Tuesday, December 2, 2003
High Court to Decide Whether Abducted Mexican May Sue
Justices to Determine if Litigation by Man Acquitted in Los Angeles After Seizure at Behest of DEA May Go Forward
By KENNETH OFGANG, Staff Writer/Appellate Courts
The U.S. Supreme Court yesterday agreed to decide whether a Mexican doctor who was abducted from his office and brought to the United States without judicial process to face trial for his alleged role in the torture and killing of a Drug Enforcement Administration agent may sue the U.S. government for false arrest.
The high court said in a brief order that it would review a 6-5 en banc decision by the Ninth U.S. Circuit Court of Appeals reinstating a suit by Humberto Alvarez-Machain. The justices ordered the case set for an hour of oral argument at an unspecified future date.
The Ninth Circuit majority said the alleged decision by low-level DEA officials to have the plaintiff brought to this country by force, without a formal request for extradition, would constitute a “violation of the law of nations” within the meaning of the Alien Tort Claims Act and also give rise to a false arrest claim under the Federal Tort Claims Act.
Dissenting judges predicted the decision would handicap the war on terrorism, a theme the government expounded upon in its brief in support of review.
Solicitor General Theodore Olson said if the decision were allowed to stand, it would jeopardize U.S. efforts “to apprehend individuals who may be abroad, plotting other illegal attacks” in the United States.
For example, he said, federal agents could not bring Osama bin Laden to America from his presumed hideout near the Pakistan-Afghanistan frontier to face charges in the Sept. 11 attacks.
Indicted in 1990
Alvarez was indicted in 1990, five years after DEA Special Agent Enrique “Kiki” Camarena-Salazar was abducted and brought to a house in Guadalajara, Mexico, where he was tortured and killed. Alvarez, who practiced in Guadalajara, was at the house at the time of the slaying and was accused of having used his medical skills to keep Camarena alive while he was interrogated under torture.
Several persons have been convicted in either United States or Mexican courts of involvement in the Camarena killing.
In April 1990, Alvarez was abducted from his office, held overnight in a motel and flown the next day to El Paso, Texas, where federal agents arrested him. He was later arraigned and taken to Los Angeles to stand trial.
Discovery identified a former Mexican police officer, Francisco Sosa, as having undertaken the abduction in exchange for cash and a promise that the DEA would assist his efforts to obtain a law enforcement position with Mexico’s federal government.
Alvarez attacked his criminal prosecution, moving to dismiss the case based on violation of the United States-Mexico Extradition Treaty. U.S. District Judge Edward Rafeedie of the Central District of California, now a senior judge, and the Ninth Circuit agreed, but the U.S. Supreme Court, while acknowledging that Alvarez might have a civil remedy, reversed on the basis of the century-old Ker doctrine.
The doctrine holds that a court may generally exercise criminal jurisdiction over any person physically present in its territory, even if the person was brought there involuntarily.
After the case was reinstated, Alvarez was brought to trial, but Rafeedie granted a motion for acquittal, saying the government’s case was speculative. Released after more than two years in custody, Alvarez returned to Mexico and sued, with the assistance of the ACLU Foundation of Southern California and the Center for Constitutional Rights and Constitutional Law.
Named as defendants were the government and five individuals who were DEA officials at the time of the abduction—Director Jack Lawn, Deputy Director Pete Gruden and supervisory agents Hector Berellez and Bill Waters—along with alleged Mexican go-between Antonio Garate-Bustamante, Sosa, and five unnamed Mexican nationals who entered the federal witness protection program.
Decade of Litigation
The civil case has been in litigation for more than 10 years. U.S. District Judge Stephen V. Wilson awarded Alvarez $25,000, but threw out most of his claims.
The three-judge Ninth Circuit panel and the en banc court each agreed with Wilson in part, but both said Alvarez could sue for false arrest.
“There was, quite simply, no basis in law for the unilateral extraterritorial arrest and related detention of Alvarez in Mexico,” Judge M. Margaret McKeown wrote for the court. She was joined by Chief Judge Mary M. Schroeder, Senior Judge Alfred Goodwin, and Judges
Raymond C. Fisher, Sidney Thomas, and Richard A. Paez.
McKeown said the court’s ruling was a limited one. She noted that there is no provision of law allowing the DEA to unilaterally bring suspects to the United States for trial.
Alvarez, she explained, is not entitled to damages as a result of being forcibly removed to the United States. But he is entitled to a remedy for his “arbitrary” arrest and detention, she said.
The five concurring judges, in a separate opinion authored by Fisher—a former U.S. associate attorney general—emphasized that the decision to abduct Alvarez was apparently made without the participation of any official of higher rank than Gruden, the deputy DEA administrator.
“It seems obvious that such a controversial, risky operation should have been evaluated and approved by the Attorney General personally (or at least by some high-ranking Department of Justice official authorized to act on the Attorney General’s behalf), probably in consultation with the Department of State or the White House Counsel’s office,” Fisher wrote.
Judge Diarmuid F. O’Scannlain dissented, joined by Judges Andrew Kleinfeld, Pamela Ann Rymer, and Richard Tallman. O’Scannlain said Alvarez was “apprehended abroad pursuant to a legally valid indictment” and called the decision “bewildering” and “the implications for our national security...ominous.”
Judge Ronald Gould dissented separately, arguing that the executive branch’s decision to pursue a suspect abroad is “political” and beyond review by the courts.
The case is Alvarez-Machain v. United States, 03-339.
Copyright 2003, Metropolitan News Company