Alvarez-Machain v. United States

GOULD, Circuit Judge,

dissenting:

I respectfully dissent because this ease presents a nonjusticiable political question requiring scrutiny of an executive branch foreign policy decision. The majority passes judgment on an executive branch decision to act against foreign nationals on foreign soil in a matter directly affecting the United States’s relations with a foreign nation. 1 Because our Constitution entrusts the conduct of our nation’s foreign policy to Congress and to the executive branch, this case poses a political question decidedly inappropriate for judicial review.

The Supreme Court has held that certain allegations of illegal government action should not be ruled on by the federal courts even though all jurisdictional requirements are met. The Court has said that decision in these areas should be left to the politically accountable branches of government, the executive branch and Congress. The reasons for this political question doctrine have been variously described, 2 but, at its core, the political question doctrine represents the judiciary’s wise recognition that the structure of our Constitution, its separation of powers, requires judicial restraint when certain subjects are at issue.

The Supreme Court in Baker v. Carr made the classic statement of the considerations that animate the political question doctrine:

Prominent on the surface of any ease held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or an unusual need or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

369 U.S. 186, 217 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962). The Court held that any one of the above-listed characteristics may be süfficient to preclude judicial review. Id.

Most significantly for this case, the Court has held that the considerations described in Baker v. Carr bar judges from reviewing the executive branch’s foreign policy decisions:

*660 [T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil.

Chicago & S. Airlines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 , 68 S.Ct. 431 , 92 L.Ed. 568 (1948). See also Oetjen v. Central Leather Co., 246 U.S. 297, 302 , 38 S.Ct. 309 , 62 L.Ed. 726 (1918) (“The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislature,] ‘the political’ Departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.”); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315 , 57 S.Ct. 216 , 81 L.Ed. 255 (1936) (holding nonjusticiable the question of the legality of a congressional resolution because “[t]he whole aim of the resolution [was] to affect a situation entirely external to the United States, and falling within the category of foreign affairs”). In other words, judges should not interfere in the management of our nation’s foreign policy by opining (as the majority opines) on the executive’s foreign policy decisions.

The DEA officials’ decision to abduct Alvarez from Mexico without the Mexican government’s permission was an executive foreign policy decision. Soon after a federal grand jury indicted Alvarez for murder, DEA officials negotiated with Mexican government officials for Alvarez’s capture. When those negotiations proved unsuccessful, DEA officials decided it would be in the United States’s interest to accomplish Alvarez’s capture by means other than extradition. The officials’ decision was consistent with a United States policy, formally announced in 1989, that it was permissible for law enforcement agencies such as the DEA to apprehend individuals accused of violating United States criminal law in foreign states without the consent of the foreign state. Barry E. Carter & Phillip R. Trimble, International Law 794 (3d ed. 1999).

The foreign-policy nature of the DEA officials’ decision to order Alvarez’s capture in Mexico is amply demonstrated by the world’s response to the incident. Mexico requested an official report on the role of the United States in the abduction and later sent diplomatic notes of protest from its embassy to the United States Department of State. Mexico also requested the arrest and extradition of the American law enforcement agents allegedly involved in the abduction. After the United States Supreme Court declined to invalidate Alvarez’s capture, twenty-one member states of the Ibero-American Conference argued before the United Nations General Assembly that the extraterritorial exercise of criminal jurisdiction through the" use of unilateral measures of coercion, such as abductions, violates the law of nations. Virginia Morris & M.-Christiane Bourloyannis-Vrailas, The Work of the Sixth Committee at the Forty-Eighth Session of the UN General Assembly, 88 Am. J. Int’l L. 343, 357 (1994). The Iranian Parliament passed a draft law giving the president of Iran the right to arrest Americans who take action against Iranian citizens or property anywhere in the world and to bring them to Iran for trial. Carter and Trimble, supra, at 794. The Canadian Minster of External Affairs told the Canadian Parliament that any attempt by the United States to kidnap someone in Canada would be regarded as a criminal act and a violation of the U.S.-Canada extradition treaty. Id. at 792. The lower house of *661 Uruguay’s parliament voted that the United States’s policy of unilaterally abducting foreign nationals showed “a lack of understanding of the most elemental norms of international law, and in particular an absolute perversion of the function of extradition treaties.” Id. The presidents of Argentina, Bolivia, Brazil, Chile, Paraguay, and Uruguay issued a declaration expressing their concern. Id. These are only a few of the dozens of acts of diplomatic protest to the United States’s policy of extraterritorial abduction, of which Alvarez’s capture was the first well-publicized example.

The international response to Alvarez’s capture was predictable, and executive officials may well have weighed it in determining whether to order that action. If the capture were merely an “exercise of the executive’s law enforcement powers,” as the majority suggests, rather than a foreign policy decision, the capture would not have become an international diplomatic incident. Indeed, the foreign-policy ramifications of international abduction have been well-known for decades, at least since the United Nations Security Council determined in 1960 that Israeli agents’ abduction of the Nazi war criminal Adolf Eichmann from Argentina violated that country’s sovereignty. Mary Alice Kovac, Apprehension of War Crimes Indictees: Should the United Nations’ Courts Outsource Private Actors to Catch Them?, 51 Cath. U.L. Rev. 619, 631 (2002).

The foreign-policy nature of the decision to capture Alvarez is also demonstrated by the executive branch’s policies governing this type of arrest. Executive branch officials have told Congress that agents follow

procedures designed to ensure that U.S. law enforcement activities overseas fully take into account foreign relations and international law. These procedures require that decisions as to extraordinary renditions from foreign territories be subject to full inter agency coordination and that they be considered at the highest levels of the government.

Carter and Trimble, supra, at 794. The Department of Justice has codified these special foreign-policy procedures in its United States Attorneys’ Manual:

Due to the sensitivity of abducting defendants from a foreign country, prosecutors may not take steps to secure custody over persons outside the United States (by government agents or the use of private persons, like bounty hunters or private investigators) by means of Alvarez-Machain type renditions without advance approval by the Department of Justice. Prosecutors must notify the Office of International Affairs before they undertake any such operation.

Department of Justice, United States Attorneys’ Manual, § 9-15.610 (1997). These executive branch procedures demonstrate that the capture of a foreign national on foreign sod is no ordinary law enforcement choice; rather, it is a serious foreign policy decision.

The DEA officials’ decision to order the capture of a foreign national on foreign soil involved delicate foreign policy questions: Did the need to prosecute Alvarez for the torture and murder of an American official justify the United States’s taking actions that might offend Mexico’s government? Did 7316 the desire to send a tough message to foreign governments and drug cartels 3 justify the United States’s taking actions that might offend other nations’ conceptions of international law? *662 Did the benefits to the United States of ordering Alvarez’s capture outweigh any potential diplomatic or trade retaliation Mexico might take?

These questions, and other questions DEA officials may have considered (some of them beyond a judge’s imagining), are beyond the competence and jurisdiction of federal judges. Unlike DEA officials, federal judges do not negotiate with foreign officials on behalf of the United States. Federal judges do not seek to influence foreign governments to accomplish the United States’s policy objectives. Federal judges do not specialize in combating the international drug trade. Federal judges do not routinely work with the State Department. Federal judges do not commonly maintain relationships with overseas officials. Federal judges do not possess special training or. knowledge relevant to drug interdiction on foreign soil.

Despite these deficits, the majority passes judgment on the executive branch’s conduct of its constitutionally assigned responsibility. In doing so, the majority interferes with a delicate and complex decision “of a kind for which the Judiciary has neither aptitude, facilities nor responsibility.” Waterman, 333 U.S. at 111 , 68 S.Ct. 431 . See also Baker, 369 U.S. at 211 , 82 S.Ct. 691 (noting that foreign policy issues “frequently turn on standards that defy judicial application or involve the exercise of a discretion demonstrably committed to the executive or legislature”).

The majority’s decision injects a new and worrisome factor into executive officials’ foreign policy calculus. Executive officials now must consider not only the international implications of their decisions, but also the possibility that federal judges, and eventually juries, 4 will disapprove of their management of the nation’s foreign policy. When executive officials consider whether to order action on foreign soil, they should properly weigh the possibility of diplomatic protests, international friction, and trade sanctions. They should not be required also to weigh the possibility of tort lawsuits by foreign nationals seeking punitive damages in their own nation’s courts. They should not be required to consider the possible embarrassment such lawsuits will entail for them or for the United States. The majority’s error allows the fear of tort lawsuits to taint officials’ already complicated foreign policy analysis. Cf. Johnson v. Eisentrager, 339 U.S. 763, 789 , 70 S.Ct. 936 , 94 L.Ed. 1255 (1950) (“Certainly it is not the function of the Judiciary to entertain private litigation—even by a citizen—which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region.”).

The majority’s second-guessing of the executive branch’s decision to capture Alvarez is also unseemly in that it prevents our government from speaking with a single voice on an important foreign policy decision. This feature of the majority decision is inconsistent with the Supreme Court’s Baker v. Carr decision, which identified “multifarious pronouncements by various departments on one question” as an evil against which the political question doctrine guards. See Baker, 369 U.S. at 217 , 82 S.Ct. 691 . See also id. at 211 , 82 S.Ct. 691 (noting that foreign policy questions “uniquely demand single-voiced *663 statement of the Government’s views”). By effectively taking the side of Mexico in this international dispute, the majority invades the province of the executive branch and embarrasses the United States on the international stage. The majority decision undermines not only the United States’s foreign policy objectives, but also the unelected judiciary’s fragile legitimacy with the American public.

The majority makes an unconvincing effort to limit its decision’s scope. 5 Despite that effort, the grave implications of the majority decision are plain. By holding that federal courts can review for compliance with international law executive branch decisions to act against foreign nationals on foreign soil, the majority transforms the executive branch’s foreign policy decisions into occasions for judicial review. The detention and interrogation of suspected terrorists in Afghanistan; the bombing of Iraq; intelligence gathering around the world — under the majority’s holding, these and other foreign policy actions may be the next subject of federal court litigation. The majority unintentionally licenses the United States’s enemies, or those who desire to embarrass the United States, to use the federal courts for the purpose of propaganda or to accomplish more insidious ends. This use of the federal courts is altogether inappropriate, and the political question doctrine should guard against it.

The Supreme Court’s past decisions in cases implicating foreign policy underscore the need to dismiss this case because it presents a nonjusticiable political question. The Supreme Court has held that it is improper for a court to review the executive’s recognition of a foreign government, Oetjen, 246 U.S. at 302 ; to review the executive’s determination that an individual claiming immunity possess diplomatic status, In re Baiz, 135 U.S. 403, 432 , 10 S.Ct. 854 , 34 L.Ed. 222 (1890); to review the executive’s determination that a ship owned by a foreign nation is immune from in rem jurisdiction, Ex Parte Peru, 318 U.S. 578, 588-89 , 63 S.Ct. 793 , 87 L.Ed. 1014 (1943); to review the constitutionality of an undeclared war, Atlee v. Richardson, 411 U.S. 911, 911 , 93 S.Ct. 1545 , 36 L.Ed.2d 304 (1973) (affirming, without opinion, Atlee v. Laird, 347 F.Supp. 689, 705-07 (E.D.Penn.1972)); to review the political branches’ decision to prohibit arms sales to certain countries, Curtiss-Wright, 299 U.S. at 315, 329 , 57 S.Ct. 216 ; to review the executive’s assignment of foreign air routes, Waterman, 333 U.S. at 113-14 , 68 S.Ct. 431 ; to review the political branches’ determinations of when hostilities on foreign soil began or ended, Ludecke v. Watkins, 335 U.S. 160, 167-69 , 68 S.Ct. 1429 , 92 L.Ed. 1881 (1948); and, most relevant to this case, to judge whether the executive acted unlawfully in sending American troops to foreign soil. Eisentrager, 339 U.S. at 788-89 , 70 S.Ct. 936 .

An exercise of jurisdiction by federal courts in these cases deemed nonjusticia-ble by the Supreme Court — like the majority’s exercise of jurisdiction in this case— would have divided our nation’s government, pitting the judiciary against the political departments in matters involving our nation’s conduct of foreign affairs. The majority’s holding today that courts may review executive branch decisions to act against foreign nationals on foreign soil for compliance with international law poses *664 at least as great a threat to our nation’s foreign policy as did judicial review in the cases described above. 6 The Supreme Court, for more than a century, has consistently rejected the attempts of interested litigants to use the federal courts as a weapon against the political branches’ conduct of foreign affairs. It is unfortunate that the majority does not likewise recognize this restraint on our judicial power.

The Supreme Court’s cases on the non-justiciability of foreign policy decisions are not the only Supreme Court pronouncements that require us to reject Alvarez’s lawsuit. The Supreme Court’s enumeration in Baker v. Carr of the considerations relevant to determining whether a case presents a political question also requires dismissal. First, the majority’s review of the executive branch decision to capture Alvarez ignores our Constitution’s commitment of foreign policy decisions to Congress and the executive. See Baker, 369 U.S. at 217 , 82 S.Ct. 691 (referring to “commitment of the issue to a coordinate political department” and a “policy determination of a kind clearly for nonjudicial discretion”). Second, it ignores the fact that federal judges lack the knowledge or training or tools to decide when such action is appropriate for the United States’s foreign policy. See id. (referring to “a lack of judicially discoverable and manageable standards”). Third, it shows disrespect for the executive branch’s management of foreign policy. See id. (referring to “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government”). Fourth, it causes our government to speak with inconsistent voices about an issue on which our government should speak with one voice. See id. (referring to “the potentiality of embarrassment from multifarious pronouncements by various departments on one question” and “an unusual need for unquestioning adherence to a political decision already made”).

Any one of the Baker v. Carr considerations is sufficient to render a case nonjusticiable. Id.; Made in the USA Found. v. United States, 242 F.3d 1300 , 1312 (11th Cir.2001). In this case, all of the Baker v. Carr considerations weigh sharply in favor of nonjusticiability. The majority errs by deciding the merits of this case. 7

Human nature being what it is, and judicial nature following human nature, it is only natural that well-meaning judges will desire to comment on important affairs of the day involving political relations with other nations. 8 But if the judiciary is to preserve its legitimacy, to show the respect due coordinate branches of government, and to avoid interfering in our nation’s foreign relations, judges must show more restraint than the majority shows today. If ever there was a case in which the Supreme Court should revisit the polit *665 ical question doctrine and limit judicial interference in questions “in their nature political,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 , 2 L.Ed. 60 (1803), this is that case. 9

. Alvarez’s apprehension by Mexican nationals was directed by the Drug Enforcement Administration (DEA), acting under authority delegated from the Attorney General

. The political question doctrine minimizes judicial intrusion into the operations of the other branches of government. See Gilligan v. Morgan, 413 U.S. 1, 7 , 93 S.Ct. 2440 , 37 L.Ed.2d 407 (1973). It limits the courts’ role in a democratic society. Alexander Bickel, The Least Dangerous Branch 184 (1962). It preserves the courts' legitimacy. Baker v. Carr, 369 U.S. 186, 267 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962) (Frankfurter, J., dissenting). And it allocates decisions to the branches of government that have superior expertise. See Fritz Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale L.J. 517 , 567 (1966).

. Alan J. Kreczko, then Deputy Legal Adviser to the State Department, told Congress that some foreign governments "noted in private that [the United States policy of apprehending criminals overseas] will cause narcotics traffickers to have an increased fear of apprehension by the United States.” Carter and Trim-ble, supra, at 794. Executive officials may *662 have weighed this potential benefit to the United States when deciding whether to order Alvarez's capture on Mexican soil.

. We should be concerned with the possibility that parties will urge juries with no foreign policy expertise to "send a message” to the United States government that particular foreign policy actions violate international norms of civilized conduct, as advanced by self-interested advocates. This is no way to conduct a foreign policy.

. Perhaps recognizing the manifold difficulties its decision creates, the majority attempts to limit its holding by reciting that it “does not speak to the authority of other enforcement agencies or the military, nor to the capacity of the Executive to detain terrorists or other fugitives under circumstances that may implicate our national security interests.” I am concerned that the line the majority tries to draw in limiting its decision is more illusory than real.

. This case should have been dismissed not only as to the United States and the DEA agent defendant, but also as to Francisco Sosa, for he was acting under the direction of the United States, and it would be difficult to decide the propriety of his actions without commenting on the propriety of the executive's actions.

. If I am mistaken that this case must be dismissed as presenting a non-justiciable political question, then I agree with Judge O’Scannlain's dissenting opinion that federal law authorized the DEA agents’ conduct. See supra at 645 (en banc) (O’Scannlain, J., dissenting).

. It is not surprising that judges would want to promote the rule of law, including international law, particularly if they can have the last word on what that law requires. But that is no justification for an improvident exercise of an essentially political power concerning foreign affairs. The failure of my colleagues in the majority to address the political question doctrine, and the modest attention given it by my colleagues in dissent, see supra at 646-647 n. 2 (O'Scannlain, J., dissenting), *665 might be explained by the government’s failure to raise this issue. However, because the political question doctrine affects our jurisdiction, and because the political implications of this case for executive branch actions on foreign soil affecting relations with foreign nations are grave and apparent, I believe the issue must be considered sua sponte and fronted. Of course, it is not too late for the government, in seeking corrective review by petition for writ of certiorari, to advance the position that the political question doctrine precludes jurisdiction.

. Even if this case did not present a nonjusticiable political question, it still should have been dismissed in part for lack of jurisdiction because the United States has not waived its sovereign immunity from lawsuits based upon the "discretionary functions” of government employees. See 28 U.S.C. § 2680 (a). Because DEA officials’ decision to order Alvarez's capture involved an element of judgment or choice based on considerations of public policy, United States v. Gaubert, 499 U.S. 315, 322-23 , 111 S.Ct. 1267 , 113 L.Ed.2d 335 (1991), it was a discretionary function that cannot be the subject of litigation against the United States. This jurisdictional flaw is not waivable, so the parties’ failure to argue it does not justify our not considering it. See, e.g., In re Di Giorgio, 134 F.3d 971, 974 (9th Cir.1998). The claims against the United States and its employees could not proceed. The United States’s sovereign immunity would not, however, prevent our exercising jurisdiction over Alvarez's claims against Sosa.