331 F.3d 604 (9th Cir. 2003), 99-56762, Alvarez-Machain v. U.S.

Docket Nº:99-56762
Citation:331 F.3d 604
Party Name:Alvarez-Machain v. U.S.
Case Date:June 03, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 604

331 F.3d 604 (9th Cir. 2003)

Humberto ALVAREZ-MACHAIN, Plaintiff-Appellant,

v.

UNITED STATES of America; Hector Berellez; Bill Waters; Pete Gruden; Jack Lawn; Antonio Garate-Bustamante; Francisco Sosa, and five unnamed Mexican nationals currently in the federal witness protection program, Defendants-Appellees.

Humberto Alvarez-Machain, Plaintiff-Appellee,

v.

Francisco Sosa, and five unnamed Mexican nationals currently in the federal witness protection program, Defendant-Appellant.

Nos. 99-56762, 99-56880.

United States Court of Appeals, Ninth Circuit

June 3, 2003

Argued and Submitted June 11, 2001.

Panel Opinion Filed Sept. 11, 2001.

Rehearing En Banc Granted March 20, 2002.

Argued and Submitted En Banc June 18, 2002.

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Paul L. Hoffman, ACLU Foundation of Southern California, argued the cause for appellee/cross-appellant Humberto Alvarez-Machain. Ralph G. Steinhardt, Joan Fitzpatrick, Alan Castillo, Dilan Esper, Robin S. Toma, Erwin Chemerinsky, ACLU Foundation of Southern California, Los Angeles, CA; Alan Rubin, Epstein, Adelson & Rubin, Los Angeles, CA; Peter Schey, Center for Constitutional Rights and Constitutional Law, Los Angeles, CA; and Thomas Nanney, Morrison & Hecker, Kansas City, MO, were on the briefs.

Carter G. Phillips, Sidley Austin Brown & Wood, Washington, DC, argued the case for appellant/cross-appellee Jose Francisco Sosa. Charles S. Leeper, Glenn S. Greene, Spriggs & Hollingsworth, Washington, DC, and Lee W. Cotugno, Kalisch, Cotugno & Rust, Beverly Hills, CA, were on the briefs.

Robert M. Loeb, Attorney, Appellate Staff, U.S. Department of Justice, Washington, DC, argued the cause for cross-appellee United States of America. Robert S. McCallum, Assistant Attorney General, John S. Gordon, U.S. Attorney, Barbara L. Herwig, August E. Flentje, Attorneys, Appellate Staff, U.S. Department of Justice, Washington, DC, were on the brief.

Charles J. Cooper, Hamish P.M. Hume, Cooper & Kirk PLLC, Washington, DC, were on the brief for cross-appellees Jack Lawn, Peter Gruden, William Waters, and Hector Berellez.

William J. Aceves, San Diego, CA, and Jennifer Green, Center for Constitutional Rights, New York, New York, were on the brief for amici curiae International Human Rights Organizations and International Law Scholars.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-93-04072-SVW-06.

Before SCHROEDER, Chief Judge, GOODWIN, O'SCANNLAIN, RYMER, KLEINFELD, THOMAS, McKEOWN, FISHER, GOULD, PAEZ and TALLMAN, Circuit Judges.

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Opinion by Judge McKEOWN; Concurrence by Judge FISHER; Dissent by Judge O'SCANNLAIN; Dissent by Judge GOULD.

OPINION

McKEOWN, Circuit Judge.

We must decide whether the forcible, transborder abduction of a Mexican national, Humberto Alvarez-Machain ("Alvarez"), by Mexican civilians at the behest of the Drug Enforcement Administration (the "DEA") gives rise to a civil claim under United States law. In an earlier, related proceeding, the Supreme Court acknowledged, without deciding, that Alvarez "may be correct" in asserting that his abduction was "shocking" and "in violation of general international law principles." United States v. Alvarez-Machain, 504 U.S. 655, 669, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992). We now address the question left unanswered--whether there was a "violation of the law of nations," a predicate to federal court jurisdiction under the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350. We also consider whether the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671-2680, provides a remedy for this cross-border abduction.

In 1990, Mexican citizens acting on behalf of the DEA kidnapped Alvarez from his office in Mexico for his alleged involvement in the kidnapping and murder of an American DEA agent in Mexico. The arrest of Alvarez took place without an extradition request by the United States, without the involvement of the Mexican judiciary or law enforcement, and under protest by Mexico. Alvarez was brought to the United States, stood trial on criminal charges, and was acquitted. He then sued his former captors, the United States, and the DEA agents, asserting a panoply of common law and constitutional torts arising from his abduction.

This case, which has been litigated in one form or another for more than a decade, involves important issues of international law and sovereignty. It also implicates our country's relations with Mexico, our neighbor to the South and an important ally and trading partner. The questions it raises, particularly with regard to the Executive's power to carry out law enforcement operations abroad, perhaps resonate to a broader audience today than when the case began. In the midst of contemporary anxiety about the struggle against global terrorism, there is a natural concern about the reach and limitations of our political branches in bringing international criminals to justice.

But we need not delve into the legal quagmire of apprehending terrorists or even resolve many of the complex issues spawned by this international abduction dispute. Nor is it within our province to address the policy and diplomatic issues associated with transborder kidnapping. Rather, this appeal presents only the narrow question whether Alvarez has a remedy at law under the ATCA and the FTCA for a violation of the "law of nations."

More precisely, we must determine the statutory authority of a single federal agency--the DEA--to make a warrantless arrest outside the borders of the United States and, if the agency lacks that authority, whether Alvarez has a remedy at law under the ATCA or the FTCA. After a careful review of the relevant statutes, we conclude that the DEA had no authority to effect Alvarez's arrest and detention in Mexico, and that he may seek relief in federal court.

Whatever the contours of the powers of the political branches during wartime or in matters of national security, the exercise of those powers in the combat against terrorism are not implicated in our analysis.

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Our holding today, that Alvarez may pursue civil remedies for actions taken against him more than ten years ago by the DEA and its agents, is a limited one. It does not speak to the authority of other enforcement agencies or the military, nor to the capacity of the Executive to detain terrorists or other fugitives under circumstances that may implicate our national security interests. The Fourth Circuit recently underscored this distinction when it recognized, in approving the detention of an American citizen captured abroad and designated as an "enemy combatant," that it was "not ... dealing with a defendant who has been indicted on criminal charges in the exercise of the executive's law enforcement powers" but rather "with the executive's assertion of its power to detain under the war powers of Article II." Hamdi v. Rumsfeld, 316 F.3d 450, 473 (4th Cir. 2003). We, by contrast, are dealing with the former, not the latter.

BACKGROUND

In February 1985, DEA Special Agent Enrique Camarena-Salazar ("Camarena") was abducted and brought to a house in Guadalajara, Mexico, where he was tortured and murdered. Alvarez, a Mexican citizen and a medical doctor who practices in Guadalajara, was present at the house.

Five years after Camarena's death, a federal grand jury in Los Angeles indicted Alvarez for participating in the scheme, and the United States District Court for the Central District of California issued a warrant for his arrest. The United States negotiated with Mexican government officials to take custody of Alvarez, but made no formal request to extradite him. Instead, DEA headquarters in Washington, D.C., approved the use of Mexican nationals, who were not affiliated with either government, to arrest Alvarez in Mexico and to bring him to the United States.

The DEA agent in charge of the Camarena murder investigation, Hector Berellez ("Berellez"), with the approval of his superiors in Los Angeles and Washington, hired Antonio Garate-Bustamante ("Garate"), a Mexican citizen and DEA operative, to contact Mexican nationals who could help apprehend Alvarez. Through a Mexican intermediary, Ignacio Barragan ("Barragan"), Garate arranged for Jose Francisco Sosa ("Sosa"), a former Mexican policeman, to participate in Alvarez's apprehension. Barragan told Sosa that the DEA had obtained a warrant for Alvarez's arrest, would pay the expenses of the arrest operation, and, if the operation was successful, would recommend Sosa for a position with the Mexican Attorney General's Office.

On April 2, 1990, Sosa and others abducted Alvarez from his office and held him overnight at a motel. The next day, they flew him by private plane to El Paso, Texas, where federal agents arrested him. Alvarez was later arraigned and transported to Los Angeles for trial. He remained in federal custody from April 1990 until December 1992.

Alvarez moved to dismiss the indictment, arguing that the federal courts lacked jurisdiction to try him because his arrest violated the United States-Mexico Extradition Treaty. Both the district court and this court agreed, see United States v. Alvarez-Machain ("Alvarez-Machain I"), 946 F.2d 1466, 1466-67 (9th Cir. 1991) (per curiam), aff'g United States v. Caro-Quintero, 745 F.Supp. 599 (C.D.Cal.1990), but the Supreme Court reversed and remanded the case for trial. See United States v. Alvarez-Machain ("Alvarez-Machain II"), 504 U.S. at 669-70, 112 S.Ct. 2188.

The Supreme Court held that Alvarez's arrest did not violate the United States-

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Mexico Extradition Treaty...

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