Mexican Abductee Wins Right to Seek Damages

A Guadalajara physician who was kidnapped from Mexico in a scheme orchestrated by Drug Enforcement Administration officials has the right to sue the U.S. government for damages, a sharply divided federal appeals court ruled Tuesday.

The U.S. 9th Circuit Court of Appeals in San Francisco held 6 to 5 that Dr. Humberto Alvarez Machain should get his day in court against the government stemming from his April 1990 abduction by a former Mexican police officer hired by a DEA operative.

The judges in the majority rejected arguments that the war on terrorism might be impeded.

Three months before he was kidnapped, Alvarez had been indicted in Los Angeles on charges that he was involved in the 1985 murder of DEA agent Enrique Camarena Salazar.

His kidnapping precipitated an outcry from the Mexican government and several other nations, which said the DEA’s actions violated international law. Eventually, Alvarez was acquitted and returned to Mexico.

His subsequent civil lawsuit has been pending for more than a decade and has been the subject of ferocious litigation.

The DEA had no authority to effect Alvarez’s arrest and detention in Mexico, the court ruled Tuesday.

Judges emphasized that the kidnapping had been the idea of a Los Angeles DEA agent, Hector Berellez, and approved by his superiors, but the operation was not authorized by the attorney general or any other ranking Justice Department official.

Berellez and other Los Angeles-based DEA agents, using operatives in Mexico, orchestrated the kidnapping, dubbed “The Wild Geese,” taken from the name of a 1978 commando movie starring Richard Burton.The agency paid $60,000 to several Mexicans, who abducted the doctor and brought him to El Paso and then to Los Angeles.

The 9th Circuit majority ruled that the arrest was arbitrary and in violation of the law of nations because Congress has expressed no intent authorizing the DEA to exercise extraterritorial law enforcement powers.

Writing for the majority, Judge M. Margaret McKeown acknowledged that certain U.S. criminal laws are applicable to conduct occurring outside the United States.

However, McKeown wrote, “this proposition is not ... the same as the far-reaching principle advocated by ... the government, namely that a statute with extraterritorial application automatically carries with it the authority for United States agents to detain and arrest suspects worldwide.”

Congressional Intent

The fact “that Congress may have intended the reach of a criminal statute to extend beyond our borders does not mean that Congress also intended to give law enforcement officers unlimited authority to violate the territorial sovereignty of any foreign nation to enforce those laws or to breach international law in doing so,” she added.

McKeown wrote that the court was not required to “delve into the legal quagmire of apprehending terrorists” because the case involved the narrow question of whether Alvarez had a right to sue under two federal laws -- including one enacted in 1789 -- for a violation of the “law of nations.”

McKeown, a Clinton appointee, and five other judges -- three Clinton appointees, one Carter appointee and one Nixon appointee -- answered “yes” to those questions.

The majority emphasized that Alvarez’s DEA-instigated arrest took place “without an extradition request by the U.S., without the involvement of the Mexican judiciary or law enforcement, and under protest by Mexico.”

McKeown took pains to caution that the ruling “does not speak to the authority of other enforcement agencies or the military, nor to the capacity of the [president] to detain terrorists or other fugitives under circumstances that may implicate our national security interests.”

After the Alvarez kidnapping, McKeown noted, the Justice Department promulgated new internal regulations saying that, in the future, such operations must be authorized by ranking Justice Department officials.

On Tuesday, five judges dissented, led by Judge Diarmiud F. O’Scannlain, a Reagan appointee, who invoked the specter of Sept. 11.

“We are now in the midst of a global war on terrorism, a mission that our political branches have deemed necessary to conduct throughout the world, sometimes with tepid or even nonexistent cooperation from nations.

“With this context in mind, our court today commands that a foreign national criminal who was apprehended abroad pursuant to a legally valid indictment is entitled to sue our government for money damages.

“In so doing, and despite its protestations to the contrary, the majority has left the door open for the objects of our international war on terrorism to do the same,” O’Scannlain wrote.

His opinion was joined by two appointees of former President Bush and a Clinton appointee.

Judge Ronald M. Gould, a Clinton appointee, wrote a separate dissent, saying the case raised a “political question” that should not even be considered by a court.

Charles Miller, a Justice Department spokesman, said department lawyers were reviewing the 108-page decision and would have no immediate comment.

Legal experts, including Washington attorney Carter Phillips, who represented the former Mexican policeman who carried out the Camarena kidnapping, predicted that the U.S. Supreme Court would review the 9th Circuit ruling.

Tuesday’s decision upheld a 3-0 decision issued by a smaller panel of 9th Circuit judges on Sept. 11, 2001.

In seeking a rehearing, lawyers for the Justice Department said that “the necessity of maintaining this extraterritorial arrest authority is highlighted by the recent tragic events of Sept. 11.”

“If, for example, the FBI had learned of the planned attacks and somehow had been able to secure the arrest of [Osama] bin Laden in Afghanistan before Sept. 11,” the earlier 9th Circuit decision “could raise questions as to whether an extraterritorial arrest serving such vital U.S. national security interests would have given rise to civil liability under U.S. law.”

Alvarez’s lead lawyer, Paul Hoffman of Venice, said he was “dancing in the street” after reading Tuesday’s decision. The ruling vindicates his position that the government can’t do anything it wants regardless of international law, Hoffman said.

View of Ruling

Diane Amann, an international law professor at UC Davis Law School, praised the majority opinion as a carefully written ruling “that balances the rights of the individual against the needs of government law enforcement.”

“The majority is not acting out of thin air. It is interpreting and applying a statute [the Alien Tort Claims Act] passed by the very first Congress of the United States, and no subsequent Congress has felt the need to amend or change the statute.”

Amann also said she believed the ruling “has no direct effect” on individuals that U.S. forces captured in Afghanistan and imprisoned at Guantanamo Bay, Cuba.

The fact that both the majority and the dissent disagreed sharply on the ramifications of the ruling “is emblematic of the struggles judges are feeling these days,” Amann said.

“In the post-Sept. 11 environment, judges are much more aware of the potential consequences of decisions based on international law and decisions that affect cross-border relationships.”