Appendix — United States v. Alvarez-Machain

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In the Supreme Court of the Gnited States

UNITED STATES OF AMERICA, PETITIONERS

v.

HUMBERTO ALVAREZ-MACHAIN, ET AL., RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI

TO TRE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

Solicitor General

Counsel of Record

STUART E. SCHIFER

Acting Assistant Attorney

General

PAUL D. CLEMENT

Deputy Solicitor General

JEFFREY A. LAMKEN

Assistant to the Solicitor

General

DOUGLAS N. LETTER

BARBARA L. HERVIG

ROBERT M. LOEB

Attorneys

Department of Justice

Washingion, D.C. 20530-0001

(202) 514-2217

TABLE OF CONTENTS

Page

Appendix A (court of appeals en banc opinion, filed June 3,

SUED cxnscensernsnssiensssnnsnentensumnenemsesseassemeevmntemmnenennsenesmmnasegsnees la

Appendix B (court of appeals panel opinion, filed Sept. 11,

en abieiatenanieediteiasdmemaneenein 122a

Appendix C (district court order, filed Mar. 18, 1999) ............ 157a

Appendix D (district court order, filed May 18, 1999) ............ 208a

Appendix E (district court judgment, filed Sept. 9, 1999 ....... 212a

Appendix F (amended judgment, filed Sept. 23, 1999 ............ 248a

Appendix G (statutory provisions) ..............:s::csesessesesseseseeeeseees 250a

(I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 99-56762, 99-56880

HUMBERTO ALVAREZ-MACHAIN, PLAINTIFF-

APPELLANT

Vv.

UNITED STATES OF AMERICA; HECTOR BERELLEZ;

BILL WATERS; PETE GRUDEN; JACK LAWN;

ANTONIO GARATE-BUSTAMANTE; FRANCISCO SOSA,

AND FIVE UNNAMED MEXICAN NATIONALS CURRENTLY

IN THE FEDERAL WITNESS PROTECTION PROGRAM,

DEFENDANTS-APPELLEES

HUMBERTO ALVAREZ-MACHAIN, PLAINTIFF-APPELLEE

v. e

FRANCISCO SOSA, AND FIVE UNNAMED MEXICAN

NATIONALS CURRENTLY IN THE FEDERAL WITNESS

PROTECTION PROGRAM, DEFENDANT-APPELLANT

Argued and Submitted: June 11, 2001

Panel Opinion Filed: Sept. 11, 2001

Rehearing En Banc Granted: March 20, 2002

Argued and Submitted En Banc: June 18, 2002

Filed: June 3, 2003

Appeal from the United States District Court

for the Central District of California;

Stephen V. Wilson, District Judge,

Presiding. D.C. No. CV-93-04072-SV W-06

(la)

2a

Before: SCHROEDER, Chief Judge, GOODWIN,

O’SCANNLAIN, RYMER, KLEINFELD, THOMAS,

McKEOWN, FISHER, GOULD, PAEZ and TALLMAN,

Circuit Judges.

Opinon by Judge MCKEown; Concurrence by Judge

FISHER; Dissent by Judge O’SCANNLAIN; Dissent by

Judge GOULD. °

OPINION

McKEOWN, Circuit Judge.

We must decide whether the forcible, transborder

abduction of a Mexican national, Humberto Alvarez-

Machain (“Alvarez”), by Mexican civilians at the behest

of the Drug Enforcement Administration (the “DEA”)

gives rise to a civil claim under United States law. In

an earlier, related proceeding, the Supreme Court

acknowledged, without deciding, that Alvarez “may be

correct” in asserting that his abduction was “shocking”

and “in violation of general international law princi-

ples.” United States v. Alvarez-Machain, 504 U.S. 655,

669, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992). We now

address the question left unanswered—whether there

was a “violation of the law of nations,” a predicate to

federal court jurisdiction under the Alien Tort Claims

Act (“ATCA”), 28 U.S.C. § 1350. We also consider

whether the Federal Tort Claims Act (“FTCA”), 28

U.S.C. §§ 1346(b)(1), 2671-2680, provides a remedy for

this cross-border abduction.

In 1990, Mexican citizens acting on behalf of the DEA

kidnapped Alvarez from his office in Mexico for his

alleged involvement in the kidnapping and murder of an

American DEA agent in Mexico. The arrest of Alvarez

took place without an extradition request by the United

3a

States, without the involvement of the Mexican judici-

ary or law enforcement, and under protest by Mexico.

Alvarez was brought to the United States, stood trial

on criminal charges, and was acquitted. He then sued

his former captors, the United States, and the DEA

agents, asserting a panoply of common law and consti-

tutional torts arising from his abduction.

This case, which has been litigated in one form or

another for more than a decade, involves important

issues of international law and sovereignty. It also

implicates our country’s relations with Mexico, our

neighbor to the South and an important ally and trading

partner. The questions it raises, particularly with

regard to the Executive’s power to carry out law en-

forcement operations abroad, perhaps resonate to a

broader audience today than when the case began. In

the midst of contemporary anxiety about the struggle

against global terrorism, there is a natural concern

about the reach and limitations of our political branches

in bringing international criminals to justice.

But we need not delve into the legal quagmire of

apprehending terrorists or even resolve many of the

complex issues spawned by this international abduction

dispute. Nor is it within our province to address the

policy and diplomatic issues associated with trans-

border kidnapping. Rather, this appeal presents only

the narrow question whether Alvarez has a remedy at

law under the ATCA and the FTCA for a violation of

the “law of nations.”

More precisely, we must determine the statutory

authority of a single federal agency—the DEA—to

make a warrantless arrest outside the borders of the

United States and, if the agency lacks that authority,

whether Alvarez has a remedy at law under the ATCA

4a

or the FTCA. After a careful review of the relevant

statutes, we conclude that the DEA had no authority to

effect Alvarez’s arrest and detention in Mexico, and

that he may seek relief in federal court.

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.

Our holding today, that Alvarez may pursue civil reme-

dies for actions taken against him more than ten years

ago by the DEA and its agents, is a limited one. 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. The Fourth Circuit recently underscored this

distinction when it recognized, in approving the deten-

tion of an American citizen captured abroad and

designated as an “enemy combatant,” that it was “not

. . . dealing with a defendant who has been indicted on

criminal charges in the exercise of the executive’s law

enforcement powers” but rather “with the executive’s

assertion of its power to detain under the war powers of

Article II.” Hamdi v. Rumsfeld, 316 F.3d 450, 473 (4th

Cir. 2003). We, by contrast, are dealing with the

former, not the latter.

BACKGROUND

In February 1985, DEA Special Agent Enrique

Camarena-Salazar (“Camarena”) was abducted and

brought to a house in Guadalajara, Mexico, where he

was tortured and murdered. Alvarez, a Mexican citizen

and a medical doctor who practices in Guadalajara, was

present at the house. |

5a

Five years after Camarena’s death, a federal grand

jury in Los Angeles indicted Alvarez for participating

in the scheme, and the United States District Court for

the Central District of California issued a warrant for

his arrest. The United States negotiated with Mexican

government officials to take custody of Alvarez, but

made no formal request to extradite him. Instead,

DEA headquarters in Washington, D.C., approved the

use of Mexican nationals, who were not affiliated with

either government, to arrest Alvarez in Mexico and to

bring him to the United States.

The DEA agent in charge of the Camarena murder

investigation, Hector Berellez (“Berellez”), with the ap-

proval of his superiors in Los Angeles and Washington,

hired Antonio Garate-Bustamante (“Garate”), a Mexi-

can citizen and DEA operative, to contact Mexican

nationals who could help apprehend Alvarez. Through

a Mexican intermediary, Ignacio Barragan (“Barra-

gan”), Garate arranged for Jose Francisco Sosa

(“Sosa”), a former Mexican policeman, to participate in

Alvarez’s apprehension. Barragan told Sosa that the

DEA had obtained a warrant for Alvarez’s arrest,

would pay the expenses of the arrest operation, and, if

the operation was successful, would recommend Sosa

for a position with the Mexican Attorney General’s

Office.

On April 2, 1990, Sosa and others abducted Alvarez

from his office and held him overnight at a motel. The

next day, they flew him by private plane to El Paso,

Texas, where federal agents arrested him. Alvarez was

later arraigned and transported to Los Angeles for

trial. He remained in federal custody from April 1990

until December 1992.

6a

Alvarez moved to dismiss the indictment, arguing

that the federal courts lacked jurisdiction to try him

because his arrest violated the United States-Mexico

Extradition Treaty. Both the district court and this

court agreed, see United States v. Alvarez-Machain

(“Alvarez-Machain I”), 946 F.2d 1466, 1466-67 (9th Cir.

1991) (per curiam), aff’g United States v. Caro-Quin-

tero, 745 F. Supp. 599 (C.D. Cal. 1990), but the Supreme

Court reversed and remanded the case for trial. See

United States v. Alvarez-Machain (“Alvarez-Machain

II”), 504 U.S. at 669-70, 112 S. Ct. 2188.

The Supreme Court held that Alvarez’s arrest did

not violate the United States-Mexico Extradition

Treaty. Applying the doctrine announced in Ker v.

Illinois, 119 U.S. 486, 7 S. Ct. 225, 30 L.Ed. 421 (1886),

the Court held that a court retains its power to try a

person for a crime even where the person has been

brought within the court’s jurisdiction by forcible

abduction. Alvarez-Machain II, 504 U.S. at 670, 112 S.

Ct. 2188. Significantly, however, the Court noted that

Alvarez’s abduction “may be in violation of general

international law principles” and did not foreclose

Alvarez from later pursuing a civil remedy. See id. at

669, 112 S. Ct. 2188; see also Ker, 119 U.S. at 444, 7S.

Ct. 225 (stating that “[tJhe [kidnapped] party himself

would probably not be without redress, for he could sue

[the kidnapper! in an action of trespass and false

imprisonment, and the facts set out in the plea would

without doubt sustain the action”).

Following the Supreme Court’s ruling, the case pro-

ceeded to trial in 1992. After the presentation of the

government’s case, the district judge granted a motion

for judgment of acquittal on the ground that the gov-

ernment had adduced insufficient evidence to support a

7a

guilty verdict. The court concluded that the case

against Alvarez was based on “suspicion and .

hunches but . . . no proof,” and that the government’s

theories were “whole cloth, the wildest speculation.”

In 1993, after returning to Mexico, Alvarez filed this

action against Sosa, Garate, five unnamed Mexican ci-

vilians, the United States, and four DEA agents. The

amended complaint alleged a number of conventional

and constitutional torts.’

The district court substituted the United States for

the DEA agents, except Sosa and Garate, on all non-

constitutional claims. The parties later stipulated to

the substitution of the United States for Garate. Sosa’s

interlocutory appeal on the substitution motion was

dismissed for lack of appellate jurisdiction. See

Alvarez-Machain v. United States (“Alvarez-Machain

IIT”), 107 F.3d 696, 700 n.2 (9th Cir. 1997) (as amended).

In Alvarez-Machain III, we also affirmed the district

court’s dismissal of the constitutional claims arising out

of harms suffered by Alvarez in Mexico, the denial of

the DEA agents’ defense based on qualified immunity,

and the denial of the United States’ defense that the

FTCA claims were time-barred. We reversed the dis-

trict court’s dismissal of a claim under the Torture Vic-

' Specifically, Alvarez alleged the following conventional tort

claims: (1) kidnapping; (2) torture; (3) cruel, inhuman, and degrad-

ing treatment or punishment; (4) arbitrary detention; (5) assault

and battery; (6) false imprisonment; (7) intentional infliction of

emotional distress; (8) false arrest; (9) negligent employment; and

(10) negligent infliction of emotional distress. Alvarez alleged con-

stitutional torts under the Fourth, Fifth, and Eighth Amendments

for the acts of kidnapping, torture, cruel and inhuman and degrad-

ing treatment or punishment, denial of adequate medical treat-

ment, and arbitrary detention.

8a

tims Protection Act of 1991, Pub. L. No. 102-256, 106

‘Stat. 73. 107 F.3d at 703-04.”

Upon remand, the district court entered summary

judgment for Alvarez on his claims against Sosa for

kidnapping and arbitrary detention under the ATCA.

The court held that both state-sponsored, transborder

abductions and arbitrary detentions violated customary

international law.’ The court granted summary judg-

ment to the United States, however, on Alvarez’s

FTCA claims, concluding that Alvarez’s apprehension

was privileged and was not a false arrest under

California law.

These rulings left for resolution the question of

Sosa’s liability on the remaining tort claims, as well as

the calculation of damages on the kidnapping and

arbitrary detention claims. After a bench trial, the

district court found for Sosa on all remaining claims and

held that Alvarez could recover damages under the

ATCA only for his detention in Mexico prior to his

arrival in the United States. The court applied federal

common law, rather than Mexican law, for the calcula-

tion of damages and awarded Alvarez $25,000.

These consolidated appeals followed. Sosa appeals

the judgment against him, claiming that the district.

court erred in allowing a cause of action under the

ATCA and in applying federal common law, rather than

Mexican law, for the calculation of damages. On the

2 The constitutional claims under Bivens v. Six Unknown

Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619

(1971), and the Torture Act claim are no longer at issue.

3 The district court found that a third claim brought by Alvarez

under the ATCA for cruel, inhuman, and degrading treatment was

barred by the law of the case.

9a

ATCA claims, Alvarez appeals the district court’s sub-

stitution of the United States for the DEA agents and

the limitation of damages to those suffered during his

imprisonment in Mexico. He also appeals the dismissal

of his FTCA claims.

A three-judge panel of this court affirmed Sosa’s

liability on the ATCA claims, upheld the substitution

and damages rulings under ATCA, and reversed the

dismissal of Alvarez’s FTCA claims. Alvarez-Machain

v. United States (“Alvarez-Machain IV”), 266 F.3d

1045, 1064 (9th Cir. 2001), reh’g en banc granted, 284

F.3d 1039, 1040 (9th Cir. 2002).

DISCUSSION

I. ALIEN TORT CLAIMS ACT—JURISDICTION AND

CAUSE OF ACTION

The ATCA provides that “{t]Jhe district courts shall

have original jurisdiction of any civil action by an alien

for a tort only, committed in violation of the law of

nations or a treaty of the United States.” 28 U.S.C.

§ 1350. Although enacted in 1789 as part of the first

Judiciary Act, the ATCA received little attention until

1980, when the Second Circuit, in a comprehensive

analysis of the statute, held that the ATCA provided

subject matter jurisdiction over an action brought by

Paraguayan citizens for torture—a violation of the law

* In 1975, Judge Friendly remarked that the statute had been

invoked so rarely since its inception that it existed as “a kind of

legal Lohengrin; although it has been with us since the first Judi-

ciary Act . . . no one seems to know whence it came.” JIT v.

Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (noting the paucity

of cases under the Act and holding that no jurisdiction existed un-

der the Act for fraud and securities claims against foreign corpora-

tions).

10a

of nations—committed in Paraguay. See Filartiga v.

Pena-Irala (Filartiga I), 630 F.2d 876 (2d Cir. 1980).

Since the Filartiga I decision, the ATCA has been

invoked in a variety of actions alleging human rights

violations. See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844

(11th Cir. 1996) (affirming judgment under ATCA

against former Ethiopian official for torture and cruel,

inhuman, and degrading treatment); Kadic v. Karadzic,

70 F.3d 232 (2d Cir. 1995) (concluding that alleged war

crimes, genocide, torture, and other atrocities commit-

ted by a Bosnian Serb leader were actionable under the

ATCA); Tel-Oren v. Libyan Arab Republic, 726 F.2d

774 (D.C. Cir. 1984) (dismissing for lack of subject

matter jurisdiction claims brought against the Palestine

Liberation Organization, the Libyan government, and

other entities for terrorist activities allegedly in viola-

tion of the law of nations); Xuncazx v. Gramajo, 886 F.

Supp. 162 (D. Mass. 1995) (deeming torture, summary

execution, “disappearance,” and arbitrary detention by

Guatemalan military to be actionable violations under

the ATCA).

Our first opportunity to address the scope of the

ATCA came in Trajano v. Marcos (In re Estate of Mar-

cos Human Rights Litig.) (“Marcos I”), 978 F.2d 493

(9th Cir. 1992), a wrongful death action against former

Philippine President Ferdinand Marcos and his daugh-

ter for the torture and murder of a Philippine citizen.

We recognized that “it would be unthinkable to con-

clude other than that acts of official torture violate

customary international law,” and concluded that the

plaintiff, an alien, had properly invoked the subject

matter jurisdiction of the federal courts under the

ATCA. Id. at 499 (citation and internal quotation

marks omitted). Referencing an April 1787 letter from

lla

James Madison to Edmond Randolph, we concluded

that “[t]here is ample indication that the ‘Arising Un-

der’ Clause was meant to extend the judicial power of

the federal courts . . . to ‘all cases which concern

foreigners.’” Id. at 502. Because the “Arising Under”

Clause gave Congress the power to enact the ATCA,

we held that exercising jurisdiction over the claims

would not run afoul of Article III of the Constitution.

Id. at 502-03.

When the Marcos litigation returned to this court in

Hilao v. Estate of Marcos (In re Estate of Marcos,

Human Rights Litig.) (“Marcos II”), 25 F.3d 1467 (9th

Cir. 1994), we further delineated the contours of the

ATCA.’ We resolved that the Act not only provides

federal courts with subject matter jurisdiction, but also

creates a cause of action for an alleged violation of the

law of nations: “(SJection 1350 does not require that the

action ‘arise under’ the law of nations, but only man-

dates a ‘violation of the law of nations’ in order to create

a cause of action.” Jd. at 1475 (quoting Tel-Oren, 726

F.2d at 779 (Edwards, J., concurring)). In other words,

“(njothing more than a violation of the law of nations is

required to invoke section 1350.” Jd. (citation omitted).

Of course, not every violation of international law

constitutes an actionable claim under the ATCA. In

Marcos II, we were careful to limit actionable violations

to those international norms that are “specific, univer-

sal, and obligatory.” Jd. at 1475. This formulation,

which lays the foundation for our approach to interna-

® Following Marcos II, we issued several other decisions in

relation to the Marcos litigation, two of which are referenced in

this opinion: Hilao v. Estate of Marcos (“Marcos III”), 103 F.3d

767 (9th Cir. 1996) and Hilao v. Estate of Marcos (“Marcos IV”),

103 F.3d 789 (9th Cir. 1996).

12a

tional norms, is in keeping with the narrow scope of

ATCA jurisdiction and the general practice of limiting

judicial review to those areas of international law that

have achieved sufficient consensus to merit application

by a domestic tribunal. See Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398, 428, 84 S. Ct. 923, 11 L. Ed. 2d

804 (1964) (“[T]he greater the degree of codification or

consensus concerning a particular area of international

law, the more appropriate it is for the judiciary to

render decisions regarding it . . . .”); cf. United States

v. Smith, 18 U.S. (6 Wheat.) 153, 162, 5 L.Ed. 57 (1820)

(finding piracy “universally treat[ed] . . . as an offence

against the law of nations” and “sufficiently and consti-

tutionally defined” by commentators to be punishable

by Congress).

Sosa urges a narrow reading of the “law of nations”

and a correspondingly strict interpretation of the “spe-

cific, universal, and obligatory” requirement. He ar-

gues that only violations of jus cogens norms, as dis-

tinguished from violations of customary international

law, are sufficiently “universal” and “obligatory” to be

actionable as violations of “the law of nations” under

the ATCA. We decline to embrace this restrictive

reading, as we are guided by the language of the stat-

ute, not an imported restriction.

The term jus cogens refers to a category of “per-

emptory norms” that are “ ‘accepted and recognized by

the international community of states as a whole as

. . . norm{s] from which no derogation is permitted.’”

Siderman de Blake v. Republic of Argentina, 965 F.2d

699, 714 (9th Cir. 1992) (quoting Vienna Convention on

the Law of Treaties, art. 53, May 23, 1969, 1155

U.N.T.S. 332, 8 1.L.M. 679). Customary international

law, a direct descendent of the “law of nations,” is a re-

13a

lated, but distinct, concept. Jd. It refers more gener-

ally to those established norms of contemporary inter-

national law that are “ascertain[ed] . . . ‘by consulting

the works of jurists, writing professedly on public law;

or by the general usage and practice of nations; or by

judicial decisions recognizing and enforcing that law.’”

Id. at 714-15 (quoting Smith, 18 U.S. at 160-61).

We have explained the difference between these two

concepts as follows:

While jus cogens and customary international law

are related, they differ in one important respect.

Customary international law, like international law

defined by treaties and other international agree-

ments, rests on the consent of states. A state that

persistently objects to a norm of customary inter-

national law that other states accept is not bound by

that norm

In contrast, jus cogens embraces customary laws

considered binding on all nations and is derived

from values taken to be fundamental by the inter-

national community, rather than from the fortuitous

or self-interested choices of nations. Whereas

customary international law derives solely from the

consent of states, the fundamental and universal

norms constituting jus cogens transcend such con-

sent ....

Because jus cogens norms do not depend solely on

the consent of states for their binding force, they

enjoy the highest status within international law.

l4a

Id. at 715 (internal quotation marks and citations

omitted).° S

Given the non-derogable nature of jus cogens norms,

it comes as no surprise that we have found that a jus

cogens violation is sufficient to satisfy the “specific,

universal, and obligatory” standard. See Marcos II, 25

F.3d at 1475. But the fact that a violation of this

subcategory of international norms is sufficient to

warrant an actionable claim under the ATCA does not

render it necessary. Indeed, our recent cases lay out

the components of an actionable violation without refer-

ence to jus cogens. See Papa v. United States, 281 F.3d

‘1004, 1013 (9th Cir. 2002) (remanding case to district

court to apply the “applicable standard,” which requires

plaintiffs to allege “specific, universal, and obligatory”

norms as part of their claim); Martinez v. City of Los

Angeles, 141 F.3d 1373, 1383-84 (9th Cir. 1998) (ree-

ognizing, without a discussion of jus cogens, that arbi-

trary detention meets the standard for a cognizable

ATCA claim).

The notion of jus cogens norms was not part of the

legal landscape when Congress enacted the ATCA in

1789. See Brownlie, supra, at 516 (explaining the mod-

ern evolution of jus cogens). Thus, to restrict action-

able violations of international law to only those claims

that fall within the categorical universe known as jus

6 The commentators embrace this distinction. See 1 M. Cherif

Bassiouni, International Criminal Law 40 (2d ed. 1999) (“[A] jus

cogens norm holds the highest hierarchical position among all other

norms and principles. As a consequence of that standing, jus

cogens norms are deemed to be ‘peremptory’ and ‘non-deroga-

ble.’”); Ian Brownlie, Principles of Public International Law 515

(5th ed. 1998) (“The major distinguishing feature of [jus cogens]

rules is their relative indelibility.”).

l5a

cogens would deviate from both the history and text of

the ATCA.

Although a strict categorical approach may have

surface appeal for its apparent ease of application, it is

far from certain which norms would qualify for jus

cogens status. The development of an elite category of

human rights norms is of relatively recent origin in

international law, and “[a]lthough the concept of jus

cogens is now accepted, its content is not agreed.”

Restatement (Third) of the Foreign Relations Law of

the United States § 102 n. 6 (1987) (“Restatement on

Foreign Relations”). As one respected commentator

put it, “more authority exists for the category of j jus

cogens than exists for its particular content .. .

Brownlie, supra, at 516-17; see also Theodor Meron, On

a Hierarchy of International Human Rights, 80

A.J.I.L. 1, 14-15 (1986) (explaining the difficulties of

strict categorization in defining peremptory norms).

We therefore remain confident that the standard estab-

lished in Marcos I] and repeated throughout our case

law best reflects the text and purpose of the ATCA and

provides sufficient guidance for evaluating Alvarez’s

claim.

With this international law background in mind, we

turn to Alvarez’s contentions on appeal. Alvarez ar-

gues that he has a remedy under the ATCA for two

separate violations of international law. First, he

claims that state-sponsored abduction within the terri-

tory of another state without its consent is a violation of

the international law of sovereignty and the customary

norms of international human rights law. Second, he

contends that his seizure and confinement violated the

international customary legal norm against arbitrary

arrest and detention.

l6a

In view of the dissent’s rhetoric and lengthy dis-

course, it may not be readily apparent that the dissent

is in accord with a significant portion of our holding.

Ten members of the en banc court agree that Alvarez

lacks standing to obtain redress for claims based on an

alleged violation of Mexico’s sovereignty and that his

claim for transborder abduction fails.’ These same

judges also agree that there is a universally recognized

norm prohibiting arbitrary arrest and detention. It is

only as to the application of this latter norm that we

part company.

7 Judge Gould’s solitary dissent on the political question issue

misses the mark, as the other dissenters acknowledge. See infra at

n.2 (O’Scannlain, J., dissenting). The mere fact that this case raises

difficult and politically sensitive issues connected to our foreign

relations does not preclude us from carrying out the legislative

mandate of Congress under § 1350. See Baker v. Carr, 369 US.

186, 211, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) (“{I)t is error to sup-

pose that every case or controversy which touches upon foreign

relations lies beyond judicial cognizance.”). The crux of the claim

here rests on legislative delegation, not foreign relations. We see a

critical distinction between, on the one hand, second guessing the

foreign policy judgments of the political branches to whom such

judgments have been constitutionally assigned and, on the other

hand, reviewing claims based in tort and brought under federal

statutes instructing the judiciary to adjudicate such claims. See

Kadic, 70 F.3d at 249 (“The department to whom this [tort suit

against the PLO] has been constitutionally committed is none

other than our own—the Judiciary.”) (internal quotation marks

and citation omitted); Abebe-Jira, 72 F.3d at 848 (holding that the

political question doctrine did not bar tort action brought by

former prisoners in Ethiopia under the ATCA).

17a

A. TRANSBORDER ABDUCTION AND THE LAW OF

NATIONS

1. STANDING AND SOVEREIGNTY

Alvarez claims that his arrest violated Mexico’s

sovereign rights because Mexico had not granted the

United States permission to exercise police power on

its soil. Because such an encroachment on Mexico’s

sovereignty violates “the law of nations” within the

meaning of the ATCA, Alvarez reasons, he is entitled to

relief under that statute. The district court agreed and

rejected Sosa’s objection that Alvarez lacks standing to

invoke Mexico’s sovereignty rights.

We have little trouble accepting the premise from

which Alvarez begins. Few principles in international

law are as deeply rooted as the general norm prohibit-

ing acts of sovereignty that offend the territorial integ-

rity of another state. See generally 1 L. Oppenheim,

Oppenheim’s International Law § 119 (Robert Jennings

& Arthur Watts eds., 9th ed. 1992); see also F.A. Mann,

Reflections on the Prosecution of Persons Abducted in

Breach of International Law, in International Law at a

Time of Perplexity 407 & n.2 (Yoram Dinstein & Mala

Tabory eds. 1989) (referring to this “incontrovertible”

rule as “elementary”). This tenet, as Alvarez points

out, can be traced to the earliest decisions of the Su-

preme Court. Most notably, in 1812, when faced with

the question whether an American citizen could assert

title to an armed French vessel found in the territorial

waters of the United States, Justice Marshall began his

landmark decision by emphasizing the “exclusive and

absolute” nature of territorial jurisdiction, exceptions

to which “must be traced up to the consent of the nation

itself.” Schooner Exchange v. M’Faddon, 11 U.S. (7

Cranch) 116, 136, 3 L.Ed. 287 (1812).

18a

Twelve years later, Justice Story voiced similar

sentiments. Analyzing an American seizure of a foreign

ship that had sailed into Spanish waters, he observed

that “[iJt would be monstrous to suppose that our. . .

officers were authorized to enter into foreign ports and

territories, for the purpose of seizing vessels which had

offended against our laws. It cannot be presumed that

Congress would voluntarily justify such a clear viola-

tion of the laws of nations.” The Apollon, 22 U.S. (9

Wheat.) 362, 371, 6 L.Ed. 111 (1824).

Alvarez seeks to invoke a principle, concomitant with

this precept of territorial sovereignty, that prohibits a

state’s law enforcement agents from exercising their

functions in the territory of another state without the

latter’s consent. The Supreme Court clearly recognized

this proscription in The Appollon. In addition, several

notable authorities are in accord. See Restatement on

Foreign Relations § 432(2) (“A state’s law enforcement

officers may exercise their functions in the territory of

another state only with the consent of the other state,

given by duly authorized officials of that state.”); 1

Oppenheim, supra, § 119, at 387-88 (“It is . . . a breach

of international law for a state without permission tc

send its agents into the territory of another state to

apprehend persons accused of having committed a

crime.”); see also M. Cherif Bassiouni, /nternational

Extradition: United States Law and Practice 255 (4th

ed. 2002) (recognizing the rule and noting that it is

“grounded in the notion that international law is

designed to protect the sovereignty and territorial

integrity of states by restricting impermissible state

conduct”). But whatever the modern contours of this

principle or its corollaries, they are inapplicable here

and need not be explored because Alvarez cannot

19a

establish, as a threshold matter, that he has standing to

assert Mexico’s interests in its territorial sovereignty.®

The Supreme Court has instructed that to meet the

“irreducible constitutional minimum of standing” under

Article III, plaintiffs must “[flirst and foremost” show

the existence of an “injury in fact.” Steel Co. v. Citizens

for a Better Env’t, 523 U.S. 83, 102-03, 118 S. Ct. 1003,

140 L. Ed. 2d 210 (1998) (internal citations and quota-

tion marks omitted). Related to this constitutional

prerequisite is a separate “prudential” requirement of

standing: plaintiffs must demonstrate they are “proper

proponents of the particular legal rights on which they

base their suit.” Singleton v. Wulff, 428 U.S. 106, 112,

96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976). This require-

ment applies “even when the very same allegedly

illegal act that affects the litigant also affects a third

party.” United States Dep’t of Labor v. Triplett, 494

U.S. 715, 720, 110 S. Ct. 1428, 108 L. Ed. 2d 701 (1990).

Although Alvarez may have properly alleged that Mex-

ico’s sovereignty was infringed during his abduction

8 Although we need not examine the place of such a rule in cus-

tomary international law or as it applies to this case, we note that

Alvarez’s assertion is not wholly straightforward, as it raises com-

plex questions about the intersection of extraterritorial criminal

jurisdiction, extraterritorial enforcement, and state sovereignty.

The three concepts are not necessarily correlative as a matter of

international law. See, e.g., S.S. Lotus (Turk. v. Fr.), 1927 P.C.1J.

(ser. A) No. 10, at 19 (Sept. 7) (“The territoriality of criminal law

. . + is not an absolute principle of international law and by no

means coincides with territorial sovereignty.”). And although

extraterritoriality is well-established in our jurisprudence, see

infra Part I.B., to the extent that either extraterritorial jurisdic-

tion or extraterritorial enforcement overlap with the national laws

and policies of another state, inevitably there is a potential for

friction between states. See Bassiouni, International Extradition,

supra, at 314 n.1.

20a

—an issue we need not resolve here—he has not dem-

onstrated that he is a proper party to vindicate Mex-

ico’s national interests.

Alvarez argues that he meets the standing require-

ments because courts may review ATCA claims when-

ever an alien “is injured tortiously in the course of the

defendant’s violation of international law.” But the

ATCA creates a remedy for “a tort . . . committed in

violation of the law of nations,” not “in the course of”

any recognized international law violation. 28 U.S.C.

§ 1350. The legal rights on which Alvarez bases his

claim, and which the ATCA recognizes, are those that

protect the individual from tortious conduct. By its

terms, the ATCA provides only for suits by individual

aliens; it does not allow for an individual to vindicate

the rights of a foreign government.

To allow state-on-state injuries like the one Alvarez

alleges here to be vindicated by a third party not only

would read too much into the ATCA, but would lead to

the judiciary’s intrusion into matters that are appropri-

ately reserved for the Executive branch. Although

international human rights litigation under the ATCA

inevitably raises issues implicating foreign relations,

sovereigns’ prerogatives are ordinarily and tradition-

ally handled through diplomatic channels.’ The right of

9 We do not mean to imply that an individual never has a claim

for breach of the law of nations for which a state-to-state remedy

also exists. See Restatement on Foreign Relations § 703(1) (estab-

lishing states’ rights to take action against fellow states that trans-

gress international human rights norms). We note, however, that

the commentary of the Restatement on Foreign Relations indi-

cates that most state-to-state remedies are subordinated to indivi-

dual remedies where transgressor states’ domestic law makes such

remedies available. See id. §§ 703 cmt. d, 713 emt. f.

2la

a nation to invoke its territorial integrity does not

translate into the right of an individual to invoke such

interests in the name of the law of nations.

Alvarez seeks refuge in Ker v. Illinois, 119 U.S. 436,

7 S. Ct. 225, 30 L.Ed. 421 (1886), the case that previ-

ously doomed his attempt to secure dismissal of his

criminal indictment. See Alvarez-Machain II, 504 U.S.

at 662, 112 S. Ct. 2188. Like Alvarez, Ker claimed forci-

ble abduction from a foreign country, in his case Peru.

Although the Supreme Court refused to dismiss Ker’s

indictment, it observed that Ker was “probably not

. . . Without redress, for he could sue [his abductor] in

an action of trespass and false imprisonment.” Ker, 119

U.S. at 444, 7 S. Ct. 225. The Court made no guaran-

tees, however, regarding a claim under the ATCA or

any other federal statute; nor did it intimate that Ker

could sue to avenge Peru’s sovereignty rights. Rather,

the Court noted that Peru could pursue a separate

remedy—the kidnapper’s extradition. Jd. Ker thus

implicitly drew the distinction between vindication of

individual rights and a sovereign’s vindication of its

rights. Ker does not bridge the gap in Alvarez’s claim.

2. TRANSBORDER ABDUCTION AND CUSTOMARY

INTERNATIONAL LAW

Apparently cognizant of the constitutional barrier to:

his claim, Alvarez offers an alternative theory: he

seeks to bypass the standing hurdle by arguing that,

notwithstanding any infringements upon Mexico’s

sovereignty, the act of transborder kidnapping was, in

itself, a violation of customary international human

rights law. This norm, as defined by Alvarez, creates a

personal right under the law of nations.

Sosa, the DEA agents, and the United States all urge

that this norm fails the law of nations test. They

contend that the prohibition that Alvarez identifies has

not reached the level of acceptance in the international

community sufficient to qualify as “universal” and “obli-

gatory.” They also argue that, whatever degree of

agreement other nations have reached, the United

States has affirmatively and definitively rejected this

principle. We agree. The United States does not

recognize a prohibition against transborder kidnapping,

nor can it be said that there is international acceptance

of such a norm.

We embrace the Supreme Court’s directive that the

law of nations “may be ascertained by consulting the

work of jurists, writing professedly on public law; or by

the general usage and practice of nations; or by judicial

decisions recognizing and enforcing that law.” Smith,

18 U.S. at 160-61; see also The Paquete Habana, 175

U.S. 677, 700, 20 S. Ct.-290, 44 L.Ed. 320 (1900)

(“[W]here there is no treaty, and no controlling execu-

tive or legislative act or judicial decision, resort must be

had to the customs and usages of civilized nations; and,

as evidence of these, to the works of jurists and com-

mentators ... .”). Evidence of the law of nations may

also be garnered from international agreements and

United Nations declarations. See Siderman, 965 F.2d

at 716-17; Filartiga I, 630 F.2d at 883-84.

Article 38 of the Statute of the International Court of

Justice serves as a convenient summary of the sources

of international law, although we recognize that defin-

ing “(t]he ‘sources’ of international law is a subject of

much continuing scholarship.” United States v. Yousef,

327 F.3d 56, 100-01 (2d Cir. 2003).

Article 38 provides, in part:

23a

1. The Court, whose function is to decide in

accordance with international law such disputes as

are submitted to it, shall apply:

a. international conventions, whether general or

particular, establishing rules expressly recognized

by the contesting states;

b. international custom, as evidence of a general

practice accepted as law;

e.the general principles of law recognized by

civilized nations;

d. subject to the provisions of Article 59, judicial

decisions and the teachings of the most highly quali-

fied publicists of the various nations, as subsidiary

means for the determination of rules of law.”

Statute of the International Court of Justice, June 26,

1945, art. 38, 59 Stat. 1055, U.S.T.S. 993.

International agreements to which the United States

is a signatory provide an obvious and convenient start-

ing point. It would be; of course, a relatively simple

analysis if we could pinpoint in such an agreement a

prohibition against transborder abductions. Despite

eloquent arguments to the contrary, we find no such

support in the text of any international agreement.

Alvarez and the amici point to a number of inter-

national human rights instruments which, they argue,

support an individual right to remain free of trans-

border abductions. But no authority cited by Alvarez

1 Article 59 states: “The decision of the Court has no binding

force except between the parties and in respect of that particular

case.” ‘

24a

recognizes an explicit prohibition against forcible

abduction." Rather, each of the authorities speaks to

general prohibitions against restricting an individual’s

right to freedom and movement and security of person.

For example, the American Convention on Human

Rights (“American Convention”), which Alvarez cites,

states that “[e]very person has the right to personal

liberty and security” and “{n]o one shall be deprived of

his physical liberty except for the reasons and under

the conditions established beforehand by the constitu-

tion of the State Party concerned or by a law estab-

lished pursuant thereto.” Art. 7(1), 7(2), opened for

signature Nov. 22, 1969, 1144 U.N.T.S. 123 (signed but

not ratified by the United States). Similarly, the

International Covenant on Civil and Political Rights

(“ICCPR”) provides that “[e]veryone lawfully within

the territory of a State shall, within that territory, have

the right to liberty of movement and freedom to choose

his residence.” Art. 12, G.A. Res. 2200, 21 U.N. GAOR,

Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999

U.N.T:S. 171 (entered into force Mar. 23, 1976) (ratified

by the United States Sept. 8, 1992). See also Universal

Declaration of Human Rights (“Universal Declara-

tion”), art. 13(1), G.A. Res. 217A (III), 3 U.N. GAOR,

Supp. No. 16, U.N. Doc. A/810 (1948) (“Everyone has

the right to freedom of movement and residence within

the borders of each state.”);* American Declaration of

11 The Restatement on Foreign Relations reflects this void:

“None of the international human rights conventions to date . . .

provides that forcible abduction or irregular extradition is a vio-

lation of international human rights law.” Restatement on Foreign

Relations § 432 n.1.

12 We have recognized that the Universal Declaration, although

not binding on states, constitutes “a powerful and authoritative

25a

the Rights and Duties of Man, art. VIII, May 2, 1948,

O.A.S. Res. XXX, reprinted in Basic Documents Per-

taining to Human Rights in the Inter-American Sys-

tem, OEA/Ser.LV/II. 82 doc. 6 rev. 1, at 17 (1992)

(“Every person has the right to fix his residence within

the territory of the state of which he is a national, to

move about freely within such territory, and not to

leave it except by his own will.”). Such general prohibi-

tions are insufficient to support Alvarez’s claim that

there is an international norm against transborder

abduction because an actionable claim under the ATCA

requires the showing of a violation of the law of nations

that is “specific, universal, and obligatory.”

Looking beyond the declarations and covenants to

treaties does not yield a different result.” At the time

of Alvarez’s abduction, the United States-Mexico Ex-

tradition Treaty did not extend to transborder abduc-

tion and there was no separate treaty with such a

prohibition. See Alvarez-Machain II, 504 U.S. at 669-

70, 112 S. Ct. 2188. The absence of any agreement is

consistent with our conclusion that the United States

has not embraced the prohibition urged by Alvarez.

That is not to say that Alvarez’s abduction went un-

noticed. Indeed, it was met with a formal diplomatic

protest by Mexico and considerable public outcry.”

_ Statement of the customary international law of human rights.”

Siderman, 965 F 2d at 719.

The ATCA permits suits for both a “violation of the law of

nations” and torts in violation of “a treaty of the United States.”

28 U.S.C. § 1350.

4 The Mexican Government filed an official retest with the

United States, presenting a diplomatic ncte te { « U.S. Depart-

ment of State on three separate occasions. “ve Brief for the

United Mexican States as Amicus Curiae in Suppert of Affirmance

26a

In 1994, four years after Alvarez was abducted, the

United States and Mexico reached an agreement to

prohibit the practice of transborder arrest. Treaty to

Prohibit Transborder Abductions, Nov. 23, 1994, U.S.-

Mex., reprinted in Michael Abbell, Extradition to and

From the United States, at A-303 (2002). That agree-

ment is not yet in force, however, because the Presi-

dent has not submitted it to the Senate for its advice

and consent. See id. at A-287. In any event, the pro-

posed treaty would not help Alvarez: it would explicitly

foreclose the right of abductees to sue their abductors.

See id. at A-303. If anything, this development under-

scores the void that existed before the treaty was

signed and the reality that the United States does not

yet consider itself bound by the supposed norm against

transborder abductions. Alvarez offers no other legis-

lative or judicial source that supports a specific, en-

forceable norm against transborder abductions.

The United States claims that unilateral, transborder

abductions are a “rare” occurrence. And the notion of

sneaking across the border to nab a criminal suspect

surely raises more than a diplomatic eyebrow. None-

theless, our review of the international authorities and

literature reveals no specific binding obligation, express

or implied, on the part of the United States or its

agents to refrain from transborder kidnapping. Nor

at 3-4, Alvarez-Machain II, reprinted in 31 1.L.M. 934, 938-39

(1992); see also Caro-Quintero, 745 F. Supp. at 604. The resulting

friction between the United States and Mexico was well docu-

mented. See, e.g., Marjorie Miller & Douglas Jehl, Mexico to Con-

front U.S. on Camarena Case Abduction, L.A. Times, April 18,

1990, at Al; Carlyle C. Douglas, Arm of U.S. Law Is Too Long,

Mexico Complains, N.Y. Times, April 22, 1990, § 4, at 11; Jack

Epstein, Growing Uproar in Mexico About Alleged Abuses by

U.S.,S.F. Chron., July 7, 1992, at A8.

27a

can we say that there is a “universal” consensus in

the sense that we use that term to describe well-

entrenched customs of international law. Any agree-

ment that may exist on this score has failed to surface

in the declarations and accords that commonly manifest

the mutual concern of states. See Filartiga I, 630 F.2d

at 888 (“It is only where the nations of the world have

demonstrated that the wrong is of mutuai, and not

merely several, concern, by means of express inter-

national accords, that a wrong generally recognized

becomes an international law violation within the mean-

ing of the statute.”). Because a human rights norm

recognizing an individual’s right to be free from trans-

border abductions has not reached a status of interna-

tional accord sufficient to render it “obligatory” or “uni-

versal,” it cannot qualify as an actionable norm under

the ATCA. This is a case where aspiration has not yet

ripened into obligation.”

® The dissent asserts that we could shortcut our analysis and

make ATCA review “easier” by determining, as a threshold mat-

ter, whether the United States, through the political branches, has

decided variously not to “recognize,” “assent,” “agree with,” or

“subscribe to” an international norm prohibiting transborder ar-

rests. Should the United States demonstrate any form of non-

acquiescence, the customary international law norm would, accord-

ing to the dissent, fail to achieve “universal” status for purposes of

ATCA liability.

Although we accept the well-established principle that custo-

mary norms are fundamentally based on the consent of states, and

that the United States might well decide to deliberately disavow

or repudiate certain principles of international law, we cannot

agree with the dissent’s implication that every executive branch

decision to breach an international norm translates into a more

global repudiation of that norm or necessarily insulates the United

States and its agents from civil tort liability. Our understanding

accords with Ker, 119 U.S. at 444-45, 7 S. Ct. 225 (holding that civil

28a

B. ARBITRARY ARREST AND DETENTION AND THE

LAW OF NATIONS

Alvarez is not, however, without a remedy. The uni-

lateral, nonconsensual extraterritorial arrest and deten-

tion of Alvarez were arbitrary and in violation of the

law of nations under the ATCA.

remedies might still be available for violations of treaties or the

law of nations even though jurisdiction to prosecute a defendant

criminally may not be invalidated by an extraterritorial abduction),

and the Supreme Court’s more recent acknowledgment that

Alvarez might be correct that his abduction was “shocking” and “in

violation of general international law principles,” Alvarez-Machain

II, 504 U.S. at 669, 112 S. Ct. 2188; see also The Paquete Habana,

175 U.S. 677, 700, 20 S. Ct. 290, 44 L.Ed. 320 (1900) (stating that

“{i)Jnternational law is part of our law,” and that “where there is no

treaty, and no controlling executive or legislative act or judicial

decision, resort must be had to the customs and usages of civilized

nations; and, as evidence of these, to the works of jurists and

commentators. . . .”) (emphasis added); Yousef, 327 F.3d at 92

n.25 (“While it is not possible to claim that the practice or policies

of any one country, including the United States, has any such

authority that the contours of customary international law may be

determined by reference only to that country, it is highly unlikely

that a purported principle of customary internationai law in direct

conflict with the recognized practices and customs of the United

States and/or other prominent players in the community of States

could be deemed to qualify as a bona fide customary international

law principle.”) (emphasis added); Louis Henkin, Foreign Affairs

and the U.S. Constitution 243 (2d ed. 1996) (explaining that

“(ujnlike treaties . . . principles of customary international law

cannot be denounced or terminated by the President and cannot be

eliminated from the law of the United States by any Presidential

act.”) (emphasis added).

. 29a

1. THE PROHIBITION AGAINST ARBITRARY ARREST

AND DETENTION

Unlike transborder arrests, there . “ists a clear and

universally recognized norm prohibiting arbitrary ar-

rest and detention. This prohibition is codified in every

major comprehensive human rights instrument and is

reflected in at least 119 national constitutions. See M.

Cherif Bassiouni, Human Rights in the Context of

Criminal Justice: Identifying International Proce-

dural Protections and Equivalent Protections in

National Constitutions, 3 Duke J. Comp. & Int’! L. 235,

260-61 (1993). The Universal Declaration, perhaps the

most well-recognized explication of international human

rights norms, provides that “[nJo one shall be subjected

to arbitrary arrest, detention, or exile,” Universal Dec-

laration, art. 9, and the ICCPR, which the United

States has ratified,’ unequivocally obliges states par-

ties to refrain from “arbitrary arrest or detention.”

ICCPR, art. 9."

‘6 The ICCPR is one of several international covenants designed

to formally codify many of the rights embodied in the Universal

Declaration. See Brownlie, supra, at 576.

17 Each of the regional human rights instruments contains a

similar prohibition. See American Convention, art. 7(3) (“No one

shall be subject to arbitrary arrest or imprisonment.”); European

Convention for the Protection of Human Rights and Fundamental

Freedoms (“European Convention”), art. 5(1), opened for signature

Nov. 4, 1950, 213 U.N.T.S. 222 (deprivation of liberty must be “in

accordance with a procedure prescribed by law” and only in the

case of, inter alia, “the lawful arrest or detention of a person

effected for the purpose of bringing him before the competent legal

authority . . . .”); African Charter on Human and Peoples’ Rights

(“African Charter”), art. 6, June 27, 1981, 21 I.L.M. 58 (1982)

(“[N]o one may be arbitrarily arrested or detained.”).

30a

We recently reaffirmed the universal, obligatory, and

specific nature of this norm in Martinez, 141 F.3d at

1384 (recognizing a “clear international prohibition

against arbitrary arrest and detention”); see also Mar-

cos IV, 103 F.3d at 795 (recognizing “arbitrary deten-

tion . . . as [an] actionable violation[ | of international

law”). We explained, in defining the norm, that

“(djetention is arbitrary ‘if it is not pursuant to law; it

may be arbitrary also if it is incompatible with the

principles of justice or with the dignity of the human

person.” Martinez, 141 F.3d at 1384 (quoting Restate-

ment on Foreign Relations § 702 emt. h).”

'8 Our standard reflects the language of the Restatement as well

as other major international sources. See Restatement on Foreign

Relations § 702 cmt. h; ICCPR, art. 9(1) (“No one shall be sub-

jected to arbitrary arrest or detention. No one shall be deprived of

his liberty except on such grounds and in accordance with such

procedures as are established by law.”); id., art. 9(5) (“Anyone who

has been the victim of unlawful arrest or detention shall have an

enforceable right to compensation.”); European Convention, art.

5(1) (deprivation of liberty must be “in accordance with a pro-

cedure prescribed by law” and only in the case of, inter alia, “the

lawful arrest or detention of a person effected for the purpose of

bringing him before the competent legal authority . . . .”);

African Charter, art. 6 (“No one may be deprived of his freedom

except for reasons and conditions previously laid down by law. In

particular, no one may be arbitrarily arrested or detained.”); see

also Winterwerp v. Netherlands, 33 Eur. Ct. H.R. (ser. A.) at para.

39 (1979) (“[N]Jo detention that is arbitrary can ever be regarded as

lawful.”); United Nations, Study of the Right of Everyone to be

Free from Arbitrary Arrest, Detention, and Exile 7 (1964)

(“United Nations Study”) (adopting the view that “an arrest or

detention is arbitrary if it is (a) on grounds or in accordance with

procedures other than those established by law, or (b) under the

provisions of a law the purpose of which is incompatible with the

respect for the right to liberty and security of person”).

3la

Sosa acknowledges the prohibition against arbitrary

arrest and detention, but he contends that for ATCA

liability to attach, Alvarez’s detention must be “pro-

longed” in addition to being arbitrary. We can divine

no such requirement in our precedent or in the appli-

cable international authorities. Rather, as the language

of the international instruments demonstrates, the

norm is universally cited as one against “arbitrary”

detention and does not include a temporal element.

Other authorities reflect this understanding. See, e.g.,

Bassiouni, Human Rights in the Context of Criminal

Justice, supra, at 260; Paul Sieghart, The International

Law of Human Rights 135-59 (1983); see also United

Nations Study, supra, at 5-8 (defining elements of the

norm without mention of a temporal component).

% This reading is also supported in the case law. See, e.g., de

Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1397 (5th

Cir. 1985) (recognizing “the right not to be arbitrarily detained” as

part of the law of nations); Rodriguez-Fernandez v. Wilkinson, 654

F.2d 1382, 1388 (10th Cir. 1981) (“No principle of international law

is more fundamenta! than the concept that human beings should be

free from arbitrary imprisonment.”); Paul v. Avril, 901 F. Supp.

330, 333-34, 335 (S.D. Fla. 1994) (concluding plaintiff suffered arbi-

trary detention although he was held for less than ten hours); Forti

v. Swarez-Mason, 672 F. Supp. 1531, 1541 (N.D. Cal. 1987) (“There

is case law finding sufficient consensus to evince a customary inter-

sensus is even clearer in the case of a state’s prolonged arbitrary

detention of its own citizens.” (internal citations omitted)); see also

Litwa v. Poland, App. No. 26629/95, 33 Eur. H.R. Rep. 53 (2000)

(finding detention of six hours and thirty minutes constitutes

violation under Article 5 of the European Convention); Quinn v.

France, App. No. 18580/91, 21 Eur. H.R. Rep. 529 (1995) (finding

claim of arbitrary detention under Article 5 of the European Con-

vention where petitioner was detained for a period of eleven

hours).

32a

Although § 702 of the Restatement on Foreign

Relations includes a reference to “prolonged arbitrary

detention,” neither the Restatement nor our cases

import a separate temporal requirement for purposes of

_ ATCA liability. Section 702 contains a short list of

human rights norms that it deems sufficient to qualify

as customary law violations. See Restatement on

Foreign Relations § 702(a)-(g). But the comments to

§ 702 clarify that the list is non-exhaustive and that

virtually all of the norms listed, including “prolonged

arbitrary detention,” belong among the elite set of jus

cogens norms that are non-derogable. /d. cmts. a, n.

Section 702 does not state that every arbitrary deten-

tion must be “prolonged” to qualify as a violation of the

law of nations—which is all that is required under the

ATCA—and in fact implies the opposite. See id. cmt.

(“A single, brief, arbitrary detention by an official of a

state party to one of the principal international agree-

ments might violate that agreement.”). Likewise, our

holding in Martinez, which cited the Restatement,

included the length of detention as but one factor

among many in determining whether a violation of the

law of nations had occurred. 141 F.3d at 1384.

This is not to say that the length of detention cannot

be a factor in evaluating whether there was an

actionable violation of international law. Indeed, an

extended detention following an improper arrest would

necessarily contribute to “arbitrariness.” We simply

hold, consistent with international law, that there is no

® The Restatement provides that “[a] state violates interna-

tional law if . . . it practices, encourages, or condones . . . pro-

longed arbitrary detention.” Restatement on Foreign Relations

§ 702(e).

33a

freestanding temporal requirement nor any magical

time period that triggers the norm.

2. APPLICATION OF ARBITRARY ARREST AND DETEN-

TION STANDARD TO ALVAREZ

The standard then is whether the arrest and deten-

tion were arbitrary, that is, “not pursuant to law.””'

Martinez, 141 F.3d at-4384- In the case before us, there

was, quite simply, no basis in law for the unilateral

extraterritorial arrest and related detention of Alvarez

in Mexico.

The only instrument Sosa can point to as evidence

that Alvarez’s abduction was “pursuant to law” is an

arrest warrant issued by the United States District

Court for the Central District of California. But a

federal arrest warrant, without more, hardly serves as

a license to effectuate arrests worldwide. It is no

accident that the warrant is directed to “The United

States Marshal and any Authorized United States Of-

ficer” (emphasis added). The Federal Rules of Criminal

Procedure in effect at the time of Alvarez’s arrest

provided that “[a] warrant may be executed .. .

within the jurisdiction of the United States.” Fed. R.

2! Although the norm against arbitrary arrest and detention

may encompass both illegal and unjust acts, we need not decide

here under what circumstances an “unjust” arrest or detention

might qualify as “arbitrary.” See, ¢g., Restatement of Foreign

Relations § 702 n. 6 (“Detention is arbitrary if it is unlawful or

unjust.”); Laurent Marcoux, Jr., Protection from Arbitrary Arrest

and Detention Under International Law, 5 B.C. Int’| Comp. & L.

Rev. 345 (1982) (analyzing the language and drafting history of the

Universal Declaration and ICCPR as evidence that the term

“arbitrary” was chosen to encompass a broader standard than

mere unlawfulness).

34a

Crim. P. 4(d)(2)" The language could hardly be

clearer—“within the jurisdiction of the United States”

means exactly what it says.”

2 Rule 4(d)(2) was amended on December 1, 2002. The Rule,

renumbered as 4(c)(2), now reads, “A warrant may be executed, or

a summons served, within the jurisdiction of the United States or

anywhere else a federal statute authorizes an arrest” (underscor-

ing indicates amendment). The advisory committee notes clarify

that the “new language . . . reflects the recent enactment of the

Military Extraterritorial Jurisdiction Act (Pub. L. No. 106-523, 114

Stat. 2488) that permits arrests of certain military and Department

of Defense personnel overseas. See also 14 U.S.C. § 89 (Coast

Guard authority to effect arrests outside territorial limits of

United States).” Fed. R. Crim. P. 4 advisory committee’s note.

The calibration of Rule 4 to statutes in which Congress has made

explicit the territorial reach of the arrest power demonstrates not

only the limited scope of a traditional arrest warrant, but Con-

gress’s own recognition that it must speak clearly when expanding

the geographical scope of an agent’s extraterritorial arrest

authority.

2 Alvarez, of course, was only one of many charged in connec-

tion with Camarena’s murder. An indictment issued on January

30, 1985 charged twenty-two persons with crimes in connection

with Camarena’s murder. Seven were tried in federal court. In-

cluding Alvarez, three of the seven were brought “by means of

covert forcible abduction from their homelands.” Caro-Quintero,

745 F. Supp. at 602. Alvarez’s abduction was unique in that it in-

volved neither the cooperation of local police nor the consent of a

foreign government. See United States v. Verdugo-Urquidez, 856

F.2d 1214, 1216 (9th Cir. 1988), rev'd, 494 U.S. 259, 110 S. Ct. 1056,

108 L. Ed. 2d 222 (1990) (Camarena murder suspect arrested by

local Mexican police after U.S. arrest warrant was issued and sus-

pect was handed over to U.S. Marshals at the U.S.-Mexico border);

Matta-Ballesteros v. Henman, 896 F.2d 255, 256 (7th Cir. 1990)

(Camarena murder suspect arrested in Honduras by Honduran

Special Troops accompanied by U.S. Marshals; suspect driven to

U.S. Air Force Base and flown to U.S.). Others were arrested in

the United States. See United States v. Lopez-Alvarez, 970 F.2d

35a

Despite the clear limitation on the extraterritorial

reach of the arrest warrant, Sosa would have us believe

that Alvarez’s arrest in Mexico was authorized under

American law. The United States takes the same

position in its defense against Alvarez’s false arrest

claim, which we discuss in a later section but which is

also relevant here. Both parties conclude that the

federal officers (and, by implication, Sosa) were author-

ized by statute to make warrantless arrests outside the

United States. Because the criminal statutes under

which Alvarez was charged have extraterritorial appli-

cation, the argument goes, Congress must have granted

DEA agents broad authority to enforce those statutes

beyond our borders.

The proper starting point is, of course, the applicable

statutory scheme. We begin with a well-established

canon of construction. “It is a longstanding principle of

American law ‘that legislation of Congress, unless a

contrary intent appears, is meant to apply only within

the territorial jurisdiction of the United States.’”

EEOC v. Arabian Amer. Oil Co. (“Aramco”), 499 U.S.

244, 248, 111 S. Ct. 1227, 113 L. Ed. 2d 274 (1991) (quot-

ing Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S. Ct.

575, 93 L.Ed. 680 (1949)). “In applying this principle,

‘we assume that Congress legislates against the back-

583, 586 (9th Cir. 1992); United States v. Felix-Gutierrez, 940 F.2d

1200, 1203 (9th Cir. 1991).

* The district court emphasized that no warrant was issued by

Mexican authorities and no Mexican official lawfully effectuated

the arrest. Although the district court focused on this lack of local

authority, our analysis centers on the DEA’s authority under

United States law. We do not hold that extraterritorial authority

in this case rests on “the consent or assistance of the host country,”

despite the dissent’s preoccupation with the subject in Section

ITI.B. of its opinion.

36a

99”

drop of the presumption against extraterritoriality.

Smith v. United States, 507 U.S. 197, 204, 113 S. Ct.

1178, 122 L. Ed. 2d 548 (1993) (quoting Aramco, 499

U.S. at 248, 111 S. Ct. 1227). “(T]he presumption is

rooted in a number of considerations, not the least of

which is the commonsense notion that Congress gener-

ally legislates with domestic concerns in mind.” Jd. at

204 n.5, 113 S. Ct. 1178. The canon also “serves to pro-

tect against unintended clashes between our laws and

those of other nations which could result in interna-

tional discord.” Aramco, 499 U.S. at 248, 111 S. Ct.

1227 (citing McCulloch v. Sociedad Nacional de

Marineros de Honduras, 372 U.S. 10, 20-22, 83 S. Ct.

671, 9 L. Ed. 2d 547 (1963)).

The Supreme Court, in recognizing this principle, has

carved out an exception for a narrow class of substan-

tive criminal statutes. In United States v. Bowman,

260 U.S. 94, 43 S. Ct. 39, 67 L.Ed. 149 (1922), the Court

reviewed a criminal fraud provision used to indict

individuals who committed acts on a U.S. vessel outside

of American territorial waters. The Court reiterated

its presumption that, in most cases, if a substantive

criminal provision is to be applied extraterritorially, “it

is natural for Congress to say so in the statute.” Jd. at

98, 43 S.-Ct. 39. But the Court found that “the same

rule of interpretation should not be applied to criminal

statutes which are, as a class, not logically dependent

on their locality for the Government’s jurisdiction, but

are enacted because of the right of the Government to

defend itself against obstruction, or fraud wherever

perpetrated.” Jd.

We have no doubt that the substantive criminal

statutes under which Alvarez was charged apply to acts

occurring outside the United States. Invoking the rules

37a

of construction just described, we reasoned in United

States v. Vasquez-Velasco, 15 F.3d 833, 839-41 (9th Cir.

1994), that 18 U.S.C. § 1959, the racketeering statute

under which Alvarez was indicted, applied extraterri-

torially. Later, we applied the same principles to con-

clude that “Congress intended to apply statutes pro-

scribing the kidnapping and murder of DEA agents

extraterritorially.” Felix-Gutierrez, 940 F.2d at 1204.

These cases reinforce the established proposition

that certain criminal statutes are applicable to conduct

occurring outside of the borders of the United States.

It was precisely this principle of extraterritoriality that

led the Supreme Court to conclude that Alvarez could

be tried in the United States. Alvarez II, 504 U.S. at

657 & n.1, 112 S. Ct. 2188. And it is this same concept

that is invoked in case after case to assert jurisdiction

over defendants—whether United States or foreign

nationals—for criminal conduct occurring outside of the

United States. See, e.g., United States v. Neil, 312 F.3d

419, 421-23 (9th Cir. 2002) (applying extraterritoriality

principle to bring citizen of St. Vincent and the Grena-

dines to trial in U.S. for sexual assault on cruise ship in

Mexican territorial waters after cruise ship landed in

U.S.); United States v. Hill, 279 F.3d 731, 739-40 (9th

Cir. 2002) (applying harboring statute extraterritorially

to bring to trial wife of violator of Deadbeat Parents

Punishment Act arrested in U.S.); Chua Han Mow vy.

United States, 730 F.2d 1308, 1311-12 (9th Cir. 1984)

(applying drug importation and distribution statutes

extraterritorially to prosecute Malaysian defendant

extradited to U.S.); Yousef, 327 F.3d at 87-111, 2003

U.S. App. LEXIS 6437, at **29-45 (applying provisions

of the Destruction of Aircraft Act extraterritorially to

conduct of terrorists who, after being arrested by

38a

Philippine and Malaysian police and later turned over

to the FBI, were prosecuted for their participation in a

conspiracy to bomb United States commercial airliners

in Southeast Asia).”

This proposition is not, however, the same as the far-

reaching principle advocated by Sosa and the gov-

ernment, namely that a statute with extraterritorial

application automatically carries with it the authority

for United States agents to detain and arrest suspects

worldwide. Extraterritorial application, in other

words, does not automatically give rise to extraterrito-

rial enforcement authority. Such a leap is too facile.

That Congress may have intended the reach of a

criminal statute to extend beyond our borders does not

mean that Congress also intended to give federal law

enforcement officers unlimited authority to violate the

territorial sovereignty of any foreign nation to enforce

those laws, or to breach international law in doing so.

25 Congress has extended the United States’ substantive crimi-

nal jurisdiction extraterritorially in a host of statutes, all of which

state clearly their jurisdictional reach. See, e.g., 18 U.S.C. § 1119

(murder of U.S. national in a foreign country); 18 U.S.C. § 2332b

(foreign terrorist activity in the U.S.); 18 U.S.C. §§ 1512(h), 1513(d)

(witness tampering); 18 U.S.C. § 175 (use of biological weapons); 18

U.S.C. §§ 351, 1751 (crimes committed against high government of-

ficials); 18 U.S.C. § 1956 (money laundering); 18 U.S.C. § 2339B (as-

sistance to foreign terrorist organizations); 18 U.S.C. § 1203(b)(1)

(implementing Hostage Convention); 50 U.S.C. § 424 (extra-

territorial jurisdiction over crimes relating to disclosure of national

security information); 18 U.S.C. § 32(b) (violence against individual

aboard or destruction of any “civil aircraft registered in a country

other than the United States while such aircraft is in flight” or in

service).

39a

Bowman does not countenance such an extension, and

our cases have never so held.”

In Bowman, the Supreme Court focused on the

nature of the criminal conduct as a guide to determining

the territorial reach of criminal statutes, but balanced

that concern against limitations imposed by interna-

tional law. The Court stated that “(t]he necessary

locus, when not specially defined, depends upon the

purpose of Congress as evinced by the description and

nature of the crime and upon the territorial limitations

upon the power and jurisdiction of a government to

punish crime under the law of nations.” 260 U.S. at 97-

98, 43 S. Ct. 39. The Court repeatedly made reference

to “the locus of the offense[ }” and “the locus of [the]

crime . . . ina foreign country,” not to extraterritorial

enforcement powers of the United States authorities.

Id. at 97, 99, 43 S. Ct. 39. The court also emphasized

that, by extending the reach of the substantive criminal

statutes at issue, it was not imposing upon the sover-

eignty of other states.” Id. at 102-03, 43 S. Ct. 39.

*6 This basic distinction between the reach of the substantive

criminal laws and the reach of law enforcement makes imminent

sense in light of the myriad ways in which the United States regu-

larly achieves lawful custody of persons located abroad. The

options are many, ranging from purely formal means—such as ex-

tradition pursuant to a treaty or local statute, formal deportation,

and revocation of passports—to purely diplomatic tactics, such as

informal deportation and negotiation. See Abbell, supra, § 7-2, at

7-14—7-17.

77 The Court noted that because three of the defendants charged

were citizens of the United States and were found in New York, “it

is no offense to the dignity or right of sovereignty of Brazil to hold

them for this crime.” Bowman, 260 U.S. at 102, 43 S. Ct. 39. The

Court expressly reserved the question whether the United States

40a

Similarly, when we interpreted the criminal statutes

for which Alvarez was indicted extraterritorially, we

did so only with regard to the location of the conduct at

issue. And even then we did so cautiously to ensure

that we did not unnecessarily impinge on the sover-

eignty of other states or ignore accepted principles of

international law. See Vasquez-Velasco, 15 F.3d at 839-

40; Felix-Gutierrez, 940 F.2d at 1205-06; Chua Han

Mow, 730 F.2d at 1311-12.

Taking the extraterritorial application of the applica-

ble criminal laws as a given, the question then becomes

whether Congress has separately authorized the unilat-

eral, extraterritorial enforcement of those provisions in

a foreign country by agents of the United States. The

United States insists that such authority can be found

in a provision in the Controlled Substances Act, 21

U.S.C. § 878, which grants certain powers to DEA and

other law enforcement personnel.”

had jurisdiction over the fourth defendant, a citizen of Great

Britain. Jd. at 102-03, 43 S. Ct. 39.

2 Section 878 of the Act provides:

(a) Any officer or employee of the Drug Enforcement Ad-

ministration or any State or local law enforcement officer des-

ignated by the Attorney General may—

(1) carry firearms;

(2) execute and serve search warrants, arrest warrants,

administrative inspection warrants, subpoenas, and sum-

monses issued under the authority of the United States;

(3) make arrests without warrant (A) for any offense

against the United States committed in his presence, or (B)

for any felony, cognizable under the laws of the United

States, if he has probable cause to believe that the person to

be arrested has committed or is committing a felony;

4la

Subsection 878(a)(3) of that provision authorizes

DEA agents to make warrantless arrests on probable

cause for suspected felony violations. 21 U.S.C.

§ 878(a)(3). Although this subsection grants DEA

agents felony arrest power, no language in the statute

provides, or even suggests, that Congress intended that

power to extend outside the borders of the United

States. Given that the provision applies to DEA agents

as well as “any State or local law enforcement officer

designated by the Attorney General,” it would in fact

be anomalous to read subsection (3) as the statutory

basis for a geographically limitless arrest power. Nor

can such power be found in the catchall language of

subsection (5), which states that DEA agents, as well as

designated state and local officials, may “perform such

other law enforcement duties as the Attorney General

may designate.” 21 U.S.C. § 878(a)(5). Again, nothing

in the text of the statute remotely indicates that Con-

gress sought to extend DEA arrest authority to any

territory outside American borders.

Although legislative silence is not necessarily dis-

positive, these provisions must be construed against the

backdrop of Aramco’s presumption against extrater-

ritoriality. Even the narrow Bowman exception offers

no safe harbor.” Section 878(a) regulates executive

(4) make seizures of property pursuant to the provisions

of this subchapter; and

(5) perform such other law enforcement duties as the

Attorney General may designate.

21 U.S.C. § 878(a).

* We observe that Bowman’s exception may be limited not only

by its own language, but also in its application. Aramco did not

mention Bowman at any point in its discussion of the presumption

against extraterritoriality. We have interpreted the Court’s

42a

authority, not criminal conduct. And this provision can

hardly be classified as a “criminal statute[ ] which [is]

. not logically dependent on [its] locality for the

Government’s jurisdiction.” Bowman, 260 U.S. at 98,

43 S. Ct. 39. To hold otherwise would essentially

swallow the presumption against extraterritoriality and

grant, without express congressional authorization,

worldwide law enforcement authority to United States

officials (and to state and local officials upon designation

by the Attorney General). Virtually a limitless number

of statutes would have both extraterritorial reach and

the prospect of extraterritorial enforcement. Surely

such a result would all but eviscerate the longstanding

principle that our laws generally apply only within our

territorial borders.

Faced with congressional silence on the matter, the

United States analogizes this case to United States v.

Chen, 2 F.3d 330 (9th Cir. 1993). The issue in Chen was

whether agents of the Immigration and Naturalization

Service acted outside their statutory authority by con-

ducting an undercover investigation into the smuggling

of Chinese aliens into the United States from inter-

national waters. The operation involved planting

silence as an indication that Bowman remains the law. See Felix-

Gutierrez, 940 F.2d at 1205 n.3. The Second Circuit, however, has

held that Bowman should, at best, be interpreted narrowly. See

Kollias v. D&G Marine Maint., 29 F.3d 67, 71 (2d Cir. 1994) (“At

best . . . the holding in Bowman should be read narrowly so as

not to conflict with these more recent pronouncements on extra-

territoriality.”). Although we have implicitly rejected this latter

interpretation, see, e.g., United States v. Corey, 232 F.3d 1166, 1170

(9th Cir. 2000), the Second Circuit’s concerns underscore the fact

that we should not cavalierly cast aside the presumption against

extraterritoriality in the face of the Supreme Court’s recent

jurisprudence.

43a

undercover agents on a chartered boat (the Corinthian)

that rendezvoused with a Chinese ship some 320 miles

off the coast of California. The agents watched and

videotaped as the Chinese aliens boarded the Corin-

thian, keeping the aliens under surveillance during and

after their entry into the United States. Jd. at 332.

In evaluating whether the INS exceeded its

statutory authority, we looked to 8 U.S.C. § 1103(a), the

statute charging the Attorney General with enforce-

ment of the Immigration and Nationality Act, and

determined that Congress had given the Attorney

General “extremely broad powers” to administer and

enforce the immigration laws by directing the Attorney

General to “perform such other acts as he deems nec-

essary for carrying out his authority under the provi-

sions of this chapter.” Chen, 2 F.3d at 333 (citation and

internal quotation marks omitted). We inferred from

the broad language of § 1103(a) that “Congress in-

tended to grant the Attorney General the correspond-

ing power to enforce the immigration laws both within

and without the borders of the United States.” Jd. We

also pointed to § 1103(b), which specifically authorizes

the Attorney General to delegate this broad authority

to the Commissioner of the INS. Finally, we were

careful to note that the Attorney General had in fact

exercised this authority and had explicitly delegated

her broad enforcement powers to the Commissioner

under 8 C.F.R. § 2.1. Id. at 334. This chain of authority,

we reasoned, provided “the legal basis for the INS and

its agents to undertake offshore undercover investiga-

tions such as this one.” Jd.

But this case is not Chen. First, the INS operation in

Chen, which consisted solely of observing and recording

events, did not take place within the boundaries of

44a

another sovereign, but rather in international waters.

That operation—unlike the abduction of a foreign citi-

zen from a friendly neighbor—did not trigger any alle-

gations of a breach of a law of nations. In fact, Chen did

not even address international law, as traditional sover-

eignty concerns were not at issue. This distinction is

critical, for one of the bedrock principles embodied in

the presumption against extraterritoriality is that we

must “protect against unintended clashes between our

laws and those of other nations which could result in

international discord.” Aramco, 499 U.S. at 248, 111 S.

Ct. 1227; see also Kollias, 29 F.3d at 70 (applying the

same rationale). If Chen’s expansion of INS authority

to the high seas did not raise concerns about clashing

with laws of another sovereign, the case before us most

certainly presents that danger.

Second, the demonstrated chain of delegated author-

ity on which Chen relied, extending from Congress to

the Attorney General to the INS Commissioner to the

INS agents, has not been shown to exist with respect to

the DEA. Section 878(a)(3) does grant DEA agents

broad authority to make warrantless arrests, and

§ 878(a)(5) does confer the authority to “perform such

other law enforcement duties as the Attorney General

may designate.” 21 U.S.C. § 878(a)(5) (emphasis

added). But even if Chen were to direct us to infer

extraterritoriality from this bare language—a proposi-

tion that we do not accept—there is no evidence in this

record that the Attorney General has in fact authorized

the DEA Administrator to perform whatever extra-

45a

territorial enforcement powers the Attorney General

may have—either generally or as to this abduction.”

The importance of obtaining specific authorization for

extraterritorial law enforcement operations is brought

into sharper relief by the fact that had the INS opera-

tion in Chen occurred within the boundaries of a foreign

nation, rather than in international waters, the

Attorney General (or the Commissioner, acting under

delegated authority) would have been statutorily

required to consult with the Secretary of State before

deploying INS agents abroad. See 8 U.S.C. § 1103(a)(7)

(“[A]fter consultation with the Secretary of State, [the

Attorney General] may, whenever in his judgment such

* No regulation concerning the DEA’s authority is analogous to

the Attorney General's delegation of authority to the INS Com-

missioner in 8 C.F.R. § 2.1. In any event, there is no evidence that

anyone ranking higher than the DEA Deputy Administrator or the

United States Attorney for the Central District of California ex-

plicitly approved the operation. In view of this delegation vacuum,

perhaps it is no surprise that the Department of Justice now

requires explicit advance approval for such operations:

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. If a prosecutor

anticipates the return of a defendant, with the cooperation of

the sending State and by a means other than an Alvarez-

Machain type rendition, and that the defendant may claim

that his return was illegal, the prosecutor should consult with

the OIA before such return.

Department of Justice, United States Attorneys’ Manual, § 9-

15.610.

46a

action may be necessary to accomplish the purposes of

this chapter, detail employees of the Service for duty in

foreign countries.”). Such a restriction on the Attorney

General’s extraterritorial enforcement power, even in

an area as obviously international as immigration, is

evidence that Congress did not contemplate giving field

agents the authority to act unilaterally in deciding to

cross the borders of a friendly nation and abduct one of

its citizens over that nation’s objection. If the Attorney

General must consult with the Secretary of State before

dispatching INS agents to foreign lands, then surely,

absent explicit statutory authorization, the Deputy

Administrator of the DEA is not free to take it upon

himself to send agents across the border into Mexico or

to hire Mexican bounty hunters to act as surrogates to

abduct a suspect.

Chen thus stands for only the proposition that the

INS possesses limited delegated authority to conduct

an operation on the high seas. At no point did we hold

or even suggest that Congress has given license to the

executive branch to violate international law in the

course of enforcing criminal statutes that have extra-

territorial reach. And surely Chen does not support the

proposition that Congress has sub silencio delegated to

the executive branch the authority to unilaterally enter

a friendly nation and abduct one of its citizens in

violation of international law.

Reading a generally worded statute like 21 U.S.C.

§ 878(a)(5) as evidence that Congress has given the

DEA carte blanche to effectuate arrests within any

sovereign state would require us to make the untenable

assumption that Congress, in drafting such a statute,

turned a blind eye to the interests of equal sovereigns

and the potential violations of international law that

47a

~

would inevitably ensue.” This we cannot do. See

McCulloch, 372 U.S. at 21, 83 S. Ct. 671 (1963) (“{AJn

act of congress ought never to be construed to violate

the law of nations if any other possible construction

remains.’” (quoting Murray v. The Charming Betsy, 6

U.S. (2 Cranch) 64, 2 L.Ed. 208 (1804))).

We are not suggesting that Congress lacks the power

to enact laws authorizing extraterritorial law enforce-

ment powers. Nor do we question the powers of the

political branches to override the principles of sover-

eignty in some circumstances, should the need arise.

Rather, we are simply saying that we cannot impute

such an intent where it is not expressed, and Congress

has expressed no such intent here.”

*! Congress is well aware of the importance of respecting terri-

torial sovereignty, and it has shown caution in expanding extrater-

ritorial jurisdiction at the expense of this obligation. For instance,

in passing the Omnibus Diplomatic Security and Anti-Terrorism

Act of 1986, 22 U.S.C. § 4801 et seq., Congress refused to adopt a

provision authorizing “self-help” measures. See Bills to Authorize

Prosecution of Terrorists and Others Who Attack U.S. Govern-

ment Employees and Citizens Abroad: Hearing on S.1378, S.

1429, and S. 1508, Before the Subcomm. on Security and Terrorism

of the Senate Comm. on the Judiciary, 99th Cong., Ist Sess. 63

(1985). Similarly, in passing the Anti-Drug Abuse Act of 1986,

Congress required the Coast Guard to obtain foreign flag consent

_ to board a foreign flag vessel on the high seas. Pub. L. No. 99-570,

§ 2015, 100 Stat. 3207, 3268 (repealed 1994).

* The dissent believes we should ignore well-established princi-

ples of statutory construction and give Congress the benefit of the

doubt because we have recognized that “[djelegation of foreign

affairs authority is given . . . broader deference than in the do-

mestic arena.” Freedom to Travel Campaign v. Newcomb, 82 F.3d

1431, 1438 (9th Cir. 1996). But Freedom to Travel and the other

non-delegation cases cited by the dissent are inapplicable here.

We have no quarrel with the position that Congress, in giving the

48a

Congress has shown that it is quite capable of making

clear when arrest powers should have extraterritorial

effect. See Aramco, 499 U.S. at 258, 111 S. Ct. 1227

(“Congress’ awareness of the need to make a clear

statement that a statute applies overseas is amply

demonstrated by the numerous occasions on which it

has expressly legislated the extraterritorial application

of a statute.”). In defining the law enforcement powers

of the Coast Guard, for example, Congress provided

that “(t]he Coast Guard may make . . . arrests upon

the high seas and waters over which the United States

has jurisdiction.” 14 U.S.C. § 89(a). The powers of

customs officials on the high seas have likewise been

clearly articulated. See 19 U.S.C. § 1701 (permitting

customs officials to seize or arrest in those areas of the

high seas designated as customs-enforcement areas by

the President).

More recently, in the Military Extraterritorial Juris-

diction Act of 2000," Congress included clear and sepa-

rate provisions pertaining both to the extraterritorial

scope of the substantive crime and the executive

agency’s power to arrest. Section 3261(a), relating to

certain members and employees of the Armed Forces,

Executive authority over matters of foreign affairs, may delegate

authority through broad (albeit not limitless) directives. See

Zemel v. Rusk, 381 U.S. 1, 17, 85 S. Ct. 1271, 14 L. Ed. 2d 179

(1965). Rather, we are simply saying that there is no evidence in

the applicable statutory scheme that Congress ever granted the

DEA the power to conduct arrests abroad. Hence, we do not

address whether 21 U.S.C. § 878 is an impermissible delegation of

congressional power.

33 This legislation was quickly enacted in response to the Second

Cireuit’s decision in United States v. Gatlin, 216 F.3d 207 (2d Cir.

2000), which highlighted a gap in prosecutions of civilian personnel

living abroad with the military.

49a

addresses the extraterritorial scope of the substantive

crime:

Whoever engages in conduct outside the United

States that would constitute an offense punishable

by imprisonment for more than 1 year if the conduct

had been engaged in within the special maritime and

territorial jurisdiction of the United States . . .

shall be punished as provided for that offense.

18 U.S.C. § 3261(a) (emphasis added). Section 3262(a),

pertaining to “arrest and commitment,” explicitly lays

out the scope of arrest powers:

The Secretary of Defense may designate and

authorize any person serving in a law enforcement

position in the Department of Defense to arrest, in

accordance with applicable international agree-

ments, outside the United States any person de-

scribed in section 3261(a) [of the Act] if there is

probable cause to believe that such person violated

section 3261 (a).

18 U.S.C. § 3262(a) (emphasis added).” If Congress

thought it could rely on courts to supply extraterritorial

* The government points to other statutes pertaining to the

military’s powers overseas, such as 10 U.S.C. § 374(b)(1)\(D) and 18

U.S.C. § 351, arguing that these provisions “plainly envision for-

eign law enforcement activity.” We agree. These statutes under-

score the point that Congress is clear when it wishes to be. Section

374(b)(1)(D) allows the Secretary of Defense, upon the request of a

federal law enforcement agency, to make defense personne! avail-

able “to operate equipment” with respect to “a rendition of a sus-

pected terrorist from a foreign country to the United States to

stand trial.” Section 351 allows the FBI to request assistance from

the military, as well as “any Federal, State, or local agency,” in

“investigat[ing]” kidnappings or assassinations of Congressional,

50a

scope through searching interpretations of vague

statutes, no such language would be necessary.

Wishful thinking is no substitute for clear con-

gressional authority. Congress surely knows how and

when to expand the reach of its laws beyond our

borders. There is little doubt that Congress has the

authority to do so; there is also little doubt that it has

not done so here. Thus, although we recognize that the

kidnapping and murder of DEA agents abroad necessi-

tates the exercise of extraterritorial criminal juris-

diction, absent a clear directive, we cannot conclude

that Congress has given the DEA unlimited enforce-

ment powers abroad. Finding no basis in law for the

DEA’s actions, and left only with a warrant issued by a

United States court, we conclude that Alvarez’s arrest,

and hence his detention, were arbitrary because they

were not “pursuant to law.” Consequently, Alvarez

established a tort committed in violation of the law of

nations.

Il. ALIEN TORT CLAIMS ACT—SUBSTITUTION OF

THE UNITED STATES FOR THE DEA AGENTS

We next consider whether the district court appro-

priately substituted the United States for the indi-

vidual government defendants. The Federal Employ-

Cabinet, and Supreme Court members. Not only do these statutes

not speak to military arrest powers, but they define the universe

(e.g., operating equipment or assisting in investigation) in which

Congress has chosen to involve the military in law enforcement

overseas. Section 374(b)(1)(D) is one of a number of provisions,

along with the Posse Comitatus Act, 18 U.S.C. § 1385, that actually

limit military involvement in civilian law enforcement operations.

In considering 10 U.S.C. §§ 371-80, we concluded that “these sec-

tions impose limits on the use ef American armed forces abroad.”

United States v. Khan, 35 F.3d 426, 431 n.6 (9th Cir. 1994).

5la

ees Liability Reform and Tort Compensation Act of

1988 (the “Westfall Act”), 28 U.S.C. § 2679, provides

that, for civil actions arising out of the wrongful act of a

federal employee acting within the scope of his official

duties, the United States is to be substituted as a

defendant and the claims may proceed only under the

FTCA. 28 U.S.C. § 2679(b)(1). This exclusive remedy

provision does not apply, however, in an action “which

is brought for a violation of a statute of the United

States under which such action against an individual is

otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B).

Alvarez argues that the ATCA falls within this

exemption.

But we 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 indivi-

dual DEA agents. Alvarez-Machain IV, 266 F.3d at

1053. Accordingly, we adopt the relevant portion of

that opinion:

The district court held that an action under the

ATCA was not exempt from the exclusive remedy

provision of the Liability Reform Act. It reasoned

that “it is international law, not the ATCA,” that

gives individuals fundamental rights. Therefore, a

claim under the ATCA is based on a violation of

international law, not of the ATCA itself. This

reading is consistent with the Supreme Court’s rea-

soning in United States v. Smith, 499 U.S. 160, 111

S. Ct. 1180, 113 L. Ed. 2d 134 (1991). In Smith, the

Court rejected the argument that a claim for medi-

cal malpractice was “authorized” by the Gonzalez

Act and therefore fit the 28 U.S.C. § 2679(b)(2)(B)

exception for violations of a statute. The court

explained: “(njothing in the Gonzalez Act imposes

52a

any obligations or duties of care upon military physi-

cians. Consequently, a physician allegedly commit-

ting malpractice under state or foreign law does not

‘violate’ the Gonzalez Act.” Smith, 499 U.S. at 174,

111 S. Ct. 1180. The same can be said of the

ATCA. The language of § 1350 creates no obliga-

tions or duties. Admittedly, the ATCA differs from

the Gonzalez Act in that it creates a cause of action

for violations of international law, whereas the Gon-

zalez Act limited the common law liability of doc-

tors. See Marcos II, 25 F.3d at 1475 (rejecting the

argument that the ATCA is merely jurisdictional);

Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir.

1996); Filartiga, 630 F.2d at 885-86. Nonetheless,

we find nothing in this distinction to cause us to

deviate from the plain language of the statute. We

therefore agree with the district court that Alva-

rez’s claims under the ATCA were subject to

substitution under the Liability Reform Act. Ac-

cordingly, Alvarez’s exclusive remedy against the

United States, in lieu of the DEA agents, is through

the FTCA.

Id. at 1053-54.

35 The relevant provision of the Gonzalez Act provides: “

The remedy against the United States provided by [the

FTCA] for damages for personal injury, including death,

caused by the negligent or wrongful act or omission of any

physician . . . of the armed forces . . . while acting within

the scope of his duties or employment . . . shall hereafter be

exclusive of any other civil action or proceeding by reason of

the same subject matter against such physician . . . whose

act or omission gave rise to such action or proceeding.

10 U.S.C. § 1089(a) (1994).

53a

Because the United States is substituted for the

DEA agents, we treat the claims brought against the

agents within the context of the FTCA. See § IV infra.

Ill. ALIEN TORT CLAIMS ACT—DAMAGES

A. CHOICE OF LAW

In addressing the matter of damages related to

Sosa’s liability under the ATCA, we must first deter-

mine the applicable substantive law. We review de

novo the district court’s decision concerning the appro-

priate choice of law. Abogados v. AT&T, Inc., 223 F.3d

932, 934 (9th Cir. 2000).

Two obvious choices present themselves in this cross-

border dispute: the domestic law of the United States

and that of Mexico. The district court chose to apply

federal common law, rather than Mexican law, in fash-

ioning a damages award for Sosa’s ATCA violations.

‘The court reasoned that Mexican law would “inhibit the

appropriate enforcement of the applicable international

law or conflict with the public policy of the United

States.” Alvarez-Machain v. United States, No. 93-

4072, slip op. at 33 (Sept. 9, 1999) (quoting Filartiga v.

Pena-Irala (“Filartiga II”), 577 F. Supp. 860, 864

(E.D.N.Y. 1984)).

The precise issue before us, the choice of law for

damages under the ATCA, is one of first impression. In

Marcos III, we construed the district court’s award of

exemplary damages as having embraced Philippine law

and concluded that this was not an error because such

damages were allowed under Philippine law. 103 F.3d

at 779-80. Our holding in Marcos III, however, went no

further. We did not review the district court’s choice of

law analysis or enumerate the circumstances in which

foreign law would apply. See id. (noting that there was

54a

“no ruling by the district court expressly choosing

Philippine law”).

The few courts that have addressed damages under

the ATCA do not appear to have followed a consistent

approach in determining the applicable law. Perhaps

the most explicit treatment of the issue was offered by

the district court in the Filartiga litigation. When

faced with the question of damages on remand, the

district court decided, in light of the ATCA’s purpose,

that federal choice of law principles should govern the

initial determination of the remedy. See Filartiga I],

577 F. Supp. at 863. Applying these principles in the

broadest of terms, the court noted that virtually all of

the contacts took place in Paraguay, and thus Para-

guayan law appeared to be appropriate for setting

compensatory damages. Jd. at 863-64. The court took a

different tack, however, on punitive damages. Because

Paraguay did not recognize punitive damages, which

were deemed necessary “to give effect to the manifest

objectives of the international prohibition against tor-

ture,” the court turned to international law principles.

Id. at 865.

Other courts awarding damages in the wake of

Filartiga II have adopted a number of approaches.

Most courts have not directly addressed the choice of

law dilemma, while others have offered variations on

the Fiiartiga II theme. See, e.g., Tachiona v. Mugabe,

234 F. Supp. 2d 401, 418-22 (S.D.N.Y. 2002) (addressing

the choice of law issue, but abandoning a traditional

choice of law analysis in favor of a more “flexible”

approach for determining both substantive rights and

remedies); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322,

1358-59 (N.D. Ga. 2002) (conducting no choice of law

analysis but making repeated references to “inter-

55a

national law” in awarding both compensatory and puni-

tive damages); Xuncax, 886 F. Supp. at 183, 198 (using

an analysis similar to that of Tachiona); Avril, 901 F.

Supp. at 335 (citing Filartiga II for the position that

both compensatory and punitive damages are available

but providing no indication as to which law was

applied).

Mindful of this varied landscape, we begin our in-

quiry with a traditional choice of law analysis. As the

Supreme Court has counseled, “{cJhoice of law is, of

course, determined by the forum jurisdiction,” Zicher-

man, 516 U.S. at 228-29, 116 S. Ct. 629, which in this

case is federal court. Federal question jurisdiction was

predicated on the ATCA and thus federal common law

applies to the choice-of-law determination. See Chan v.

Soc’y Expeditions, Inc., 123 F.3d 1287, 1297 (9th Cir.

1997) (holding that federal common law applies to

choice-of-law determination in federal question case).””

% It bears noting that most of the cases addressing damages

under the ATCA have done so without the benefit of, or without

reference to, Zicherman v. Korean Air Lines Co., 516 U.S. 217,

229, 116 S. Ct. 629, 133 L. Ed. 2d 596 (1996), in which the Supreme

Court interpreted the damages provisions of the Warsaw Con-

vention and concluded that it does not “empower us to develop

some common-law rule—under cover of general admiralty law or

otherwise—that will supersede the normal federal disposition.”

The Court held that the Convention “provide{d] nothing more than

a pass-through, authorizing us to apply the law that would govern

in the absence of the Warsaw Convention,” which in that case was

the Death on the High Seas Act, 46 U.S.C. App. § 761. Zicherman,

516 U.S. at 229, 116 S. Ct. 629.

* Although the Second Circuit observed in Pescatore v. Pan

American World Airways, Inc., 97 F.3d 1, 12 (2d Cir. 1996), that

“the law is unsettled when it comes to applying either a federal

common law choice of law rule or state choice of law principles in

non-diversity cases,” we believe that both Zicherman and our

56a

Under federal common law, we look to the Restatement

(Second) of Conflict of Laws (“Restatement of Con-

flicts”) for guidance. Schoenberg v. Exportadora de

Sal, S.A., 930 F.2d 777, 782 (9th Cir. 1991) (explaining,

in the context of the Foreign Sovereign Immunities

Act, that “[f]ederal common law follows the approach of

the Restatement (Second) of Conflict of Laws”); see

also Bickel v. Korean Air Lines Co., 88 F.3d 127, 130

(6th Cir. 1996) (noting, in the context of the Warsaw

Convention, that “{iJn the absence of any established

body of federal choice of law rules, we begin with the

Restatement (Second) of Conflict of Laws .. . .”)

Section 145" of the Restatement, which delineates

the general principles applicable to torts, states that

the “rights and liabilities of the parties with respect to

an issue in tort are determined by the local law of the

state which, with respect to that issue, has the most

significant relationship to the occurrence and the

parties under the principles stated in § 6." The

precedent support the application of federal common law conflicts

principles.

38 Sosa urges us to look to § 146 of the Restatement which pro-

vides, with respect to personal injury actions, that there is a

presumption in favor of applying “the local law of the state where

the injury occurred,” which in this case was Mexico. But the tort

here—arbitrary arrest and detention as a recognized violation of

international law—is not a classic personal injury claim. Nor does

Alvarez’s claim “involve either physical harm or mental distur-

bance . . . resulting from physical harm” as envisioned by § 146.

Restatement of Conflicts § 146 cmt. b. Finally, the presumption is

not absolute and other considerations weigh in favor of applying

United States law.

39 The factors in § 6 include:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

57a

section continues by listing the following “contacts”

that should “be taken into account in applying the

principles of § 6 to determine” the state with the “most

significant relationship”:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury

occurred,

(c) the domicil, residence, nationality, place of in-

corporation and place of business of the parties, and

(d) the place where the relationship, if any, be-

tween the parties is centered.

Id. § 145(2).

These principles are meant to serve as a guide for

consideration of competing policy choices. The factors,

coupled with the contacts, are not necessarily of equal

weight, nor do they lend themselves to a bean-counting

exercise in which everything is lined up on a ledger and

the answer emerges. Indeed, as noted in the comment,

“[a]t least some of the factors . . . will point in differ-

(c) the relevant pclicies of other interested states and the

relative interests of those states in the determination of the

particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result. and

(g) ease in the determination and application of the law to be

applied.

Id. § 6(2).

58a

ent directions in all but the simplest case.” Jd. § 6 emt.

c. This international dispute illustrates in practical

terms the reality of that admonition. In a claim based

on a universal, international standard, it may seem pre-

sumptuous to choose the law of one country over

another. Admittedly, the needs of the international

system are often too complex to dictate a clear choice,

in part because our task is limited to a legal analysis

and we leave foreign policy to the Executive branch

and the diplomats. Nonetheless, we are driven to make

a choice so that damages may be assessed in accord

with the substantive law of a chosen jurisdiction.

Stepping back and looking at the overall picture, we

view this case as a series of events that began and

ended in the United States, and which are inextricably

intertwined with the United States government. The

United States’ interests are particularly pointed here:

the United States itself is a party, and it is the conduct

of the United States government, in its efforts to bring

a suspect to justice, that spawned the international

incident. The genesis of the crucial events was a

federal criminal prosecution of Alvarez in Los Angeles.

DEA agents working in the United States devised a

plan, which they hired Sosa to carry out, and without

which the tort would not have occurred. Sosa acted

according to DEA instructions when he helped detain

Alvarez and transport him to the United States for

trial. Sosa himself had no justifiable expectation that

Mexican law would apply, particularly because he was

employed as an agent of the American government, and

because this is a tort, rather than a contract, case. The

relationship between Sosa and Alvarez was intimately

connected with, and a direct product of, the interests of

the United States government. Just as importantly,

59a

the tort is predicated on an arrest and detention that

were arbitrary because the agents exceeded the scope

of their authority under United States law.

As Sosa points out, some of the Restatement factors

weigh in favor of applying Mexican law. Alvarez’s

actual arrest occurred in Mexico. Both Alvarez and

Sosa were Mexican citizens and residents at the time of

the events in question (although Sosa later moved to

the United States). As a result, Mexico may in fact

have competing interests—seeking to obtain compensa-

tion for its citizen, Alvarez, while limiting damages

from Sosa, another of its citizens.

Nonetheless, we must also take into account the

policy of the United States, as expressed in the ATCA,

to provide a remedy for violations of the law of nations.

See Marcos II, 25 F.3d at 1475. We agree with the dis-

trict court that limitations on damages under Mexican

law—including the unavailability of punitive damages—

are not consistent with the congressional policy that

underlies the ATCA.

After weighing these factors, we conclude that the

relative importance of United States contacts and inter-

ests counsels in favor of applying United States law.

Our ruling today does not foreclose the application of

foreign law in another circumstance; it is simply the

appropriate outcome given the factors and policies

present in this suit.

Our choice of law conclusion brings us to another

level of inquiry: In applying United States law, should

we apply federal common law or the law of California?

We are aware of the Supreme Court’s view that we

should not reach out to extend federal common law. See

O'Melveny & Myers v. FDIC, 512 U.S. 79, 83-84, 114 S.

60a

Ct. 2048, 129 L. Ed. 2d 67 (1994); see also Kamen v.

Kemper Fin. Servs., Inc., 500 U.S. 90, 98, 111 S. Ct.

1711, 114 L. Ed. 2d 152 (1991) (explaining the presump-

tion in favor of incorporating state law to provide the

content of federal common law, and that “a court should

endeavor to fill the interstices of federal remedial

schemes with uniform federal rules only when the

scheme in question evidences a distinct need for nation-

wide legal standards . . . or when express provisions

in analogous statutory schemes embody congressional

policy choices readily applicable to the matter at

hand..... ”).

On the other hand, because the ATCA invokes inter-

national law principles of universal concern, it holds a

unique place among federal statutory tort causes of

action, and application of federal common law is there-

fore appropriate.” See Texas Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 641, 101 S. Ct. 2061, 68 L.

Ed. 2d 500 (1981) (observing that, in “international

disputes implicating . . . relations with foreign nations

. . . our federal system does not permit the contro-

versy to be resolved under state law” because the “in-

ternational nature of the controversy makes it inap-

propriate for state law to control”); see also Sabbatino,

376 U.S. 398, 427 n.25, 84 S. Ct. 923, 11 L. Ed. 2d 804

(1964) (noting that the ATCA is an example of a statute

reflecting a “concern for uniformity in this country’s

dealings with foreign nations”).

B. SCOPE OF DAMAGES

The district court determined that Alvarez could

recover damages only for activities taking place prior to

# Although we apply federal common law, we note that, as dis-

cussed below, the result would be the same under state law.

. 6la

the point that United States law enforcement authori-

ties took him into custody, not for the entire period in

which he was imprisoned in the United States. We

review this question of law de novo. See United States

v. Stephens, 237 F.3d 1031, 1033 (9th Cir. 2001).

There is no established body of case law applying

federal common law to determine the proper scope of

damages for arbitrary arrest and detention. Although

several federal cases have awarded damages for this

brand of international law violation, none of those cases

dealt with the unique set of facts presented here. See,

e.g., Xuncazx, 886 F. Supp. at 197-98 (awarding damages

for arbitrary detention authorized by Guatemala’s

Minister of Defense). Even so, we agree with the dis-

trict court that existing principles governing false

arrest provide adequate guidance.

In the context of law enforcement, the federal courts

are largely in accord that, consistent with the principles

of tort law, the chain of causation set in motion by the

initial act of misconduct of one actor can be broken by

the acts of a third party. For example, police officers

have been held to be insulated from liability for de-

privations of liberty where there are independent, in-

tervening acts of other decision-makers in the criminal

justice system, such as prosecutors, grand juries, or

judges. See Heck v. Humphrey, 512 U.S. 477, 484, 114

S. Ct. 2364, 129 L. Ed. 2d 383 (1994) (“ ‘If there is a false

arrest claim, damages for that claim cover the time of

detention up until issuance of process or arraignment,

but not more.’” (quoting W. Keeton, D. Dobbs, R.

Keeton, & D. Owen, Prosser & Keeton on the Law of

Torts 888 (5th ed. 1984))); Townes v. City of New York,

176 F.3d 138, 147 (2d Cir. 1999) (holding that the trial

judge’s independent decision not to suppress evidence,

62a

though erroneous, broke the chain of causation for pur-

poses of police officer’s liability); Barts v. Joyner, 865

F.2d 1187, 1195 (11th Cir. 1989) (holding that interven-

ing acts of prosecutor, grand jury, and judge broke

chain of causation); Hand v. Gary, 838 F.2d 1420, 1427-

28 (5th Cir. 1988) (holding that a sheriff’s actions were

not the proximate cause of damages given intervening

acts of federal agents, federal prosecutors, and grand

jury). In this connection, we have held that the “[fliling

of a criminal complaint immunizes investigating officers

_ . . from damages suffered thereafter because it is

presumed that the prosecutor filing the complaint exer-

cised independent judgment in determining that prob-

able cause for an accused’s arrest exists at that time.”

Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981).

These principles of proximate causation, taken in

combination with the Supreme Court’s holding in

Alvarez-Machain II, guide us in assessing the scope of

Sosa’s liability. Sosa’s participation in Alvarez’s arrest

and detention in this case took place almost solely

within the confines of Mexico. Although he was guided

by the unlawful directives of American DEA agents,

once he delivered Alvarez to United States authorities

in El Paso, the actions of domestic law enforcement set

in motion a supervening prosecutorial mechanism which

met all of the procedural requisites of federal due

process and ultimatel, received the blessing of the

41 Our holding in Smiddy was limited. We concluded that the

presumption that the prosecutor exercised independent judgment

can be rebutted by, for instance, “a showing that the [prosecutor]

was pressured or caused by the investigating officers to act con-

trary to his independent judgment,” or by “the presentation by the

officers to the [prosecutor] of information known by them to be

false.” 665 F.2d at 266-67.

63a

United States Supreme Court. See Alvarez-Machain

II, 504 U.S. at 669-70, 112 S. Ct. 2188. To be sure, a

grand jury had already indicted Alvarez and an Ameri-

can arrest warrant had been issued by the time Sosa

was hired, giving this case a unique factual twist when

compared to traditional false arrest cases. But, as we

have explained, these procedural formalities stand

apart from the illegitimacy that characterized Alvarez’s

initial arrest and detention, and came into operation

only at the moment Alvarez set foot on U.S. soil. At

that point, the criminal justice system, with proper

jurisdiction, began its march toward trial and the chain

of causation linked to Sosa’s actions was broken, thus

limiting Sosa’s liability for damages. Because the dis-

trict court cited California law for its damages analysis,

the parties focus on the nuances of California law,

despite framing the issue in terms of choosing either

federal common law or Mexican law. Applying Califor-

nia law, however, yields the same result. The California

Supreme Court recently rejected a plaintiff’s claim of

false imprisonment for the entire time he was held in

custody. See Asgari v. City of Los Angeles, 15 Cal. 4th

744, 63 Cal. Rptr. 2d 842, 937 P.2d 273, 281 (1997).

Relying on state statutes, the court explicitly distin-

guished the rebuttable presumption rule of Smiddy,

clarifying that a police officer’s liability for false arrest

could not, even with a showing of bad faith, include

damages caused by incarceration following arraignment

because that result would thwart the applicable

statutes’ directives. Jd. at 279.

Alvarez seeks to distinguish Asgari by arguing that

it is a narrow holding based only on immunity principles

grounded in the California Tort Claims Act, specifically

Cal. Gov. Code §§ 820.4 and 821.6. Instead, he urges us

64a

to rely on an earlier case, Gill v. Epstein, 62 Cal. 2d 611,

44 Cal. Rptr. 45, 401 P.2d 397 (1965), which held, prior

to the enactment of the above provisions, that a plaintiff

could recover damages arising from his incarceration

after his arraignment because the arraignment was not

an independent act that could break the chain of

causation. Jd. at 401. But Gill does not help Alvarez.

In Gill, the plaintiff was arrested without a warrant,

and the case was dismissed at a preliminary hearing

five days after the arraignment. Id. at 398-99. The

court held that the plaintiff could recover for damages

up until the time an independent judgment was made as

to probable cause for his arrest. See id. at 401. Here,

there is no question that at the time Alvarez was

arrested, an independent judgment had already been

made that he should be brought to trial.” As a result,

Alvarez is entitled to damages only to the point at

which he was handed over to U.S. authorities.

Iv. FEDERAL TORT CLAIMS ACT

The FTCA acts as a limited waiver of the sovereign

immunity of the United States for certain torts com-

mitted by its employees. 28 U.S.C. §§ 1346(b), 2674.

The statute provides that the United States shall be

“liable . . . in the same manner and to the same extent

as a private individual under like circumstances.” 28

42 Although we decline to speak for the California Supreme

Court as to the status of Gill after Asgari, we note also that in

Asgari the court looked not only to statutory immunity principles

but also to the broader proximate cause principles articulated in

New York’s Broughton rule, which measures liability only up to

the time of arraignment or indictment, whichever comes first. See

Asgari, 63 Cal. Rptr. 2d 842, 937 P.2d at 281 n.10 (citing Broughton

vy. State, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310, 316

(1975)).

65a

U.S.C. § 2674. At issue here is whether Alvarez’s

claims fit within the FTCA’s waiver provision or in-

stead fall specifically within any of the statutory exclu-

sions to FTCA jurisdiction—in particular, the “foreign

activities” exception or the “intentional tort” exception.

The United States argues that Alvarez’s kidnapping

lies outside the jurisdiction of the FTCA. But we agree

with the district court that neither exception applies.

A. “FOREIGN ACTIVITIES” EXCEPTION

The foreign activities exception bars recovery for

“[aJny claim arising in a foreign country.” 28 U.S.C.

$ 2680(k). Its purpose is “to ensure that the United

States is not exposed to excessive liability under the

laws of a foreign country over which it has no control.”

Nurse v. United States, 226 F.3d 996, 1003 (9th Cir.

2000). The district court held that many of Alvarez’s

claims, such as assault and the resulting infliction of

emotional distress, derived from acts that took place

entirely in Mexico and so were excluded under the

ATCA. Alvarez does not appeal that decision.

But the district court permitted other claims—false

arrest, false imprisonment, and the resulting infliction

of emotional distress—to go forward under the “head-

quarters doctrine.” Because “[t]he entire scheme of the

FTCA focuses on the place where the negligent or

wrongful act or omission of the government employee

occurred,” Sami v. United States, 617 F.2d 755, 761

(D.C. Cir. 1979), a claim ean still proceed under the

headquarters doctrine if harm occurring in a foreign

country was proximately caused by acts in the United

States. See Nurse, 226 F.3d at 1003; see also Cominotto

v. United States, 802 F.2d 1127, 1130 (9th Cir. 1986)

(holding that an FTCA claim arises where an act or

66a

omission occurs and “not necessarily at the site of the

injury or the place where the negligence has its opera-

tive effect” (internal quotation marks omitted)).

The quintessential headquarters claim involves fed-

eral employees working from offices in the United

States to guide and supervise actions in other countries.

See Nurse, 226 F.3d at 1003 (applying the doctrine to

FTCA claims made by a Canadian detained in Van-

couver, British Columbia, against the U.S.-based Cus-

toms officials who trained the Vancouver agents);

Couzado v. United States, 105 F.3d 1389, 1395-96 (11th

Cir. 1997) (applying the doctrine to claims against DEA

agents in the United States who coordinated an arrest

in Honduras); Sami, 617 F.2d at 761-63 (applying the

doctrine to claims against the Chief of the United

States National Central Bureau in Washington, D.C.,

who sent messages causing an improper arrest in Ger-

many). In evaluating whether the headquarters doc-

trine applies, we look to the law of the state where the

alleged act occurred—in this case, California. See 28

U.S.C. § 1346(b)(1); Couzado, 105 F.3d at 1395 (applying

Florida law to determine whether the doctrine applies

to alleged negligence by DEA officials who were based

in Florida and caused harm in Honduras).

Alvarez’s abduction fits the headquarters doctrine

like a glove. Working out of DEA offices in Los

Angeles, Berellez and his superiors made the decision

to kidnap Alvarez and, through Garate, gave Barragan

precise instructions on whom to recruit, how to seize

Alvarez, and how he should be treated during the trip

to the United States. DEA officials in Washington,

D.C., approved the details of the operation. After

Alvarez was abducted according to plan, DEA agents

supervised his transportation into the United States,

67a

telling the arrest team where to land the plane and

obtaining clearance in E] Paso for landing. The United

States, and California in particular, served as command

central for the operation carried out in Mexico.

By contrast, we see little resemblance to the facts of

Cominotto, in which we rejected the DEA informant’s

headquarters claim because he had disobeyed Secret

Service orders by jumping into the suspects’ car late

one night in Bangkok. 802 F.2d at 1130. Alvarez did

little but serve as an unsuspecting target of an opera-

tion planned in the United States. Under California

_ law, negligent or criminal acts carried out by Alvarez’s

abductors in furtherance of the objectives given to

them by American DEA agents “do not break the

causal link between” the conduct of the DEA agents

and Alvarez’s injuries. Vickers v. United States, 228

F.3d 944, 956 (9th Cir. 2000). The arrest team’s seizure

of Alvarez was not the interruption, but the fulfillment,

of the DEA agents’ tortious acts. The events for which

Alvarez seeks relief occurred precisely as the DEA

intended.

The United States offers little to support its alter-

native argument that, even if applicable, the head-

quarters doctrine does not apply to intentional torts.

We see no valid reason to distinguish between negli-

gence and intentional torts when the purpose of the

doctrine is to hold the federal government responsible

where the plaintiff’s injuries are proximately caused by

conduct in the United States. Sami, 617 F.2d at 762

(noting that examination of the legislative history

shows that the foreign activities exception “does not

apply if the wrongful acts or omissions complained of

occur in the United States” (emphasis added)). We hold

that the headquarters doctrine applies to both negli-

68a

gence and intentional torts. Alvarez’s kidnapping claim

therefore does not fall within the foreign activities

exception.

B. “INTENTIONAL TORT” EXCEPTION

We also agree with the district court that Alvarez’s

claims do not fall within the “intentional tort” exception

to the FTCA. See 28 U.S.C. § 2680(h).” Although the

waiver of sovereign immunity under the FTCA ex-

cludes intentional torts such as false arrest, this exclu-

sion is followed by an important proviso: It does not

apply if the intentional tort is committed by an “investi-

gative or law enforcement officer.” Id. See also Orsay

v. United States Dep’t of Justice, 289 F.3d 1125, 1134

(9th Cir. 2002) (noting that Congress chose “to single

out investigative and law enforcement officers from

other federal employees” because their “authority to

use force and threaten government action carries with

it the risk of abuse, or the risk of intentionally tortious

conduct”).

43 The Act provides an exception for

(h) Any claim arising out of assault, battery, false imprison-

ment, false arrest, malicious prosecution, abuse of process,

libel, slander, misrepresentation, deceit, or interference with

contract rights: Provided, That, with regard to acts or omis-

sions of investigative or law enforcement officers of the United

States Government, the provisions of this chapter and section

1346(b) of this title shall apply to any claim arising, on or after

the date of the enactment of this proviso, out of assault,

battery, false imprisonment, false arrest, abuse of process, or

malicious prosecution. For the purpose of this subsection,

“investigative or law enforcement officer” means any officer of

the United States who is empowered by law to execute

searches, to seize evidence, or to make arrests for violations of

Federal law.

69a

The DEA agents who orchestrated Alvarez’s arrest

are law enforcement officers as defined by the FTCA

because they are “empowered by law to execute

searches, to seize evidence, or to make arrests for viola-

tions of Federal law.” 28 U.S.C. § 2680(h). Because the

primary tortious act was the initiatior. and planning of

Alvarez’s abduction by the DEA agents, his claim falls

squarely within this law enforcement proviso, and thus

the intentional tort exclusion does not apply.

The purpose of the law enforcement proviso in

§ 2680(h) is to “providfe] a remedy against the Federal

Government for innocent victims of Federal law en-

forcement abuses.” Orsay, 289 F.3d at 1134-35 (quoting

S. Rep. No. 93-588, 93d Cong., 2d Sess. 3 (1973), re-

printed in 1974 U.S. Code Cong. & Admin. News 2789,

2792 (1974)). As the original three-judge panel put it,

this purpose would be manifestly frustrated if law

enforcement officers could avoid liability by recruiting

civilians “to do their dirty work.” Alvarez-Machain IV,

266 F.3d at 1056.

Because neither the “foreign activities” exception nor

the “intentional tort” exception applies, we proceed to

the merits of Alvarez’s false arrest claim under the

FTCA.

C. FALSE ARREST CLAIM

The parties agree that if no exception applies, Cali-

fornia law determines whether and to what extent the

United States is liable. See 28 U.S.C. § 1346(b)(1).

Because “[uJnder California law, a California court

would apply federal law to determine whether an arrest

by a federal officer was legally justified and hence privi-

leged,” the United States’ liability hinges on whether

federal employees “complied with applicable federal

70a

standards” in seizing Alvarez. Rhoden v. United

States, 55 F.3d 428, 431 (9th Cir. 1995) (per curiam).

The government argues that there is no California false

arrest because federal law authorized Alvarez’s appre-

hension in Mexico. Our earlier discussion of liability

under the ATCA applies with equal force to our

analysis of the FTCA claims against the United States.

The DEA agents had no authority under federal law to

execute an extraterritorial arrest of a suspect indicted

in federal court in Los Angeles. See supra at § I.B.2.

Notwithstanding the fact that California law looks to

federal law to determine the lawfulness of an arrest by

federal officers, the district court concluded that

Alvarez’s abduction could still be justified as a citizen

arrest under California law. The United States urges

us to reach the same conclusion, arguing that, in certain

situations, California’s citizen arrest provision author-

izes federal agents to make arrests even where federal

authority is lacking.“ See United States v. DeCatur,

430 F.2d 365, 367 (9th Cir. 1970) (noting that the arrest

of the plaintiff by federal postal agents would have been

justified under California Penal Code § 837, even if the

agents lacked authority under a federal statute), People

v. Crusilla, 77 Cal. App. 4th 141, 91 Cal. Rptr. 2d 415,

421 (1999) (holding that a federal immigration inspec-

tor’s arrest of defendant was authorized as a citizen

arrest). |

Reliance on the California law of citizen arrest is

misplaced in this context. Although the FTCA holds the

United States liable in the same way that a private

44 California Penal Code § 837 permits a private citizen to arrest

a person “({wJhen a felony has been in fact committed, and he has a

reasonable cause for believing the person arrested to have com-

mitted it.”

Tla

person would be liable “under like circumstances,” 28

U.S.C. § 2674, the law enforcement obligations and

privileges of the DEA agents “make the law of citizen

arrests an inappropriate instrument for determining

FTCA liability.” Arnsberg v. United States, 757 F.2d

971, 979 (9th Cir. 1985); see also 21 U.S.C. § 878(a)(2);

Ting v. United States, 927 F.2d 1504, 1514 (9th Cir.

1991) (citing Arnsberg). In Arnsberg, we declined to

require Internal Revenue Service agents, who arrested

the plaintiff with a defective warrant, to meet the

stricter standard for citizen arrests under Oregon law.

757 F.2d at 978-79. Instead, we concluded, “(t]he

proper source for determining the government’s liabil-

ity” is “the law governing arrests pursuant to war-

rants.” Jd. at 979. Applying that law, we determined

that the agents acted properly. /d.

The principle adopted in Arnsberg works both ways:

just as the law of citizen arrest cannot be used to limit

the authority of law enforcement officers, nor can it be

used to extend that authority, by proxy, beyond its

territorial limits.“ The DEA agents, not the Mexican

nationals, ide:.tified Alvarez and planned the operation

in detail; Alvarez’s abductors acted merely as pawns.

the county where the arrest occurred. See Cal. Penal Code § 852.2.

However, these provisions do not authorize a planned, transborder

abduction of an alien by either law enforcement authorities or

private citizens.

72a

In this situation, the law of citizen arrest simply does

not apply.

Although, as in Arysverg, we apply the law gov-

erning arrests pursuant to warrants, we see a world of

difference between the acts of the law enforcement

officers in Arnsberg and the DEA agents who planned

Alvarez’s abduction. In Arnsberg, the IRS officials

acted “nearly perfectly,” consulting with the United

States Attorney and arresting the plaintiff pursuant to

a warrant with only a minor discrepancy. Arnsberg,

757 F.2d at 979. In contrast, as we have discussed, the

DEA agents here had no authority, statutory or other-

wise, to effect an extraterritorial arrest. Nor did their

minions across the border, who could no more claim a

lawful privilege to arrest Alvarez than could the DEA

agents themselves under the same circumstances. The

district court that issued Alvarez’s arrest warrant had

no jurisdiction to issue a warrant for an arrest in

Mexico. See Fed. R. Crim. P. 4(c)(2). Accordingly, the

DEA agents authorized a false arrest against Alvarez.

We reverse the district court’s dismissal of the FTCA

claims and remand for further proceedings.

CONCLUSION

In summary, we affirm the judgment with respect to

Sosa’s liability under the ATCA, albeit on different

grounds than the district court. We also affirm the

substitution of the United States for the DEA agents,

the choice of United States rather than Mexican law to

determine damages, and the limitation of damages to

Alvarez’s time in captivity in Mexico. We reverse and

remand the district court’s dismissal of the FTCA

claims against the United States. We approve the

dismissal of Garate. Each party shall bear its own costs

on appeal.

73a

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

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 sover-

eignty 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 offi-

cials 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

74a

soil is no ordinary law enforcement choice; rather, itisa

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 paygrade 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 Gruden 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 There are some indications that individuals in the Attorney

General’s office were informed of the plan. At an evidentiary hear-

i 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

United States produced during discovery. According to the memo-

randum, 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.” How-

75a

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, J udge Gould’s dissent

is predicated on the notion that “extraordinary rendi-

tions” 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 re-

view and approval at various levels within the Depart-

ment of Justice:

ever, 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

nothing more than that the Attorney General’s office had knowl-

edge of the operation. They do not support the further conclusion

that the Attorney General explicitly sanctioned Alvarez’s extrater-

ritorial abduction.

76a

On August 21, 1991, the Undercover Operations

Review Committee of the United States Depart-

ment of Justice (Review Committee) authorized the

INS agents to proceed with the proposed under-

cover 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 Committee guidelines spe-

cifically contemplate an INS “undercover operation

(that) will be conducted substantially outside the

United States.” INS Undercover Operation Guide-

lines at IV.A.(2). The operation was also approved

by the United States Attorney for the Central Dis-

trict of California and an Assistant Attorney Gen-

eral 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 enforce-

ment 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

77a

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

authority, but rather cautioned that the FBI may

violate international law only “at the direction of the

President or the Attorney General.” Jd. at 183. Indeed,

the Opinion was even more explicit, and cautionary, in

its advice regarding the extent and exercise of author-

ity “to override customary international law” in, for

example, forcibly abducting a suspect from another

country without that country’s consent. Jd. 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 enforce-

ment activities and that the President need not

personally approve such actions. We would not rec-

ommend, however, that the Attorney General dele-

gate the authority to more subordinate officials.

Even if he is viewed as exercising statutory author-

ity . . . 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

78a

to make political decisions affecting our interna-

tional 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 dele-

gated to the Attorney General the authority to deter-

mine 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 Attor-

ney 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.” See 8 C.F.R.

2 Moreover, as I explained earlier, the INS agents who planned

the operation in Chen sought high-level approval from the De-

partment of Justice despite this general delegation of the Attorney

General’s authority.

79a

§ 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 ex-

traterritorial enforcement of those statutes. The

extraterritorial application and the extraterritorial en-

forcement 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 officers

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 enforce-

ment.

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

80a

authority to override another nation’s territorial sover-

eignty—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 extra-

territorial 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.

O’SCANNLAIN, Circuit Judge, with whom Circuit

Judges RYMER, KLEINFELD, and TALLMAN join, dis-

senting:

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 non-existent cooperation from

foreign nations. 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 so doing, 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.

1 Perhaps cognizant that its analysis cannot bear its own

weight if applied more broadly, the majority recites that we need

8la

What makes this astounding pronouncement even

more perverse is that our court divines the entitlement

to recovery from the Alien Tort Claims Act (“ATCA”),

28 US.C. § 1350, a statute first enacted over 200 years

ago by members of the First Congress, many of whom

were Framers of our nation’s Constitution. With

utmost respect to the majority, there is simply no basis

in our nation’s law for this bewildering result, and the

implications for our national security are so ominous

that I must dissent.

I

Notwithstanding the majority’s lengthy disquisitions

concerning various theories and sources of international

not worry because its holding “is a limited one.” Supra at [4a].

Count me, however, among those unassuaged by the majority’s as-

surances. | believe that impermissibly encroaching upon the

duties rightfully reserved to the political branches is of serious

consequence, and unfortunately such encroachment establishes a

very troubling precedent which we will regret. Indeed, the

majority’s attempt to distinguish the circumstances of this case

from other overseas operations conducted by our nation’s military

and law enforcement personnel may not prove to be so facile. One

of the many vexing questions implicated by its opinion, but left un-

answered by the majority, is what are we to make of sub-agencies

within the Department of Homeland Security, as well as the Fed-

eral Bureau of Investigation (“FBI”), the Drug Enforcement Ad-

ministration (“DEA”), the Bureau of Alcohol, Tobacco, and Fire-

arms (“ATF”), and other law enforcement agents who aid and

assist in the war against terrorism and efforts to protect homeland

security by capturing known terrorists and criminals in foreign

locales across the globe? Unless the majority believes that every

use of transborder arrest by the Executive branch falls within “its

power to detain under the war powers of Article II,” supra at [4a]

(quoting Hamdi v. Rumsfeld, 316 F.3d 450, 473 (4th Cir. 2003))—

which is obviously not the case—no rational observer can honestly

say that our court’s holding today “is a limited one.”

82a

law, the central issue in this case is very simple: Do

American law enforcement agents violate well-estab-

lished principles of American jurisprudence when they

apprehend a duly-indicted suspect outside the confines

of our nation’s borders?” The answer is clearly no; the

United States has neither now nor ever agreed to an

asserted international law principle prohibiting the

practice of transborder abduction.’

The majority, perhaps overlooking the grandeur of

the forest while gazing with much admiration at the

trees, meanders through various sources which suggest

how pleasant it would be if transborder abduction were

actionable. However, the majority’s searching inquiry

into the scope of international law is simply unneces-

sary. The ATCA is a congressionally enacted statute;

2 As an initial matter, I am sympathetic with many of the

separation of powers concerns expressed in Judge Gould’s separate

dissent. Indeed, I share a similar apprehension that the majority’s

approach could have dire consequences if applied to our nation’s

current military and law enforcement operations overseas.

However, interestingly enough, the government, neither in its

brief on cross-appeal nor its amicus brief, argued for the applicabil-

ity of the political question doctrine. In any event, under our pre-

cedent, I believe that Alvarez, while not entitled to relief, has

stated a justiciable claim under the ATCA.

3 | agree with the majority that Alvarez lacks standing to ob-

tain redress under the ATCA for Sosa’s and the DEA agents’

alleged infraction against Mexican sovereignty; state-on-state inju-

ries like the one Alvarez alleges here are singularly inappropriate

for assertion of third-party rights by foreign citizens.

Moreover, I agree with the majority that Alvarez’s claim for

transborder abduction must fail. However, because the majority

reaches this result in a rather circuitous manner, I write sepa-

rately on this issue to underscore that the United States has

neither acquiesced in, nor considers itself bound by, any supposed

norm against transborder arrest.

83a

accordingly, international law in this context must first

and foremost comport with American case law and con-

gressional intent, rather than be defined by the amor-

phous expressions of other countries or international

experts. In other words, no claim can be actionable

under the ATCA based on a norm to which the United

States itself does not subscribe.

I do not suggest that the majority’s inquiry into the

status of transborder arrest in the broader interna-

tional community—which Congress, by enacting the

ATCA, has directed us to perform in appropriate

cases—is one beyond the federal courts’ ability to un-

dertake. Indeed, some areas of substantial interna-

tional unanimity are easily recognized. See, e.g.,

Trajano v. Marcos (In re Estate of Ferdinand E.

Marcos Human Rights Litig.) (“Marcos I”), 978 F.2d

493, 500 (9th Cir. 1992). Nevertheless, I believe that in

many cases, as in this one, it will be far easier to

determine whether the United States subscribes to a

given norm than whether other countries do, and

accordingly the former inquiry should appropriately

precede the latter.

Il

I respectfully suggest that the majority has impru-

dently ignored the relevant underpinnings of the

ATCA. As demonstrated below, a proper historical

understanding of the ATCA compels the conclusion

that no claim can prevail where the United States,

through its political branches, does not acquiesce in an

international norm.

A

First enacted as part of the Judiciary Act of 1789, the

ATCA still reads today almost exactly as the First

84a

Congress drafted it; the version currently enshrined in

Title 28 provides: “The district courts shall have

original jurisdiction of any civil action by an alien for a

tort only, committed in violation of the law of nations or

a treaty of the United States.” 28 U.S.C. § 1350 (1994);

see Judiciary Act of Sept. 24, 1789, ch. 20, § 9(b), 1 Stat.

73, 77.

The ATCA was, from the beginning, a curious pro-

vision. As one eminent scholar of both federal jurisdic-

tion and American legal history notes, the ATCA was

one of only two provisions of the Judiciary Act that “ar-

guably glalve federal courts jurisdiction over judicial

matters outside the enumeration of Article III.” David

P. Currie, The Constitution in Congress: The Federal-

ist Period 1789-1801, at 51-52 (1997).* Perhaps because

of the singular nature of its jurisdictional grant, the

ATCA was infrequently used for almost two hundred

years, until fairly recently when courts have eagerly

exploited the opportunity to revivify it.

In the course of this resurgence of a statutory pro-

vision that lay largely dormant since our nation’s found-

ing, our court has determined that certain international

law principles may be incorporated into federal common

law, and thereby into the ATCA as well. See Hilao v.

Estate of Marcos (In re Estate of Ferdinand Marcos,

4 The other was the Act’s apparent provision for general

alienage diversity jurisdiction, rather than jurisdiction only over

controversies between aliens and U.S. states or citizens, as speci-

fied in Article III, Section 2. Currie, supra, at 51. The Supreme

Court subsequently construed the statute’s reference to suits

“where an alien is a party” to comprehend only suits “between citi-

zens and foreigners,” to conform to the Article III grant. Moss-

man v. Higginson, 4 U.S. (4 Dall.) 12, 14, 1 L.Ed. 720 (1800) (em-

phasis omitted).

85a

Human Rights Litig.) (“Marcos II”), 25 F.3d 1467, 1475

(9th Cir. 1994). The Marcos II court set out the stan-

dard for evaluating whether an ATCA plaintiff states a

claim: “Actionable violations of international law must

be of a norm that is specific, universal, and obligatory.”

Id.; accord, e.g., Papa v. United States, 281 F.3d 1004,

1013 (9th Cir. 2002); Martinez v. City of Los Angeles,

141 F.3d 1373, 1383-84 (9th Cir. 1998).

B

The requirement of “universality” constitutes an

insurmountable bar to recovery for transborder arrest.’

® Of the elements required for an actionable norm under the

ATCA, “specificity” is, appropriately, the clearest of the three.

International law from the time of the ATCA’s enactment has been

somewhat inchoate, and as the number of international agree-

ments, conventions, and organizations has grown, discerning the

substance of the law of nations has required rather more than

reading the works of Pufendorf, Burlmaqui, and Vattel with which

members of the First Congress were presumably familiar. More-

over, the international community whose customs and practices

define the law of nations has become larger and more diverse. It is

not surprising, therefore, that frequently the propositions capable

of attracting the broadest support are also the most diffuse (and

thus the least likely to offend). Yet much diplomatic gloss, though

possessing great virtue for its significance to the development of

the law of nations in the broadest sense, provides no suitable basis

for tort litigation.

A “specific” norm, therefore, is one sufficiently “‘definable,’”

Marcos II, 25 F.3d at 1475 (quoting with approval Forti v. Suarez-

Mason, 672 F. Supp. 1531, 1539-40 (N.D. Cal. 1987)), such that its

violation can be objectively ascertained. To be sure, the nations of

the world need not have commonly agreed upon an exhaustive

catalogue of every variation, but the norm itself must have become

“clear and unambiguous.” Tel-Oren v. Libyan Arab Republic, 726

F.2d 774, 819-20 (D.C. Cir. 1984) (Bork, J., concurring) (quoting

Filartiga v. Pena-Irala, 630 F 2d 876, 884 (2d Cir. 1980)) (internal

quotation marks omitted).

86a

I focus in particular on the corollary of this require-

ment: a norm of international law not recognized by the

United States cannot be deemed a universal one,

actionable in this nation’s courts.

We have previously noted the importance of deter-

mining whether a norm of international law is rec-

ognized by the United States. See Martinez, 141 F.3d

at 1383 (“To determine whether this tort satisfies the

requirement for a tort claim under the Alien Tort Act,

we must decide {{1] whether there is an applicable norm

of international law [proscribing such atort] .. .

recognized by the United States . . . and [2] whether

[that tort] was violated in [this] particular case.’”

(quoting Marcos I, 978 F.2d at 502 (alterations in

original) (emphasis added))). Marcos J did not state

this requirement explicitly, but the exposition of the

constitutional basis for the ATCA, see supra at 612,

makes clear that the Martinez court correctly recog-

nized that ATCA jurisdiction subsumes it.

Federal common law is a means of preserving a

uniform national construction of rights and obligations

within a given area of the law even in the absence of a

detailed statutory scheme. See, e.g., Tex. Indus., Inc. v.

Radcliff Materials, Inc., 451 U.S. 630, 640-41, 101 S. Ct.

2061, 68 L. Ed. 2d 500 (1981). This consideration carries

particular force in the foreign policy context in which

the ATCA lies; it was passed, let us remember, in 1789,

only months after the First Congress convened. The

Framers, and presumably those who went on to serve

the new government, were acutely conscious of the

need for the national government’s interpretation of the

law of nations to be controlling. See, e.g., The Federal-

ist No. 3, at 43 (John Jay), No. 80, at 476-77, 478

(Alexander Hamilton) (Clinton Rossiter ed., 1961). Yet

87a

one equally basic characteristic of federal common law

is that Congress may supplant it as the rule of decision,

because the power to legislate rests most properly with

the elected representatives who possess both the

greater competence and the greater authority, con-

ferred by the people, to wield it. And the same is no

less true with regard to the law of nations as federal

common law; indeed, foreign policymaking is essentially

confided not merely to the national government writ

large, but to its political branches in particular.’ E.g.,

Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333

U.S. 103, 111, 68 S. Ct. 431, 92 L.Ed. 568 (1948); Oetjen

v. Cent. Leather Co., 246 U.S. 297, 302, 38S. Ct. 309, 62

L.Ed. 726 (1918); see Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398, 423, 84 S. Ct. 923, 11 L. Ed. 2d

804 (1964).

The Framers and the First Congress viewed the

United States’s substantial adoption of the law of

nations as furthering their intention that the new

nation take its place among the civilized nations of the

world. E.g., Chisholm v. Georgia, 2 U.S. (2 Dall.) 419,

474, 1 L.Ed. 440 (1793) (opinion of Jay, C.J.). Yet they

clearly did not mean for the law of nations to act as an

irrevocably binding constraint on the law and policy-

making authority of the national government. In his

last contribution as Publius, John Jay famously recog-

nized the binding nature of treaties, and a number of

the Framers shared his view that treaties created a

* Of course, accepting this principle still leaves open the ques-

tion of how that responsibility should be allocated between the po-

litical branches. For present purposes, it

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