dismissing cross-border abduction claim, holding: “Because a human rights norm recognizing an individual’s right to be free from transborder abductions has not reached a status of international accord sufficient to render it ‘obligatory’ or ‘universal,’ it cannot qualify as an actionable norm under the [ATS]. This is a case where aspiration has not yet ripened into obligation.”
How later courts described this case
- dismissing cross-border abduction claim, holding: “Because a human rights norm recognizing an individual’s right to be free from transborder abductions has not reached a status of international accord sufficient to render it ‘obligatory’ or ‘universal,’ it cannot qualify as an actionable norm under the [ATS]. This is a case where aspiration has not yet ripened into obligation.”
- conducting a choice-of-law analysis under the FSIA by first balancing the relevant contacts and interests as between the United States and Mexico, and after finding the United States’ interests more weighty, conducting a choice-of-law analysis as between the federal common law and the law of California
- In applying section 6, the court stated that the United States’ interests there were “particularly pointed” because the U.S. was itself a party and its conduct was at issue.
- "[W]e agree with the three-judge panel's conclusion that the exemption does not apply here, and that the United States was properly substituted for the individual DEA agents.”
Written by the judges who cited it.
The opinion
FISHER, Circuit Judge,
with whom Chief Judge SCHROEDER and Circuit Judges GOODWIN, THOMAS, and PAEZ join, concurring:
I fully concur in the majority opinion, but write separately to articulate another ground on which I base my conclusion that Alvarez’s arrest and detention were arbitrary because they were conducted without lawful authority. As the majority opinion explains, whatever power the political branches might have to override the principle of territorial sovereignty, Congress has not expressed its intent to delegate that power to the Drug Enforcement Agency. I would add, moreover, that to the extent the Executive branch has the power to act without congressional sanction, there has been no showing that that power was properly invoked here.
It may well be, as the majority and the dissenting opinions assume, that the Executive — like Congress — has the authority to breach another nation’s sovereignty and override other norms of international law, should the need arise. It is evident, however, that neither Congress nor the Executive has expressed an intent to allow sub-Cabinet-level law enforcement officials in the DEA to be the final arbiters of that authority. The President, the Attorney General, the Secretary of State, perhaps the Secretary of Defense, the National Security Advisor — these are the proper Executive branch officials with whom to entrust the weighty decision to kidnap and arrest a suspect on friendly foreign soil. As Judge Gould acknowledges in his dissent, “the capture of a foreign national on foreign soil is no ordinary law enforcement choice; rather, it is a serious foreign policy decision,” as evidenced by the international outcry that occurred in the wake of Alvarez’s abduction. Such a decision, involving political judgments and national risks of the highest order, is — with all due respect to those involved — well above the pay-grade of those who approved the abduction of Alvarez here.
DEA Agent Hector Berrellez made the offer to pay Mexican nationals to apprehend Alvarez in Mexico and deliver him to the United States. Berrellez received authorization to make this offer from his superiors in the Los Angeles office of the DEA and from DEA Deputy Administrator Pete Graden in Washington, D.C. There is no evidence that anyone ranking higher than the DEA Deputy Administrator or the United States Attorney for the Central District of California explicitly approved the operation. 1
*643 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. Indeed, Judge Gould’s dissent is predicated on the notion that “extraordinary renditions” of suspects from foreign nations are such critical foreign policy decisions that they must be planned and coordinated at the highest levels of government. He would rob this notion of any force, however, by equating the DEA actors here with the upper echelon of the Executive branch.
The Chen case illustrates that the decision to engage in extraterritorial operations is beyond the discretion of law enforcement officers. In stark contrast to the abduction of Alvarez, the limited INS operation at issue in Chen — as the Chen opinion took pains to delineate — was carefully planned and subjected to high-level review and approval at various levels within the Department of Justice:
On August 21, 1991, the Undercover Operations Review Committee of the United States Department of Justice (Review Committee) authorized the INS agents to proceed with the proposed undercover operation involving the use of the Corinthian in international waters.
On August 27, the Review Committee considered a revised plan for the INS’s proposed undercover operation.... The Review Committee was aware that INS agents would conduct the undercover investigation in international waters when approval was given. The Review Corn-mittee guidelines specifically contemplate an INS “undercover operation [that] will be conducted substantially outside the United States.” INS Undercover Operation Guidelines at IV. A.(2). The operation was also approved by the United States Attorney for the Central District of California and an Assistant Attorney General in the Department of Justice, both of whom knew that the operation would be conducted in international waters.
Chen, 2 F.3d at 332. As we were careful to point out, the INS agents did not act on their own discretion but instead sought approval from numerous Department of Justice officials, “all of whom answer directly to the Attorney General herself.” Id. at 334.
The logic of the conclusion that federal law enforcement officers must obtain Cabinet-level authorization for making extraterritorial arrests finds persuasive expression, in fact, in a legal opinion issued by the Department of Justice’s own Office of Legal Counsel (“OLC”), legal advisor to the Attorney General and to the Executive branch generally. In 1989, Assistant Attorney General William P. Barr addressed the very questions we confront here, but in the context of the FBI’s authority “to investigate and arrest individuals for violating United States law, even if the FBI’s actions contravene customary international law.” 13 U.S. Op. Off. Legal Counsel 163 (1989) (“Barr Opinion”). The Barr Opinion contended — contrary to a previous 1980 OLC Opinion — that the FBI had such authority, either statutorily or at least through the Attorney General. Whatever weight the Barr Opinion merits, it did not endorse the FBI’s ability to act on its own *644 authority, but rather cautioned that the FBI may violate international law only “at the direction of the President or the Attorney General.” Id. at 183. Indeed, the Opinion was even more explicit, and cautionary, in its advice regarding the extent and exercise of authority “to override customary international law” in, for example, forcibly abducting a suspect from another country without that country’s consent. Id. at 180-81. The Barr Opinion advised in a prescient passage that:
[W]e believe that the Attorney General has the power to authorize departures from customary or other international law in the course of law enforcement activities and that the President need not personally approve such actions. We would not recommend, however, that the Attorney General delegate the authority to more subordinate officials. Even if he is viewed as exercising statutory authority ... we think that as a prudential matter the Attorney General should, in this case, exercise it personally. Decisions such as Garcia-Mir [v. Meese, 788 F.2d 1446 (11th Cir.1986)] rely on the theory that the .Executive has the constitutional authority to make political decisions affecting our international relations. To the extent that such decisions are made by officials below cabinet rank, however, the factual basis for this theory may be weaker.
Specifically, we recommend that any overseas law enforcement activity that presents a significant possibility of departing from customary or other international law be approved directly by the President or the Attorney General.
Id. at 180 (emphasis added).
Judge O’Scannlain’s dissent therefore misses the mark by repeatedly stating that Congress has delegated to the Attorney General the authority to determine whether to enforce our laws extraterritorially. Even if such a delegation has in fact occurred — which has not been demonstrated here — it would be of little import in this case, because there is no evidence that the Attorney General played a role in the decision to abduct Alvarez.
Given the absence of specific approval by the Attorney General or any other Cabinet-level official, Judge O’Scannlain argues that the DEA enjoys the more general statutory authority to make extraterritorial arrests on its own accord. In support of this contention, he relies on Chen, claiming that the DEA’s authority to act extraterritorially is the same as that of the INS. The critical distinction, however, is that the Attorney General has explicitly delegated to the INS his broad powers to enforce the immigration laws. 2 See 8 C.F.R. § 2.1 . In the case of the DEA, the Attorney General has made no such delegation.
Judge O’Scannlain’s dissent urges that this lack of an explicit delegation does not matter because Congress has authorized the extraterritorial application of the criminal statutes for which Alvarez was charged, and this authorization “would seemingly sanction” the extraterritorial enforcement of those statutes. The extraterritorial application and the extraterritorial enforcement of criminal statutes are far from synonymous concepts, however. That Congress may have intended a criminal statute to reach conduct that occurs beyond our borders, and that United States courts would have jurisdiction over such crimes, does not mean that Congress also intended to give law enforcement offi *645 cers unlimited authority to enforce the statute by entering a foreign nation, uninvited, to abduct a foreign national, in violation of international law. Indeed, that is why we enter into extradition treaties. It is therefore not enough to say, as Judge O’Scannlain contends, that “Congress must have intended to have the laws enforced [extraterritorially] by some member of the Executive branch,” for even if Congress did so intend, I cannot conclude that Congress silently designated the DEA officials, rather than the Attorney General, as the Executive branch officials to whom it was entrusting the decision to engage in extraterritorial law enforcement.
In the wake of the brutal murder of DEA Agent Camarena, the Drug Enforcement Administration understandably wanted to capture and punish those who were responsible for the death of one of its own. But in the absence of congressional delegation of the authority to override another nation’s territorial sovereignty — an absence that the majority opinion has amply demonstrated — the decision to sneak into a friendly nation and abduct one of it citizens, in violation of international law, was not for the DEA to make. That decision belonged to the Attorney General and other members of the Cabinet, if not to the President himself. Because the highest levels of the Executive branch played no role in planning or authorizing Alvarez’s abduction, and because Congress has not granted the DEA the more general authority to conduct extraterritorial law enforcement activities, I agree that the arrest and detention of Alvarez were arbitrary because they were not “pursuant to law.” Alvarez therefore has established a violation of the law of nations that is actionable under the ATCA.
. There are some indications that individuals in the Attorney General’s office were informed of the plan. At an evidentiary hearing before the district court on Alvarez’s motion to dismiss the indictment in his criminal case, Berrellez testified that he believed that the Attorney General’s office had been “consulted” about the operation. See United States v. Caro-Quintero, 745 F.Supp. 599, 603 (C.D.Cal.1990). Berrellez did not, however, explain the basis for this belief; nor did he claim that the Attorney General’s office gave its approval for the operation upon consulting with the DEA.
The only other evidence suggesting that the Attorney General’s office might have been informed of the operation is an anonymous memorandum entitled "Operation Leyenda: Chronology” that the United States produced during discovery. According to the memorandum, whose origin is unclear, the United States Attorney’s Office in Los Angeles approved the kidnapping plan, the DEA Administrator was "advised of the general plan, and he in turn advise[d] the Executive Assistant to the Attorney General.” However, DEA Administrator John C. Lawn testified at his deposition that he had no advance knowledge of the plan to use Mexican nationals to apprehend Alvarez, and the United States denied Alvarez’s request for admission that Lawn approved the operation. The assertions contained in Berrellez’s testimony and in the memorandum are therefore unsupported by the evidence. Even if we were to accept the assertions as true, however, they indicate *643 nothing more than that the Attorney General’s office had knowledge of the operation. They do not support the further conclusion that the Attorney General explicitly sanctioned Alvarez's extraterritorial abduction.
. Moreover, as I explained earlier, the INS agents who planned the operation in Chen sought high-level approval from the Department of Justice despite this general delegation of the Attorney General’s authority.