council could, of course, propose such a resolution. But would the other members support it? The US could also, naturally, simply ignore international legality (as it did, with the UK's supine support, in launching the invasion of Iraq) and seize Megrahi by force (with or without the connivance of a new Libyan regime)." 

Furthermore, the Constitution of the United States, provides (art VI, clause 2): "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land". This means that the binding international obligation entered into by the United States in respect of the Lockerbie trial precludes any US court from trying Megrahi since that would be a breach of the international agreement regarding Lockerbie jurisdiction which the US itself co-sponsored. 

Moreover, during the Camp Zeist trial, US government lawyers sat amongst the prosecutors and when their presence was questioned the Crown Office responded that the Lord Advocate could select whomsoever he chose to form part of the prosecution team. It can be strongly argued that this active participation by United States officials, as part of the prosecution team, in a trial which the US co-sponsored, personally bars (estops) the US from instituting its own national criminal proceedings.

As mentioned above, the US could sponsor a new UN Security Council resolution permitting it to retry Megrahi. But is there any realistic prospect of such a resolution being passed? The United States could also seek to pass internal US legislation permitting a retrial. But, in the absence of a UN Security Council resolution amending the existing ones, would not any such legislation be liable to be struck down under art VI clause 2 of the Constitution?