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Over objections that the war on terrorism could be impeded, an en banc panel of the U.S. Court of Appeals for the 9th Circuit ruled June 3 that a Mexican man abducted at the behest of the DEA can sue for damages in a U.S. court. While under indictment for allegedly being present during the torture and murder of a federal agent, Dr. Humberto Alvarez-Machain was abducted from his office in Mexico, taken to the United States and handed over to the Drug Enforcement Administration. The 1990 operation was completed without the involvement of the Mexican government. But it is the broader implications of the case that captivated five dissenting judges, while a bare majority of six downplayed concerns that the decision will make the government’s ability to track down and detain terrorists internationally more difficult than it already is. “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,” 9th Circuit Judge M. Margaret McKeown wrote. “Our holding . . . is a limited one.” McKeown was joined by Chief Judge Mary Schroeder, Senior Judge Alfred Goodwin, and Judges Sidney Thomas, Raymond Fisher, and Richard Paez. The opinion drew separate dissents and some sharp words. “We are now in the midst of a global war on terrorism, a mission that our political branches have deemed necessary to conduct throughout the world, sometimes with tepid or even nonexistent cooperation from foreign nations,” Judge Diarmuid O’Scannlain wrote. “With this context in mind, our court today commands that a foreign national criminal who was apprehended abroad pursuant to a legally valid indictment is entitled to sue our government for money damages. “In doing so, and despite its protestations to the contrary, the majority has left the door open for the objects of our international war on terrorism to do the same.” O’Scannlain was joined in dissent by Judges Pamela Rymer, Andrew Kleinfeld, and Richard Tallman. Judge Ronald Gould wrote a separate dissent. Alvarez’s case has yo-yoed through the federal courts since 1990. A district court judge tossed the indictment because of the abduction. That decision was upheld by the 9th Circuit before the Supreme Court reversed, saying that it doesn’t matter how a defendant enters U.S. jurisdiction, even if the events may not comply with international law. After trial, U.S. District Judge Edward Rafeedie of Los Angeles entered a verdict of not guilty, saying the government’s case wasn’t supported by the evidence. Alvarez then sued his captors under the Alien Tort Claims Act and the government under the Federal Tort Claims Act. Last week’s ruling allows Alvarez to proceed on both counts, but limits his claims to the events leading up to his entry into the United States, whether or not it was forced. The DEA wanted Alvarez for his role in the 1985 torture and murder of Enrique Camarena, a DEA agent posted in Guadalajara. The Camarena murder made national headlines, but the kidnapping of Alvarez caused international outcry. The move was condemned by international rights organizations and several foreign heads of state. The 9th Circuit released its original, three-judge panel decision on Sept. 11, 2001. The direction the country has taken since that day was woven through last week’s opinion. Gould wrote separately to argue that the decision to arrest a suspect on foreign soil was a matter of foreign policy and that, under the political question doctrine, courts should not interfere. Perhaps in an effort to allay fears about the effect of the war on terrorism, four members of the majority penned a concurrence suggesting that Cabinet-level members of the executive branch have authority to effect just such an extra-territorial arrest. “Such a decision, involving political judgments and national risks of the highest order, is — with all due respect to those involved — well above the paygrade of those who approved the abduction of Alvarez here,” majority 9th Circuit Judge Fisher wrote in Alvarez-Machain v. United States. The decision also has implications for the Alien Tort Claims Act, which human rights lawyers have used to sue foreign despots and, more recently, U.S. corporations for their actions abroad. Later this month, the 9th Circuit will again sit en banc to interpret the act in a case involving the Unocal Corp.’s Burmese operations. O’Scannlain, one of the dissenting 9th Circuit judges last week, engaged in a lengthy dissection of the Alien Tort Claims Act, saying that after nearly 200 years of dormancy, the law is being read too broadly by judges who have “eagerly exploited the opportunity to revivify it.” This article was distributed by the American Lawyer Media News Service. Jason Hoppin is a reporter at The Recorder in San Francisco.

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