# Appendix — United States v. Alvarez-Machain

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 930

## Text

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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,
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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 rec

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0713%3A3. Public record. Not legal advice.