Arrests Abroad : Long Arm of Law Bends the Rules

Angel John Zabeneh, scion of a banana- and citrus-growing family in the small Central American nation of Belize, had no hint of the detour he’d be taking when he flew to Guatemala last Nov. 10 to buy provisions for the family plantations.

According to Zabeneh’s account, unchallenged by U.S. authorities, an agent of the U.S. Drug Enforcement Agency--whose officers by federal law are barred from participating in arrests overseas--seized Zabeneh and his two traveling companions as they passed through customs at the Guatemala City airport.

Then, DEA agents accompanied by armed Guatemalan plainclothesmen strip-searched the three men, handcuffed them and locked them in an empty room at the airport overnight--ignoring their requests for food, water and the chance to speak with an attorney.

Faces 35 Years

The next morning, Zabeneh’s associates were placed on a plane back to Belize. Zabeneh was flown to Houston, where DEA agents arrested him on marijuana smuggling charges. He was convicted Tuesday in Dallas federal court and faces a prison term of up to 35 years.

Although the United States has an extradition treaty with Belize, Zabeneh, 36, was not extradited. Instead, he joined a small but steadily growing contingent of accused criminals captured overseas through the informal cooperation of U.S. and foreign law enforcement officers and subjected to Third World police practices that, critics say, would derail prosecutions if they happened in the United States.

“Agents of the U.S. government went down there and kidnaped a citizen,” complained John Ackerman, the Houston attorney who represents Zabeneh and plans to make the arrest the focus of an appeal. “If that’s not ‘ugly Americanism,’ I don’t know what is.”

Tales of Torture

Targets of overseas arrests--ranging from swindlers to accused murderers, but mainly suspects in drug cases--have also claimed in U.S. courts during the last decade that they were threatened, tortured and rushed across borders by foreign police acting at the behest of U.S. authorities.

In all the 30 or more such cases argued before state and federal judges, U.S. courts have upheld the arrests--if sometimes hesitantly--because of a longstanding legal doctrine that strips American judges of the power to question a suspect’s treatment before he enters the United States.

But critics--academic experts in criminal and international law as well as criminal defense attorneys--say the unregulated alliances of foreign and U.S. law enforcement agencies cannot help but chip away at the rights of the accused, while undermining respect for the formal processes of international law.

Plucking suspects off the streets of foreign capitals and shoving them onto airplanes or across border frontiers, they say, is dubious behavior for a nation conducting a much ballyhooed war on international terrorism.

“If you are going to have a system of international law, you cannot start making exceptions for people to violate that system,” said Cherif Bassiouni, a law professor at DePaul University in Chicago who has written a widely used text on international extradition. “You can’t say ‘This is a good kidnaping’ and ‘This is a bad kidnaping.’ ”

Despite the criticisms, abductions persist as a tool of U.S. law enforcement. Some recent examples:

- In February, Clay County, Fla., sheriff’s deputies asked police in Ciudad Juarez, Mexico, to arrest Tommy Dye, 41, a suspect in a contract murder. Dye confessed to the Mexicans--but only, he says, after police hanged him by his wrists, shocked his genitals with wires connected to a truck battery and fired blank shells from guns held beside his ears.

Mexican police denied the torture allegations in interviews with Patrick McGuinness, Dye’s court-appointed lawyer in Florida. Dye recently pleaded guilty to second-degree murder, but McGuinness remains disturbed by his client’s treatment.

“If you have an innocent man arrested under these circumstances, he’d be a fool not to confess also,” McGuinness said.

- In January, six Mexicans grabbed Rene Martin Verdugo, a suspected drug smuggler, on the streets of the Baja California resort town of San Felipe, blindfolded him, stuffed him in their car and drove him to Mexicali, where they shoved him through a hole in the border fence into the hands of waiting U.S. authorities. American officials have identified four of the men who abducted Verdugo as former officers of the Baja California State Judicial Police.

In their own country, a federal prosecutor has issued arrest warrants charging five of the six men with kidnaping and false imprisonment for the capture of Verdugo, who prosecutors believe has information about the kidnap-slaying last year of DEA agent Enrique S. Camerena in Guadalajara. U.S. officials have acknowledged paying the men $32,000 in cash for delivering Verdugo and hiding them in the United States to protect them from prosecution and threats to their lives.

- In January, 1985, Mexican police arrested Thomas Roessler, 45, and his daughter, then 4, in Rosarito Beach at the request of the FBI. American authorities wanted him deported to the United States so he could be extradited with his wife to Australia, where they were wanted on fraud charges.

According to Roessler, Mexican officers first drove him north to Tijuana, training a cocked rifle on him and so terrified his daughter that she wet her pants. At the border, Roessler said, a Mexican officer pulled him from the car, his daughter in his arms, and kicked him in the shins until he literally hopped into the United States, where he was arrested by the FBI.

$15-Million Suit

“It’s outrageous to kidnap a man . . . halfway around the world,” said Roessler, who has filed a $15-million civil suit against U.S. and Australian authorities. A federal appeals court ordered Roessler and his wife returned to Australia in May.

In Roessler’s case--as in many others that have come under scrutiny in U.S. courts in the last 10 years--American police agencies denied the charges of manhandling by foreign authorities as the fabrications of a desperate criminal. Any excesses in the campaign against international crime, the law enforcement community’s defenders say, can be attributed to the importance of the crusade.

“This is a very, very fierce and hard-nosed contest that’s going on,” said John Cusack, staff director of the House Select Committee on Narcotics Abuse and Control. “If the Mexicans torture some poor guy in Mexico, that’s something for the Mexicans to address. What do our courts have to do with them? We’re only responsible for seeing that people in the U.S. are not tortured or brutalized.”

Bending the Rules

Governments, in any event, have a long history of bending the rules of international relations to get their hands on criminals who might otherwise escape prosecution.

Israel, for instance, apologized to Argentina for violating its sovereignty in 1960 when Israeli agents traveled to South America to capture Nazi war criminal Adolf Eichmann--but only after Eichmann was locked up in Israel awaiting the trial that led to his execution.

In the United States, Administration policy makers recently have considered abductions as a means of bringing suspected international terrorists to justice. Even academic experts who otherwise are dubious about international kidnapings acknowledge they may be justified in dealing with state-sponsored terrorism, where the government harboring a suspect is unlikely to turn him over to the United States for prosecution. They predict more abductions as the campaign against terrorism becomes more determined.

Risks to U.S. Diplomats

“You’re not going to get Kadafi to extradite anybody,” said Abraham Abramovsky, a professor at the Fordham Law School in New York whose writings have warned of risks to U.S. diplomatic and security interests in the unregulated use of international abduction.

In the realm of drug trafficking, the United States has been negotiating new extradition treaties and rewriting old ones in the past five years to lessen the instances when American authorities have no choice but to rely on informal, ad hoc means to arrest criminal suspects. Those efforts, along with a new emphasis on international cooperation in the drug war, produced a doubling in formal extraditions--from 227 to 454--between 1980 and 1984, according to the Justice Department’s Office of International Affairs.

But the reality is that extradition is a long and risky process that leaves to another nation’s legal system the decision on whether to ship a suspect to the United States. So authorities jump at opportunities to slice through international red tape.

Don’t Encourage Illegality

“If there is a faster method of getting a fugitive back, we certainly wouldn’t discourage doing it, but we don’t encourage anything that is illegal,” said Alvin Lodish, a senior Justice Department attorney in the Office of International Affairs.

Along the U.S.-Mexican border, law enforcement agencies for decades have engaged in a secretive, informal commerce in criminal suspects wanted by authorities on one side or the other. The trade is especially brisk in San Diego, where Mexican police hand over at least two or three suspects each month to U.S. authorities, according to Ruben Landa, a special agent for the California Department of Justice who has investigated border crime for 30 years.

Typically, say Landa and other officers, an American investigator will determine that a criminal suspect has fled to Mexico. He alerts trusted Mexican counterparts to the suspect’s whereabouts. Either alone or with the American officer at their side, the Mexicans arrest the suspect. Unless the suspect is Mexican--in which case U.S. authorities must ask the Mexicans to try him on their side of the border--Mexican immigration officials will declare the suspect an “undesirable” and expel him across the border. An American officer then completes the arrest on U.S. soil.

Subjected to Abuse

But in the process--called “irregular rendition” or “informal deportation”--many suspects complain they are subjected to abuse by Mexican police. These claims are rarely investigated, but such independent organizations as Amnesty International have accused Mexican authorities of using torture as part of their standard investigative repertoire.

Raul Balboa Garcia, a handsome, dark-haired chain-smoker, insists he still wakes up nights in a cold sweat with flashbacks to his torture at the hands of Baja California State Judicial Police during his arrest on a murder charge in March, 1980.

He was living in Mexicali under an assumed name after fleeing from San Diego, where, in a dispute over drugs, two Middle Easterners had brutally murdered a friend of Garcia in the bedroom of Garcia’s house two months earlier. Prosecutors believed that Garcia had abetted the killing by letting the murderers know where his friend could be found.

Broke Into His Room

According to Garcia, now a laborer in San Diego who has been in and out of prison on other charges as well, four or five men with guns and rifles broke into his room at the California Hotel in Mexicali. They slapped his wife and began beating him, demanding he confess to murdering the man.

Garcia said the men drove him to a police station and continued their questioning, at one point holding him on the floor and pouring water into his nostrils. When he still refused to confess, Garcia said, they drove him in chains to the border and turned him over to San Diego homicide detectives in Calexico.

Garcia eventually pleaded guilty to voluntary manslaughter in a plea bargain with San Diego County prosecutors, although he insists today he had nothing to do with the killing.

Rarely Any Witnesses

American police who take custody of suspects like Garcia with the help of foreign agents are dubious about the tales of torture, noting there hardly ever are witnesses to corroborate the claims.

“It’s an allegation made by the defense, and there’s no way of proving it,” said Detective Ron Collins, a Mexican liaison officer for the San Diego Police Department.

But Collins said American law enforcement officers, aware that U.S. courts are unlikely to challenge a suspect’s treatment at the hands of police overseas, don’t try to tell their foreign colleagues how to behave.

Hands-Off Attitude

“They’re going to treat them any way they want to,” he said of Mexican police. “We don’t tell them anything. We don’t ask them anything.”

The hands-off attitude traces back to an 1886 U.S. Supreme Court decision saying that regardless of how a defendant has reached American shores, his due-process rights are preserved if he is properly indicted and tried in the United States.

Judges sometimes have found the precedent--and police agencies’ practices--hard to swallow. As he reluctantly turned aside a challenge to one of a series of abduction cases to reach his federal appeals court in New York, Circuit Judge James Oakes wrote in a 1975 opinion that the courts, in their supervisory role over law enforcement, might someday be forced to draw the line.

Judge’s Comment

“To my mind the government, in the laudable interest of stopping the international drug traffic, is by these repeated abductions inviting exercise of that supervisory power in the interests of the greater good of preserving respect for the law,” he said.

Oakes’ court, the U.S. 2nd Circuit Court of Appeals, did carve out a narrow exception to the rule in the mid-1970s, when it held that charges against defendants can be dismissed if they present convincing evidence of reprehensible conduct, such as torture, by American agents in the course of an arrest.

Experts in international law say, however, that no charges have been challenged successfully on such grounds. As a result, critics argue, U.S. police agencies are emboldened to take advantage of other nations’ questionable law enforcement tactics, casting doubt on America’s commitment to the rule of international law.

“If this country condones it, we cannot object to any other country coming in with their posse to capture someone they want,” said Chicago attorney Luis Kutner, a 60-year veteran of the campaign for international recognition of due-process rights, whose clients have included Pope Pius XII, the late Supreme Court Justice William O. Douglas and poet Ezra Pound. “It makes a mockery of international extradition and shows we’re living in a lawless world.”

U.S. law enforcement, however, wants more leeway to operate overseas, not less. Sen. Dennis DeConcini (D-Ariz.), a former prosecutor, proposed legislation last year repealing the 10-year-old ban on U.S. agents’ participation in arrests overseas. The President’s Commission on Organized Crime endorsed the change this spring, calling the prohibition an “ill-conceived restriction.”

Moreover, foreign governments almost never protest the arrests of their citizens by the United States and its agents. In most of the documented cases of irregular rendition, in fact, assistance from the nation acting as temporary host for a suspect is critical to a successful arrest.

Analysts attribute the silence to a combination of common interest and intimidation. Most of the suspects sought overseas by the United States are certified, big-time criminals that the governments of Mexico, Belize or other host countries have little interest in protecting from prosecution, notes Bassiouni, the DePaul scholar.

‘Bad People’

“They’re bad people, and there really isn’t much sympathy for bad people,” Bassiouni said.

Besides, analysts say, the Third World nations to which suspects often flee are not in much of a position anyway to resist demands for assistance from a superpower they are dependant upon for trade, security or economic aid.

Musa, a former attorney general of Belize retained by Zabeneh’s mother in connection with her son’s detention in the United States, says he is convinced that his nation’s dependence on the United States has kept Belizean authorities from protesting Zabeneh’s arrest.

“There is the whole question of sovereignty and whether the Belize government is exercising that sovereignty,” Musa said, “or whether it is so beholden to the U.S. because of the need for foreign aid and economic assistance that it is cooperating much more than it needs to legally.”

Brushed Aside

Such questions often get brushed aside in the unsubtle world of international crime fighting, sometimes in a manner shameless enough to make even prosecutors squeamish.

In a Dallas court earlier this year, Assistant U.S. Atty. Joe Revesz acknowledged that DEA agents acted improperly in detaining Zabeneh in Guatemala.

“Obviously, the way to do it would be to go through the extradition process, if that’s what you want,” Revesz said in an interview. “It’s certainly nothing to brag about, and it’s nothing to encourage and it should not be done that way.”