U.S. Held Liable in '90 Kidnap

[Dynamite Bob]

http://latimes.com/news/local/la-000073744sep13.story?coll=la%2Dheadlines%2Dcalifornia

U.S. Held Liable in '90 Kidnap

                    Ruling: A court says the government-arranged
abduction of a Mexican
                  doctor sought in the murder of a DEA agent broke
international law.

                  By HENRY WEINSTEIN, TIMES LEGAL
                  AFFAIRS WRITER

                  For the first time, a federal appeals court has ruled
                  that a U.S. government-instigated kidnapping of an
                  individual from another country violates
                  international human rights law and that violation
                  can be redressed in a U.S. court.

                  The 3-0 ruling this week by the U.S. 9th Circuit
                  Court of Appeals in San Francisco stems from the
                  April 1990 abduction of Mexican physician
                  Humberto Alvarez Machain. Alvarez had been
                  indicted in Los Angeles three months earlier on
                  charges that he was involved in the 1985
                  kidnapping and murder of U.S. DEA Agent Enrique
                  Camarena in Guadalajara.

                  The kidnapping occurred after the Mexican
                  government refused to extradite Alvarez, who was
                  later acquitted in the Camarena case. The decision
                  Tuesday means that Alvarez is entitled to recover a
                  limited amount of damages. The Justice
                  Department, however, is likely to appeal the ruling.
                  In an earlier case, the U.S. Supreme Court ruled
                  that Alvarez could be put on trial in the United
                  States despite the fact that he had been brought here
                  as a result of a kidnapping.

                  U.S. Drug Enforcement Administration agents based in
Los Angeles,
                  using operatives in Mexico, orchestrated the
kidnapping. The agency
                  paid about $60,000 to several Mexicans who abducted
the doctor and
                  brought him to El Paso and then to Los Angeles,
according to testimony
                  by a DEA operative.

                  In 1992 a federal judge here acquitted Alvarez, who
was then permitted
                  to return to Mexico--after more than two years of
incarceration in the
                  United States. Several other men have been convicted
of involvement in
                  the federal drug agent's murder and sentenced to long
prison terms.

                  The ruling Tuesday was praised by Los Angeles civil
liberties lawyer
                  Paul Hoffman, who has represented the doctor for more
than a decade.
                  "We have been fighting for a U.S. court to rule that a
kidnapping like this
                  was a violation of international law," Hoffman said.

                  Justice Department attorney Robert Loeb said the
agency is considering
                  seeking a rehearing from a larger panel of 9th Circuit
judges or
                  appealing directly to the U.S. Supreme Court.

                  Alvarez's kidnapping precipitated strained relations
between the United
                  States and Mexico and spawned considerable litigation.

                  The decision this week evolved from a federal damage
suit that Alvarez
                  filed in Los Angeles a year after he was acquitted on
the criminal
                  charges. Alvarez, now 53, sued the U.S. government;
DEA agents in Los
                  Angeles and Washington; Francisco Sosa, a former
Mexican policeman;
                  and five other Mexican nationals, all of whom are now
in the U.S.
                  witness protection program.

                  The case involves important and complicated issues
involving how far
                  the government can go in attempting to apprehend a
suspect abroad. On
                  most of the major issues, the appeals court ruled
against the United
                  States.

                  In one of the most significant parts of the decision,
the 9th Circuit
                  rejected the government's claim that as a sovereign
nation it was immune
                  from such a suit.

                  "The government admits that it knew of and acquiesced
in the plan to
                  kidnap Alvarez and bring him to the United States,"
Judge Alfred T.
                  Goodwin wrote in a decision joined by jurists Mary M.
Schroeder and
                  Samuel P. King.

                  "Sosa performed the search to assist the DEA agents.
Sosa had no
                  individual interest in kidnapping Alvarez other than
to curry favor with
                  the DEA agents in the hopes that they would reward
him. Therefore,
                  because Sosa acted merely as an agent or instrument
for 'law
                  enforcement officers,' the United States has waived
sovereign
                  immunity," the appellate judges said.

                  These conclusions were praised by an attorney who
filed a
                  friend-of-the-court brief on behalf of several human
rights groups. "The
                  9th Circuit decision is significant because it
recognizes that international
                  law applies to the United States government," said
California Western
                  School of Law professor William J. Aceves.

                  The 9th Circuit also rejected the government's
argument that the DEA
                  has the power to implement U.S. law overseas even if
it overrides
                  international law.

                  "If this assertion [by the government] is an accurate
statement of United
                  States law, then it reinforces the critics of American
imperialism in the
                  international community," wrote Goodwin, an appointee
of President
                  Gerald Ford.

                  The court also ruled that "Alvarez's kidnapping
violated his right to
                  freedom of movement, to remain in his country and to
security in his
                  person, which are part of the 'law of nations.' "

                  Moreover, the court ruled, the United States is liable
under the Federal
                  Tort Claims Act for a "false arrest," the basic law
that permits a person
                  to file personal injury claims against the federal
government or its
                  agents.

                  The appeals court sent the case back to U.S. District
Judge Stephen V.
                  Wilson for a determination of the government's
monetary liability.

                  In earlier proceedings, Alvarez was awarded $25,000
against Sosa, a
                  ruling that Sosa appealed unsuccessfully. The 9th
Circuit upheld
                  Alvarez's right to recover against Sosa under the
Alien Tort Claims Act,
                  a law enacted in 1789 which permits a foreigner to sue
for damages in a
                  U.S. court.

                  Sosa's attorney, Charles S. Leeper of Washington,
D.C., said he was
                  disturbed by "the court's conclusion that Alvarez's
detention in Mexico
                  was arbitrary and unlawful and that he is entitled to
damages for that."
                  Leeper added, "We are especially troubled by the
court's conclusion that
                  U.S. law enforcement agents have to obtain a warrant
or permission
                  from foreign countries harboring fugitives or other
individuals for whom
                  warrants have been issued in the U.S."

                  The 9th Circuit upheld Wilson's ruling that Alvarez
can recover damages
                  only for the brief period--about 24 hours--that he was
detained in
                  Mexico, not for the 2 1/2 years he was in U.S.
custody.