February 15, 2005
Decisions about international relations are not normally left to the judiciary. Judges are not experienced in conducting international negotiations, and a courtroom is not the best venue for a war against terrorism. The panel in this case, however, awarded damages to the Mexican citizen, effectively sanctioning the United States government for political and legislative decisions.
The laws cited by the panel to support its opinion were written to be enforced by sovereign nations, not individuals. They do not provide for private causes of action. Given the approval of the criminal prosecution by the Supreme Court, the sensitivity of the issues involved (assassination of a U.S. DEA agent, U.S. national security interests, and the discretion of the executive branch), and the potential ramifications of this holding on the war on terrorism, the Ninth Circuit should reverse the panel. Barring that, the Supreme Court should grant certiorari.
The case began in 1985, as American DEA agent Enrique Camarena was in Mexico, investigating the possible link between Mexican officials and major drug cartels. On February 7, he was kidnaped outside the American consulate in Guadalajara. His mutilated body was found one month later, about sixty miles outside of Guadalajara along with the body of Alfredo Zavala-Avelar, a Mexican pilot who had been working with him. Both men had been brutally tortured before they were murdered.
Investigation of the murders led to an indictment being returned against 22 people. One of the suspects was Humberto Alvarez-Machain, an obstetrician from Guadalajara. Alvarez-Machain was present while Camarena was being tortured. In fact, he was accused of using his medical knowledge to prolong Camarena's life in order to permit the abductors to torture and interrogate him for a longer period of time. A bench warrant was issued for his arrest.
The indictment also charged several Mexican government and police officials with involvement in the crime. Because of this, DEA officials were justifiably concerned about working with Mexican police. The DEA attempted to obtain Alvarez-Machain's presence in the United States through informal negotiations with carefully selected Mexican officials. After those negotiations proved unsuccessful, DEA officials approved the use of Mexican nationals to take custody of Alvarez-Machain in Mexico and transport him to the United States.
The Mexican national in charge of seizing Alvarez-Machain was Jose Francisco Sosa, a former policeman. On April 2, 1990, Sosa and some men he employed apprehended Alvarez-Machain at his office and held him overnight at a motel. They flew him to El Paso, Texas within 24 hours, and there he was arrested by federal agents. Sosa and his men immediately returned to Mexico. Alvarez-Machain was not physically harmed during the operation.
The Criminal Proceedings
In the subsequent criminal proceedings, Alvarez-Machain argued that the federal courts lacked jurisdiction to try him because of the manner by which he was apprehended. The trial court agreed, finding that the seizure violated the extradition treaty between the United States and Mexico. The court dismissed the case and ordered the United States to return Alvarez-Machain to Mexico. United States v. Caro-Quintero, 745 F. Supp. 599, 614 (C.D. Cal. 1990). The Department of Justice appealed to the U.S. Court of Appeals for the Ninth Circuit. In a brief per curiam opinion, the Circuit Court affirmed the lower court's decision. United States v. Alvarez-Machain, 946 F.3d 1466, 1466-67 (9th Cir. 1991).
The Supreme Court then granted certiorari and held that Alvarez-Machain's arrest "was not in violation of the Extradition Treaty." Further, the Court concluded that, whether or not the arrest was in violation of international law, Alvarez-Machain could be tried in this country. Any remedy for Alvarez-Machain's apprehension was "a matter for the Executive Branch" to decide. The Court remanded the case for trial. Alvarez-Machain v. United States, 504 U.S. 655 (1992).
On remand, Alvarez-Machain was tried in federal court. At the close of the government's case, the district court granted Alvarez-Machain's motion for acquittal, at which point he returned to Mexico. See Alvarez-Machain v.United States, 107 F.3d 696, 699 (9thCir. 1996).
The Civil Suit - The Trial Court
On July 9, 1993, Alvarez-Machain brought a lawsuit against Sosa, certain DEA agents, and other individuals, including five unnamed Mexican civilians (Sosa's assistants). He alleged various torts, including: kidnaping, torture, cruel and inhuman and degrading treatment or punishment, arbitrary detention, assault and battery, and false imprisonment. Alvarez-Machain sought to hold the United States liable under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674 (FTCA). He sought to hold the individual federal defendants liable under common law, the Alien Tort Statute, 28 U.S.C. § 1350 (ATS) , and the Constitution.
The district court, pursuant to 28 U.S.C. § 2679, substituted the United States as defendant on the common law tort and ATS claims brought against the individual federal defendants, dismissed the constitutional claims, and granted the United States' motion to dismiss in part.
Ruling on summary judgment, the district court concluded that Alvarez-Machain's arrest violated a "specific, universal and obligatory" norm of international law and granted judgment against Sosa on a count under the Alien Tort statute. While concluding that Alvarez-Machain was not mistreated during his transfer to federal custody, the court held that Sosa violated the international prohibition against "prolonged arbitrary detention." The district court refused to consider the brief nature of the detention, ruling that this was only relevant to damages.
The court then held that Alvarez-Machain could recover damages for his detention prior to his arrival in the United States, applied American rather than Mexican damage laws, and awarded Alvarez $25,000. See Alvarez-Machain, 107 F.3d at 701. Alvarez-Machain and Sosa both appealed.
The Ninth Circuit Panel Opinion
On September 11, 2001, a panel from the Ninth Circuit Court of Appeals held that Alvarez-Machain could indeed maintain his suit for abduction. Although the panel noted that no international human rights instrument expressly refers to transborder arrests or even kidnapings, it held that Alvarez-Machain's seizure violated the international customary legal norm against arbitrary detention based upon various documents, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights.
The panel also held that the arrest of Alvarez-Machain was a "false arrest" for which the government was liable under the FTCA. Therefore, the court reversed the District Court's dismissal of the FTCA claims against the government and remanded for a determination of liability.
The panel also affirmed the judgment in favor of Alvarez -Machain against Sosa under the ATS. The panel explained that because "Alvarez's abduction occurred pursuant to neither the laws of Mexico nor to the laws of the United States," his "kidnaping" was actionable under the ATS.
The panel held that U.S. federal common law should be used so as to maximize Alvarez-Machain's damages. The opinion explained that since American laws were "stronger," they enhanced the policies "underlying international human rights law." Alverez-Machain v. United States, No. 99-56762 (9th Cir. 9/11/01).
The Legal Standard
The arrest deemed by the panel to be a violation of the "law of nations" was in fact authorized by federal statute. The criminal statutes at issue in this case expressly apply to acts occurring abroad , and Congress has even authorized use of the military to assist in the rendition of a suspect (which obviously implies arrests outside of the United States). Because the DEA did not obtain an arrest warrant from a Mexican court, however, the panel concluded that Alvarez-Machain's false arrest claim was actionable against the United States.
In reaching this decision, the panel rejected the argument that the claim was precluded by the FTCA's exception for "[a]ny claim arising in a foreign country." 28 U.S.C. § 2680(k). The panel held this exception inapplicable because the seizure was planned by DEA officials in the United States . The panel also determined that the intentional tort exception did not bar the false arrest claim .
The panel held that the arrest in Mexico violated customary international human rights law because it violated certain rights guaranteed by international laws (freedom of movement, to remain in one's country, and security in one's person). As the panel noted, however, none of the human rights instrument upon which it relied states explicitly that forcible abduction violations international human rights law, nor have other federal courts found such rights to be enforceable.
The panel upheld Alvarez-Machain's action against Sosa under the Alien Tort statute for "prolonged arbitrary detention." The detention, however, was supported by a properly issued federal warrant. A federal grand jury had previously determined that there was probable cause to believe that Alvarez-Machain had committed an atrocious act that assisted in the execution of a federal agent. As such, the detention could not have been arbitrary . Moreover, even if it had been arbitrary, Alvarez-Machain's detention was not "prolonged" under commonly used standards. He was held for less than twenty-four hours prior to delivery to federal custody. These factual disputes, however, are not nearly as serious as the broader implications from the panel's holding.
The Wrong Forum (The Wrong Branch of Government)
As noted above, several of the holdings made or upheld by the panel are problematic and call for reversal. The first and most serious error, however, is that this is not an issue to be resolved by the judiciary. The international declarations and agreements upon which the panel relied to justify the lawsuit are not self-executing and they do not provide for causes of action in situations like this . It is well established that when a treaty is non-self-executing, it "addresses itself to the political, not the judicial department; and the legislature must execute the [treaty] before it can become a rule for the Court."  These provisions, as the Supreme Court has already held in this very case, regulate the relationship between nations, specifically the United States and Mexico. Those nations have already begun to resolve their problems through the appropriate political avenues. The federal judiciary should not involve itself in that process.
Federal judges are not skilled in foreign policy matters, nor are they expected to carry out duties related to such. That is why the high court has repeatedly stressed a "hands off" approach for the judiciary when reviewing matters involving international relations such as the legality of the Vietnam War, President Carter's revocation of the Taiwan Defense Treaty, and the post-World War II Tokyo War Crimes Tribunals. Judicial second-guessing of foreign policy is inherently unreliable and a way of courting disaster.
The panel decision relies primarily on the international norm that every nation has exclusive jurisdiction over its own territory and the conclusion that Alvarez-Machain's arrest in Mexico violated the principle of State territorial sovereignty. It is certainly true that Mexico has denied the legality of the DEA's extraterritorial actions. The appropriate remedy, however, is not a judicial award of money to Alvarez-Machain, but a negotiated political settlement between the respective nations.
The same authorities cited by the panel to justify its decision were found unpersuasive by the Supreme Court in the earlier criminal action in this very case. The Court at that time noted only that these authorities "may show" that Alvarez -Machain's apprehension "may be" in violation of international law, but held that the determination of the appropriate remedy for that violation is "a matter for the Executive Branch" to determine in the realm of foreign relations. Alvarez-Machain, 504 U.S. at 666-70 & n.15-16 (emphasis added). Certainly, the Supreme Court did not see the specific, universal and obligatory requirement of international law upon which the panel based its decision.
Under the panel's analysis, Alvarez-Machain's arrest and arbitrary detention claims against Sosa are actionable only because they occurred without the consent of Mexico. Thus, these ATS claims in reality also turn upon an alleged infringement against Mexican sovereignty. As the Supreme Court recognized, such matters must be resolved through State-to-State relations, not by a federal court . This is not a situation for a private tort action.
Expansion of the Alien Tort statute to permit individuals to complain of violations of international norms governing relations between sovereign States will almost certainly have dangerous international consequences for the United States, particularly during the current war on terrorism. In pursuit of its foreign policy objectives, the United States may well take actions that would arguably violate international norms . This might include actions alleged to violate the territorial integrity of another State . The Alien Tort statute is not intended as a vehicle for U.S. courts to judge the lawfulness of U.S. government actions abroad in defense of national security. Those matters need to be worked out through the diplomatic process.
In fact, with regard to this case, bilateral agreements of international cooperation have already been reached. Last May President George Bush expressed to President Vicente Fox his commitment to preventing United States law enforcement agencies from promoting or implementing cross-border arrests in Mexico. Mexico, in turn, has prosecuted and convicted numerous members of the drug ring that killed DEA agent Camarena, including the defendant whose name headed this case before the District Court, Rafael Caro-Quintero.
Ramifications and the Need for Reversal
This is an important case, because right now, our troops are looking for international criminals in foreign nations. Extraterritorial arrest authority is crucial to this effort. There are certainly differences between the situation today and the facts of the Alvarez-Machain case , but had American agents seized Osama Bin Ladin in Afghanistan or elsewhere on September 10, 2001 and brought him to the United States for trial, the panel's opinion could raise questions as to whether that arrest, regardless of its impact on vital U.S. national security interests, would give rise to civil liability .
That is not the way to conduct a war against terrorism, nor is it a way to enforce international agreements. The laws cited by the panel do not provide for private causes of action, and the federal judiciary should not create one. Given the prior decision of the U.S. Supreme Court and the sensitivity of the issues involved (assassination of a U.S. DEA agent, U.S. national security interests, and the discretion of the executive branch), the Ninth Circuit should reverse the panel, and barring that, the Supreme Court should hear the case.
1. The Alien Tort Statute, 28 U.S.C. § 1350, provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."
2. See 18 U.S.C. § 1201(a)(4), (e) (prohibiting kidnaping of internationally protected federal employees outside the United States). In United States v. Chen, 2 F.3d 330, 333 (9th Cir. 1993), cert. denied, 511 U.S. 1039 (1994), the Ninth Circuit held that the INS had arrest authority outside the borders of the United States. The court explained that when a criminal statute applies extra-territorially, it could "infer from the broad language that Congress intended to grant the Attorney General the corresponding power to enforce the immigration laws both within and without the borders of the United States."
3. The Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(k), bars "[a]ny claim arising in a foreign country." The panel attempted to avoid this exception by citing the acts of the DEA officials in the United States and applying the "headquarter's claim" rule. Under that rule, a claim may be asserted, notwithstanding § 2680(k), if a culpable "act or omission" occurred in the United States, even if the "operative effect" of the act or omission took place in a foreign country. See Cominotto v. United States, 802 F.2d 1127, 1130 (9th Cir. 1986); Leaf v. United States, 588 F.2d 733 (9th Cir. 1978). Here, however, the tortious "act" indisputably occurred in Mexico. None of the command decisions made in the United States were tortious. The only reason the panel deemed the arrest tortious was that there was no Mexican arrest warrant, i.e., that the arrest was unlawful under Mexican law. It is established, however, that liability under the FTCA cannot be predicated upon a violation of foreign law. United States v. Spelar, 338 U.S. 217, 220-221 (1949) (Congress was "unwilling to subject the United States to liabilities depending upon the laws of a foreign power").
4. The DEA's statutory arrest authority is very broad. A DEA agent is empowered by statute to "make arrests without warrant... for any felony, cognizable under the laws of the United States, if he has probable cause to believe that the person to be arrested has committed... a felony." 21 U.S.C. § 878(3). Federal law enforcement agencies have particularly broad arrest authority when enforcing crimes with extraterritorial application. See Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities, 13 Op. Off. Legal Counsel 163, 1989 WL 595835 (1989).
5. While the panel believed that the DEA should have obtained permission from Mexico before seizing Alvarez-Machain, the acts taken pursuant to a federal indictment "were pursuant to law" and therefore cannot be deemed "arbitrary" and actionable under the ATS. See Martinez v. City of Los Angeles, 141 F.3d 1373, 1383-1384 (9th Cir. 1998).
6. While the United States has signed the American Convention on Human Rights, it is not a party to that Convention since it not yet been ratified. Additionally, while the United States has ratified the International Covenant on Civil and Political Rights (and it became operative more than two years after the events underlying this suit), the Senate and the Executive Branch agreed at the time of ratification that the Covenant articles on which plaintiff relies (Arts. 9 and 10) are not self-executing and may not be relied upon by individuals. S. Exec. Rep. No. 23, 102d Cong., 2d Sess. 9, 19, 23 (1992); 138 Cong. Rec. 8068, 8070-71 (April 2, 1992). These Declarations are not treaties, nor are they binding international agreements. Indeed, at the time of passage of the Universal Declaration of Human Rights, Eleanor Roosevelt, Chairman of the U.N. Human Rights Commission, who was instrumental to its passage, stated that the Declaration "is a declaration of basic principles" but "is not and does not purport to be a statement of law or legal obligation."
7. Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.).
8. 504 U.S. at 669.
9. Law enforcement agencies normally seek extradition or other forms of cooperation from the host country. Extraordinary cases, however, may require action without the consent of the host country. See United States v. Howard-Arias, 679 F.2d 363, 371-72 (4th Cir.), cert. denied, 459 U.S. 874 (1982). There also may be some instances where a host country permits such an arrest, but will not publicly acknowledge its consent. In either case, it is vital to effective law enforcement that the government retain the ability to act, when necessary, outside the borders of the United States. See Douglas Kash, Abducting Terrorists under PDD-39: Much Ado about Nothing New, 13 Am. U. Int'l L. Rev. 139 (1997).
10. See 131 Cong. Rec. 18,870 (1985) (Sen. Specter) (in enacting statute criminalizing murder of U.S. nationals abroad, explaining that "if the terrorist is hiding in a [foreign] country..., where the government... is powerless to aid in his removal, or... is unwilling, we must be willing to apprehend these criminals ourselves and bring them back for trial").
11. Most importantly, Congress has authorized the President to "use all necessary and appropriate force against those nations, organizations or persons [that the President determines were responsible for or aided the terrorist attacks of September 11]." See Pub. L. 107-40 (2001).
12. Numerous other federal statutes also apply to conduct outside of the United States, and they may also be implicated by the panel's ruling. See, e.g., 18 U.S.C. § 1119 (murder of United States national in foreign country); 18 U.S.C. § 2332b (foreign terrorist activity); 18 U.S.C. § 175 (extraterritorial use of biological weapons); 18 U.S.C. §§ 351, 1751 (extraterritorial crimes committed against high government officials); 18 U.S.C. § 1956 (extraterritorial money laundering); 18 U.S.C. § 2339B (providing assistance to foreign terrorist organizations); 18 U.S.C. § 1116(c) (attacks on diplomats); 18 U.S.C. § 1203(b)(1) (hostage-taking); 49 U.S.C. § 1472(1) (carrying weapons or explosives aboard aircraft); 50 U.S.C. § 424 (extraterritorial jurisdiction over crimes relating to releasing national security information).