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US Air Marshals flee Brazil following arrest saga

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US Air Marshals flee Brazil following arrest saga

Old 25th Oct 2010, 15:55
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skyjet:
I think getting to the moon was due mainly to german know-how.
But no small amount of US $$$ and indeed blood, sweat and tears.

Back to the question in hand. Having lived in Brazil for 2 years previously and knowing how unfriendly Brazilian jails can be (not personally... fortunately - but I did have a friend who spent 10 weeks in jail... another story entirely) and having experienced the rampant corruption within the Brazilian justice system (local police and up) and indeed government generally (another story related to a $15M simulator, money deposited in a UK bank, and the reason I spent 2 years in Brazil... just for example) - I WOULD RUN AWAY TOO, given half a chance.

And to be clear - I loved every minute I spent in Brazil and would have no problem returning. You just have to understand the rules are different.

And I'm rather surprised that anyone thinks having more than one passport is unusual - my wife has 3, my kids and myself 2 each... triple and dual-nationality. And as others have noted, it is not unusual to have a diplomatic and personal passport, should you be employed in such a role.

- GY
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Old 25th Oct 2010, 18:41
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Mugged twice in Rio.
Reported the second event, Brazilian Police excellent! Arrested three of them.

Flew with armed air marshals for nearly twenty years.

They were all in the state militia, serving police officers and specially trained.

Many stories about accidently discharging firearms including one where one accidently shot two First class passengers!

Train the crew how to deal with disruptive passengers and leave the cowboys at home!

Have seen enough brutality from Brit police!
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Old 26th Oct 2010, 05:54
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From a friend and former FAM:

THIS OCCURED IN U.S. TERRITORY, AS THE U.S. FLAG CARRIER REMAINED US TERRITORY UNTIL THE END OF THE LANDING ROLL IN BRAZIL.

IT WAS US TERRITORY FROM THE MOMENT TAKEOFF POWER WAS APPLIED.

Sorry for the shout; it's his way.

GB
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Old 26th Oct 2010, 12:18
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THIS OCCURED IN U.S. TERRITORY, AS THE U.S. FLAG CARRIER REMAINED US TERRITORY UNTIL THE END OF THE LANDING ROLL IN BRAZIL.

IT WAS US TERRITORY FROM THE MOMENT TAKEOFF POWER WAS APPLIED.
I really hope nobody thinks that is the case

Just take the recent thread about the bloke on the Virgin 744 that diverted to Gander. He was a British national, on a British aircraft that is being tried by a Canadian court!
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Old 26th Oct 2010, 13:07
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With all due respect, Article 4 refers to state interference "with an aircraft in flight". Arresting FAMs after landing does not constitute such interference.

The "take-off roll" line is straight from the scope in Article 1:

Article 1 This Convention shall apply in respect of: offences against penal law; acts which, whether or not they are offences, may or do jeopardize the safety of the aircraft or of persons or property therein or which jeopardize good order and discipline on board. Except as provided in Chapter III, this Convention shall apply in respect of offences committed or acts done by a person on board any aircraft registered in a Contracting State, while that aircraft is in flight or on the surface of the high seas or of any other area outside the territory of any State. For the purposes of this Convention, an aircraft is considered to be in flight from the moment when power is applied for the purpose of take- off until the moment when the landing run ends. This Convention shall not apply to aircraft used in military, customs or police services.
Article 3 establishes jurisdiction as belonging to the state of registration, but "does not exclude any criminal jurisdiction exercised in accordance with national law." In other words, if a state declares an act criminal irrespective of where it is committed, or specifically on aircraft, the Tokyo convention does not impede that the state exercise its jurisdiction there. So the Canadians can try someone for disrupting a London-Miami flight if their law permits it, irrespective of the Tokyo Convention.

On the other hand, Article 10 is pretty clear:

Article 10 For actions taken in accordance with this Convention, neither the aircraft commander, any other member of the crew, any passenger, the owner or operator of the aircraft, nor the person on whose behalf the flight was performed shall be held responsible in any proceeding on account of the treatment undergone by the person against whom the actions were taken.
So the Convention applies specifically in this case.
The only possible argument that could be used would be that the FAMs subjected the wife to "unreasonable restraint" (as Article 6 envisions "reasonable measures including restraint which are necessary"), and that appears to be the angle the judge was going for: treatment out of line with Article 6 means that Article 10 does not apply, and he can hold the FAMs responsible for beating his wife senseless.

In a fair court, it would be pretty difficult to make a persuasive case that the measures taken were unreasonable (even when in fact they were). The more sane line of argumentation here is that SOP for Air Marshals and their ilk in the event of being arrested overseas for actions taken while onboard is to leave the country and let the diplomats sort it out. Likewise, for the Brazilian government, allowing them to leave is a great face-saver. The judge gets to make a small stink, everyone gets a good swear at the Americans, and the whole embarassing incident is quietly dropped the next week without breaking any treaties or jailing anybody.
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Old 26th Oct 2010, 14:03
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treatment out of line with Article 6 means that Article 10 does not apply, and he can hold the FAMs responsible for beating his wife senseless.
The judge that the FAMs appeared before was NOT the husband of this idiot, loudmouthed, woman

When will people begin to understand that this guy IS NOT IMPORTANT! He is not a VIP, he's not Supreme Court, he's not the attorney general, he is simply what is known here as a Federal judge, a term that doesn't mean the same down here as it apparently does in other countries. Rio de Janeiro has around 250 Federal judges, São Paulo probably more, and every large city will have a significant number of them.

TTFN
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Old 26th Oct 2010, 14:14
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Please keep in mind a couple of facts. One is that the FAM's are sworn law enforcement officers. Second is that it is a US Federal Felony to interfere with a crew member in the performance of their duties. So if the FA requested assistance, they were obligated to act. As for leaving the woman handcuffed for 5 hours, remember she was combative to the point of biting one of the officers. She was a potential threat to the aircraft, the crew, the passengers and herself. So, the FAM's really didn't have any choice but to restrain the woman.

She got off easy. Normally when the US Marshals move prisoners, they are not only handcuffed, but also have a belly chain which the cuffs are attached to with a locked metal box over the cuffs and leg irons. And if they are really bad boys and girls, they are also strapped into a wooden chair with leather mittens over their hands and these mittens do not have a thumb. And with a plastic mask over their face and a nylon hood over their heads.
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Old 26th Oct 2010, 14:26
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"She got off easy. Normally when the US Marshals move prisoners, they are not only handcuffed, but also have a belly chain which the cuffs are attached to with a locked metal box over the cuffs and leg irons. And if they are really bad boys and girls, they are also strapped into a wooden chair with leather mittens over their hands and these mittens do not have a thumb. And with a plastic mask over their face and a nylon hood over their heads."

Hannibal Lecter...?
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Old 26th Oct 2010, 14:51
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Or Guantanamo...
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Old 27th Oct 2010, 00:22
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Original story:
During the flight, a female passenger who appeared to be intoxicated tried to serve herself drinks by going to the plane's galley, one source said. The plane's crew asked air marshals to intervene, and two marshals approached the woman, who began struggling with them.


Rick1128 take on this incident:
So, the FAM's really didn't have any choice but to restrain the woman.


And yet on the Virgin Atlantic flight the crew were able to handle the drunken 44 year old male without assistance. Just makes you wonder if the FAMs are the solution or the problem.
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Old 27th Oct 2010, 05:37
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The answer is simple, what we should do is dress the FAM's in the carriers uniform, and then get them to serve the drinks, so they can determine who has had enough, who needs more G&T and who should be handcuffed for 5 hours! On another note, this women more than likely had a few in the lounge before departure, and then a few more on the plane, if she was heading down the wrong road, stop serving her drinks, water it down or put nothing in the coke or Tonic or what ever. AND if we put the FAM's in the ladys uniforms, I hope they shave there legs

P
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Old 27th Oct 2010, 14:56
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Jabiman, neither of us were there for either incident. So we do not know the whole story. I don't know how it is where you are, but normally if you struggle with law enforcement officers, they tend to detain you in handcuffs. It does matter where you are located. If she had returned to her seat when asked by the FA or the FAMs, that would most likely have been the end of that. Airlines don't want to create problems with their passengers. But the instant she started to struggle and assaulted a FAM it became a whole different situation. And on your last quote you left out a very important point. The passenger posed a potential threat to the safety of the aircraft and everyone on board. That is an important thought to keep in mind.
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Old 27th Oct 2010, 16:02
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rick1128,
I actually agree with what you are saying but the point that I am trying to make is not in regards to this issue but a much wider one:

Weapons do not belong on aircraft.

There is a lot of effort, cost and inconvenience to the travelling public imposed so as to keep weapons off the plane so why do we then send onto the aircraft exactly what a terrorist wants and needs?

Merchant shipping has rightly refused attempts to bring small arms onboard despite the much higher risk of pirate attack in some waters.

The FAMs are at best a gross waste of money and will probably never prevent terrorists taking over an aircraft. On the contrary, they make themselves a ripe target and heighten the danger of a hijacking by their very presence and the risk of being disarmed.
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Old 27th Oct 2010, 19:56
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The situation appears to be the following.

A passenger on a US-registered airplane, and therefore on US territory, was held to be contravening US law, and was restrained against her will by US law enforcement agents who are empowered to do that.

She was escorted over the border (namely, down the airstairs or into the tube) by those agents, who are now outside their jurisdiction, and inside another.

Difficult situation, this. Had those agents, in enforcing US law, been thereby contravening Brazilian law? If so, then when on Brazilian territory they might expect the usual legal measures (detention, passport confiscation, etc). They might be wise not to step off the plane if they do not have complete understanding of the situation.

The way to solve such situations is to have resolution agreements in place between the two countries (US and Brazil). If there are no such agreements, then law enforcement agents who have exercised their responsibilities on board a US airplane (and therefore within their jurisdiction) are probably well advised to stay there!

An interesting question is whether you, as such a marshal, take the restrained person back with you to be arraigned by a court? As a human matter, it probably works out best to let them free providing they go down the airstairs (don't push, no matter how tempting!).

Let's think how this works out in general.

Pick your favorite rogue state, XXYY. Say it has a law that chewing gum is forbidden, punishable by a immediate death. Say you get on XXYY airlines and start chewing gum; and enforcement agents come up, and "terminate" you. And say this becomes known instantly, through a passenger who blogs for a global news agency. We may assume the world is outraged. Say the airplane lands in country ZZZ. The enforcement agents are well advised to stay on board, and fly back to XXYY. But what if ZZZ has a law that says that anyone on board an airplane which lands in ZZZ may not have killed, on penalty of death? Are ZZZ enforcement agents entitled to go on board and try to arrest the XXYY enforcement agents?

You figure it out. There ain't a clean legal solution, although there might be a clean moral one (for ZZZ, and maybe an opposite clean moral one for XXYY).

PBL
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Old 28th Oct 2010, 14:24
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better a night in peoria than a night in a brazillian jail
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Old 28th Oct 2010, 14:25
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PBL:


The way to solve such situations is to have resolution agreements in place between the two countries (US and Brazil). If there are no such agreements, then law enforcement agents who have exercised their responsibilities on board a US airplane (and therefore within their jurisdiction) are probably well advised to stay there!
An air carrier aircraft is not an embassy. Once on the ground it certainly was not in any way United States territory. I question that concept even when airborne within another state's airspace.
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Old 29th Oct 2010, 08:46
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Originally Posted by aterpster
An air carrier aircraft is not an embassy. Once on the ground it certainly was not in any way United States territory. I question that concept even when airborne within another state's airspace.
On those three assertions I think you're right; wrong; wrong. Here is the quickest reference I could find: http://www.icao.int/icao/en/nr/1962/pio196214_e.pdf

Here is another: http://cns.miis.edu/inventory/pdfs/airterr.pdf

So, what's the right answer here? Can some legleegl help?

PBL
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Old 29th Oct 2010, 13:57
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I'm not a leeglegle.

Well, PBL, the first document is a 1962 newsletter announcing the development of a treaty. The second is a summary of the 1963 Tokyo Convention's import and history (and I was citing from the letter of the text).
The Law School at the University of British Columbia have put the Tokyo Convention online, and Google's
cache makes it available in a handy URL.

I'm assuming that the Rome newsletter is talking about what became the Tokyo Convention.

I'm no lawyer, but the convention is clear: Jurisdiction applies from the application of take-off power to the end of the landing roll, and the Commander's authority to enforce the powers of the Convention applies from when the doors are closed until when the doors are opened.

Chapter II covers Jurisdiction, and limits the cases where a state may "interfere with an aircraft in flight to exercise jurisdiction over an offence committed on board". The key is "in flight". Even then, there are significant exceptions that limit the cases.

For example, let's assume (for the sake of a thought experiment) there were Brazilian counterparts to the FAMs on the flight as well. And let's assume too, that the two uncovered FAMs really were beating the Judge's wife senseless. Now, the Brazilian "marshals" can invoke 4b, alleging that assaulting the woman constitutes an offense against a Brazilian national, and attempt to arrest the FAMs. At that point, things become interesting.

The scope of the treaty is purely for "offences on board" and solely to sort out the grounds on which each party can interfere. It says nothing about, for example, states interfering with flights with regards to offence committed elsewhere, nor does it limit or extend states' general claims to jurisdiction (article 3, paragraph 3 makes it clear that the jurisdiction granted is non-exclusive -- all parties agree that the State of registration can exercise jurisdiction, but that does not mean others can't as well. So a departing foreign-flagged aircraft with, say, a grinning foreign-passported bankrobber sitting on a carryon full of $100 bills can still be forced back).

The "Jurisdictional gap" mentioned in the summary of the Tokyo Convention is contained in Article 9 paragraph 1: the commander delivers to the local authorities anyone believed of committing an offence against the state of registration. So, if the local laws covering those offences do not exist, or do not envision jurisdiction over them when committed on foreign soil or aircraft, and the case is too minor to warrant extradiction, then the local authorities really can't do much with the prisoner.

What all this boils down to: if the local authorities decide that an act committed anywhere in the world constitutes a crime to their state, they can and will detain the suspects, and they have the authority and jurisdiction to board aircraft at their airports to do so. They can also exercise any number of exceptions to the Tokyo Convention to intervene on board aircraft in flight, or to force aircraft in flight to go where they weren't planning to go. At that point, how far they go is limited more by diplomacy and possibly treaties other than the Tokyo Convention.
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Old 30th Oct 2010, 06:26
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This thread started off talking about the authority and behavior of Air Marshalls, and there were some interesting - and different - interpretations of the treaties governing it. DingerX has just provided some useful information, and I was well on my way to learning something.

Then the thread was hijacked.

Please let's return here to the topic of legal jurisdictions and enforcement efforts on airplanes flying internationally.

If others want to talk about something else, then they are very welcome to start a new thread about it.

PBL
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Old 15th Nov 2010, 10:54
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I have yet to see one thing in the Brazilian media about this situation. But censuring the press, especially when high ranking officials or their families are involved is par for the course in this country.

Unfortunately, judges, their families, politicians, and people with money act with impunity in this country and believe they can do so anywhere. When a law enforcement official has the "audacity" to hold them to the same letter of the law as everyone else they are appalled, and this is far from the first case of this in Brazil. It happens on a daily basis, hence the familiar statement here of," voce sabe com quem voce esta falando?" Do you know who you are talking to?

In Brazil we have a saying, "For those I don't know nothing, for my friends everything, and for my enemies the law!"
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