Ruling in Camarena Case Flawed, Justice Dept. Appeal Says : Courts: Decision that the U.S. violated its treaty with Mexico by kidnaping doctor is ‘without precedent,’ government says. Doctor was indicted in murder of drug agent.

The Justice Department said Thursday that a Los Angeles federal judge made serious legal errors when he ruled that a Drug Enforcement Administration-orchestrated kidnaping in Guadalajara of a suspect in the Enrique Camarena murder case violated a U.S. extradition treaty with Mexico.

U.S. District Judge Edward Rafeedie’s Aug. 10 ruling “is without precedent in U.S. law,” according to a government brief seeking to overturn the decision.

The brief, written by Assistant U.S. Atty. William F. Fahey, contends that Rafeedie’s decision misconstrued the treaty and also “brushes aside more than 100 years of Supreme Court precedents” that a forcible abduction does not violate due process.

In a precedent-setting decision, Rafeedie ruled that the United States violated its extradition treaty with Mexico when it “unilaterally abducted” Dr. Humberto Alvarez Machain from his Guadalajara office on April 2.

“This court lacks jurisdiction to try this defendant,” the judge declared, ordering the government to return Alvarez to Mexico. But Rafeedie postponed issuing the order until prosecutors could appeal.

Federal prosecutors immediately expressed objection to the ruling and said that if the decision was upheld, it could impede their efforts to apprehend some of the remaining suspects in the Camarena case.

The brief also contends that the extradition treaty is irrelevant to this case because the U.S. government did not formally ask the Mexican government to extradite Alvarez. Justice Department officials said it would have been a futile gesture because Mexico has not extradited any Mexican national to the United States.

The brief also contends that the judge’s ruling “effectively usurped the executive branch’s authority to conduct foreign relations with the government of Mexico.”

Alvarez was kidnaped by six current and former Mexican policemen who had been recruited by a veteran Los Angeles-based DEA operative named Antonio Garate Bustamante. Garate, under the supervision of DEA agent Hector Berrellez, arranged for the kidnaping and both men were present when Garate’s recruits turned Alvarez over in El Paso on Aug. 3.

Last January, Alvarez was indicted by a federal grand jury on five felony charges stemming from the February, 1985, kidnaping and murder of Camarena, a veteran DEA agent, in Guadalajara. The indictment alleges that Alvarez administered drugs to Camarena to prolong his life so that he could be further tortured and interrogated at the home of Mexican drug lord Rafael Caro Quintero.

Alvarez has denied committing any crimes but has acknowledged that he had been a physician for Caro and that he was at the house when Camarena was tortured.

The Alvarez kidnaping precipitated a major controversy between the United States and Mexico. Mexican officials charged that the abduction violated Mexico’s sovereignty. Not long after the abduction, charges were filed against Alvarez by Mexican officials stemming from the Camarena killing.

Alvarez’s lawyers are expected to file a reply to the U.S. government’s brief by the end of the month. In early September, the American Civil Liberties Union undertook representation of Alvarez solely for the purposes of the appeal. The ACLU decided to take on the case after his attorney, Robert K. Steinberg, said he could not continue.

“The issue about the U.S. government essentially going into other countries and kidnaping someone is a significant human rights issue,” Paul Hoffman, the ACLU’s Southern California legal director, said in an interview.

Judge Rafeedie denied Alvarez bail in late August on grounds that he constitutes a flight risk.