Do DEA field agents have the power to unilaterally execute a trans-border abduction? The Ninth Circuit's take on Alvarez-Machain v. United States.

AuthorFohn, Stephen
PositionDrug Enforcement Agency
  1. CASE RECITATION A. Facts 1. DEA Agent Camarena and DEA Informant Zavala's abduction and murder 2. Alvarez's Abduction B. Procedural Posture 1. Alvarez's Criminal Trial 2. Alvarez's Civil Action II. ANALYSIS A. The Alien Tort Claims Act B. The Federal Tort Claims Act III. CONCLUSION Do United States Drug Enforcement Agency (DEA) agents have the power to unilaterally abduct a criminal suspect from a friendly nation without that country's consent? To what extent does the Executive branch have to authorize such operations so that the conduct of the federal agents ceases to be a tortious false arrest and becomes a proper procedure where negotiations for extradition have been ineffective? The surreptitious abduction of Doctor Humberto Alvarez-Machain, a Mexican citizen and gynecologist, implicated theses issues. In Alvarez Machain v. United States, (1) the Ninth Circuit considered whether the conduct of several DEA field agents, which resulted in the kidnapping of Alvarez, fixes liability on the United States under the Federal Tort Claims Act (FTCA) and the Alien Tort Claims Act (ATCA). While liability may arise under both the FTCA and the ATCA, the variation of the statutes' histories and sparse case law requires careful attention to international legal principles as well as established State law.

    Alvarez holds that such unilateral action on the part of DEA agents may subject the United States to tort liability under both the ATCA and the FTCA. (2) The holding thus goes far to ensure the involvement of the Executive in the planning and execution of trans-border arrests. As such, it ensures that the balance between political conflicts and effective law enforcement will be judged by those in the best position to do so. (3) However, in the eyes of others, the holding will hamstring the United States from enforcing the law and bringing to justice those who are responsible for crimes having an operable effect in the United States. (4)

    The U.S. Supreme Court, in Sosa v. Alvarez-Machain, has since overturned the Ninth Circuit's decision and held that neither the FTCA nor the ATCA provided a remedy for Alvarez. (5) However, the Ninth Circuit's analysis provides a clear indication of how the United States should proceed in the future, and suggests that the decision to execute a trans-national abduction should lie with officials capable of evaluating the effects of unilateral action.

    This Note analyzes the rationale of the Ninth Circuit's majority opinion in Alvarez in finding that unilateral action of DEA agents may subject the United States to liability under the ATCA and the FTCA, and the dissent's analysis that fixing liability under those acts is not supported by the traditional use of those statutes. Part I of this Note recites the facts and lengthy and complex procedural posture of the decision. Part II examines the rights protected by the ATCA and the FTCA, and the liability that may be imposed pursuant to those acts. Lastly, Part III argues that the majority of the Ninth Circuit panel correctly applied the law of ATCA and the FTCA and that, in doing so, they have rejected arbitrary decisions to invade friendly nations to arrest suspected criminals in place of the seasoned judgment of the Executive branch.

  2. CASE RECITATION

    1. Facts

      1. DEA Agent Camarena and DEA Informant Zavala's abduction and murder.

      During 1984, the DEA successfully executed a series of raids of marijuana fields operated by a Guadalajarian drug cartel located in Mexico, resulting in a record seizure of marijuana with a wholesale value of approximately five billion dollars. (6) The raids were executed, in part, by DEA agent Enrique Camarena and DEA informant Alfredo Zavala Avelar (Zavala), who assisted the DEA by scouting for marijuana fields. (7) Camarena, described as a "narc's narc," was raised in poverty, and his knowledge of Spanish "street language" enabled him to move from circle to circle and blend easily with racketeers of the drug underworld. (8) However, the DEA's successes prompted retaliation by the cartel, (9) resulting in the kidnapping and torturing of DEA agent Camarena and informant Zavala. (10) On February 7, 1985, Camarena and Zavala were kidnapped within hours of each other. (11) One month later, the beaten and partially decomposed bodies of Camarena and Zavala were discovered by Mexican police near a ranch approximately sixty miles east of Guadalajara. (12) An autopsy of the bodies indicated that Zavala had been buried alive, while agent Camarena had been badly beaten and tortured. (13)

      Camarena's torturers recorded his interrogation, presumably to be played to high ranking Mexican officials so they could ascertain whether the DEA had knowledge of the Mexican government's involvement. (14) During the summer of 1990, the interrogation tape, which included Camarena's pleadings for help and requests for medical attention, was played for the jury during the trial of his accused murderers. (15) During the trial in the Central District of California, the United States alleged that Humberto Alvarez-Machain (Alvarez), (16) an obstetrician practicing in Guadalajara, Mexico, (17) was present during Camarena's interrogation and administered a drug "to revive the agent when he passed out while being interrogated by his captors." (18)

      2. Alvarez's Abduction.

      Camarena's murder provoked an angry response by the United States, (19) and served as a rally for U.S. drug enforcement agents. (20) On January, 30, 1985, a federal grand jury indicted twenty-two people in connection with the murders of Camarena and Zavala, including Alvarez. (21) Ultimately, Alvarez was forcibly abducted and delivered to the United States by "associates" of DEA informant Antonio Garate Bustamante (Garate). (22)

      The United States had unsuccessfully negotiated with the Mexican government for the return of Alvarez prior to his abduction. (23) The first attempt at negotiation was initiated on December 13, 1989 by DEA agents Hector Berrellez and Bill Waters in response to a request by the Mexican government to deport Isaac Naredo Moreno (Naredo), who was wanted in Mexico in connection with the theft of large sums of cash from Mexican politicians. (24) The request for Naredo was initiated by Mexican Federal Judicial Police Commandante Jorge Castillo del Rey (Castillo). (25) Castillo initiated the request through DEA informant Garate, who arranged a meeting with Berrellez and Waters. (26) During their meeting, Berrellez agreed with Castillo to extradite Naredo from the United States if Mexico would deliver Alvarez to the United States after the Christmas holiday." (27) However, "[o]n January 7, 1990, Garate advised Berrellez that the Mexican officials required $50,000 in advance to cover the expense of transporting [Alvarez] to the United States." (28) The DEA refused to "front any money for the operation," and the planned exchange never occurred. (29)

      A second attempt to extradite Alvarez came on January 25, 1990 when Castillo renewed his request through Garate for the exchange of Naredo for Alvarez. (30) However, at that time, substantial publicity of Camarena's murder had caused considerable tension between the United States and the Mexican government. (31) As a result, DEA agent Berrellez declined the request, (32) and no agreement was made with the Mexican government regarding the extradition of Alvarez. (33)

    2. Procedural Posture

      1. Alvarez's Criminal Trial

      Following his abduction, Alvarez was indicted on January 31, 1990 for "conspiracy to commit violent acts and violent acts in furtherance of an enterprise engaged in racketeering activity, conspiracy to kidnap a federal agent, kidnap of a federal agent, felony-murder, and accessory after the fact." (34) Alvarez challenged the indictment against him claiming violation of due process, violation of the United States extradition treaty with Mexico, and violations of the United Nations' (U.N.) and Organization of American States' (O.A.S.) charters. (35) The District Court dismissed his due process claim but did not reach the U.N. and O.A.S. charter violation claims because "of its holding with regard to the extradition treaty." (36) The court also found that it did not have jurisdiction because the United States violated the extradition treaty between itself and Mexico. (37) Instead of acting in accordance with that treaty, the agents acted "unilaterally, without the participation or consent of the Mexican Government, and the Mexican government ha[d] registered an official protest to [the] actions." (38) As such, the court ordered the United States to immediately return Alvarez to Mexico, (39) and the Ninth Circuit affirmed in a per curiam opinion. (40) The government appealed, and the Supreme Court granted certiorari in 1992. (41)

      On June 15, 1992, the Supreme Court reversed the district court's finding that the United States lacked jurisdiction and remanded the case for further proceedings. (42) Writing for the majority, Chief Justice Rehnquist noted that the treaty merely provided a mechanism for extradition and the "procedures to be followed when the Treaty is invoked." (43) Additionally, Chief Justice Rehnquist noted that the treaty "does not purport to specify the only way in which one country may gain custody of a national of the other country for the purposes of prosecution." (44) Therefore, Chief Justice Rehnquist concluded that "to infer from this Treaty and...

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