Justices to Hear Foreign Abduction Case

The Supreme Court agreed Monday to decide whether the U.S. government can be sued by foreigners who are illegally abducted abroad and brought to the United States, a case that represents another potential clash between international human rights law and the American pursuit of terrorists.

The outcome could also affect whether U.S. corporate officials can be sued in the United States for alleged human rights violations abroad.

The case began during the 1980s war on drugs with the slaying of Enrique Camarena Salazar, a Drug Enforcement Administration agent. However, the case has reached the high court amid the war on terrorism.

Bush administration lawyers, citing the terrorism issue, urged the justices to hear the case of Mexican doctor Humberto Alvarez Machain, who was kidnapped in connection with Camarena’s killing, and to shield U.S. agents from being sued here whenever they enforce federal law, even outside the U.S.

Sometimes, government agents need to operate “abroad to combat terrorism, international crime and the flow of illegal drugs into the United States,” Solicitor Gen. Theodore B. Olson told the court. And when they do so, they should not be subject to lawsuits later by those who were captured and brought back for trial, he said.

But the Los Angeles lawyers who are representing the Mexican doctor say the government is wrongly using the terrorism issue to deflect attention from an illegal plot by low-level drug agents to kidnap a Mexican citizen. They point out that neither Mexican law enforcement nor high-level U.S. officials knew of a plot to kidnap Alvarez.

The government’s appeal, to be heard early next year, is rare for two reasons.

First, it will mark the second time the justices have intervened in the same case. A decade ago, they upheld the government’s move to capture and prosecute Alvarez.

The appeal also marks the first time the high court has heard a case involving the Alien Tort Claims Act of 1789, part of the first measure passed by the U.S. Congress. It gave federal courts the power to hear lawsuits brought by aliens for legal wrongs committed in violation of “the law of nations.”

The statute lay dormant for nearly 200 years. But beginning in 1980, federal judges in New York and California have said that foreign victims of human rights abuses, including torture, may bring lawsuits against the perpetrators in U.S. courts. Claims have been brought against Unocal, Exxon-Mobil, Coca-Cola and other U.S. corporations for alleged violations.

The U.S. Chamber of Commerce and other business groups urged the court to take up the Alvarez case in order to limit the scope of the Alien Tort Claims Act.

Paul Hoffman, a Los Angeles lawyer for the Mexican doctor, said the outcome could be far-reaching.

“The government is taking the position that the Alien Tort Claims Act is a dead letter. And that would affect all these cases involving human rights claims, such as Shell, Unocal and all the others. It is extremely important for that reason,” Hoffman said.

Beyond that, the case also will decide whether U.S. agents can be held liable if they exceed their legal authority by acting abroad.

The case began in 1985 when Camarena was abducted by members of a Mexican drug gang, tortured and killed in Guadalajara. Alvarez was seen at the house where Camarena was held, and according to some reports, he helped keep the U.S. agent alive so he could be interrogated further.

Five years later, a grand jury in Los Angeles indicted Alvarez for his role in the killing. After efforts to extradite Alvarez failed, an agent in the Los Angeles office, Hector Berellez, came up with the idea of paying Mexican bounty hunters to abduct the gynecologist and return him to the United States.

The DEA agents reportedly paid $50,000 to the Mexicans, including Jose Sosa, to capture Alvarez and fly him in a private plane to El Paso. There, he was handed to U.S. authorities, who brought him to Los Angeles to stand trial.

Before he could be tried, he challenged his arrest and won a ruling from the U.S. 9th Circuit Court of Appeals. In 1978, the United States and Mexico had signed an extradition treaty that was to be “sole and exclusive means” for transferring wanted persons from one nation to the other. The kidnapping violated the treaty and was therefore illegal, the 9th Circuit said.

But the Supreme Court reversed that decision and ruled U.S. agents had the unilateral authority to seize foreign nationals on foreign territory. The extradition treaty was a matter for two governments only, the 6-3 majority said. It did not give federal courts the authority to release a person held in custody.

“This is a matter for the executive branch,” said Chief Justice William H. Rehnquist in summarizing the 1992 ruling in U.S. vs. Alvarez Machain.

The Canadian and Mexican governments protested the ruling, but lawyers for the first Bush administration said it affirmed their view that U.S. agents were free to seize wanted criminals and terrorists anywhere.

The case then took an unexpected turn. Prosecutors presented their case against Alvarez in a federal court in Los Angeles. But after hearing the evidence, a judge dismissed the indictment and acquitted the doctor, saying the case against him was based on “suspicion and hunches but no proof.” Alvarez returned to Mexico and sued Sosa and various U.S. agents for illegally abducting him. He lost before a federal judge in Los Angeles, but won before the full 9th Circuit in June.

The 6-5 majority stressed that its ruling was narrow. Congress had not given DEA the authority to operate abroad, so its capture of Alvarez was an illegal arrest, the appeals court said. It might be different had the U.S. attorney general or the president authorized the action, the judges said.

“We need not delve into the legal quagmire of apprehending terrorists or even resolve many of the complex issues ... associated with trans-border kidnapping,” said Judge M. Margaret McKeown for the 9th Circuit. But the Mexican doctor should be permitted to sue the U.S. agents who acted outside their legal authority, she said.The justices voted to hear the government’s appeal in U.S. vs. Alvarez Machain as well as a second appeal filed on a behalf of the Mexican abductor in the case of Sosa vs. Alvarez Machain. The court will issue a ruling by the term’s end in late June.

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The U.S. Supreme Court handed down brief orders in more than 240 cases Monday on issues as wide-ranging as the death penalty, sexual harassment, pensions and gun rights. The justices voted to hear six of the cases early next year. Among Monday’s highlights:

Death penalty

Last year, the court ruled in an Arizona case that juries, not judges, must decide whether a convicted murder is sentenced to die.

But it was not clear whether that ruling applied retroactively to at least 120 death row inmates in Arizona and eight other states that had relied on judges to hand down sentences. (California is not among them.)

This year, the U.S. 9th Circuit Court of Appeals said the Arizona inmates deserve new sentencing hearings. However, the high court agreed to hear the state’s claim that changes in procedural rules should not be applied to past cases. (Schriro vs. Summerlin)

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Sexual harassment

The court agreed to clarify whether victims of sexual harassment on the job must complain to their supervisors in order to win a lawsuit.

Nancy Drew Suders, a dispatcher for the Pennsylvania State Police, said she was subjected to crude sex jokes by her male co-workers. After five months, she quit and sued the department.

A federal appeals court cleared her claim to go to trial, but the state police appealed, arguing that victims have a duty to complain to their supervisors before they sue. (Pennsylvania State Police vs. Suders)

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Early retirement

Federal law bars pension plans from taking away benefits that have been earned by workers. But many pension plans also forbid “double dipping” by workers who retire early and then take another job covered by the same pension plan.

The issue: If a pension plan cuts off benefits to an early retiree who has gone back to work in the same company or in a job covered by the same plan, is that illegal or a reasonable means of conserving the assets of the retirement fund?

Lower courts are split. The justices agreed to resolve the dispute. (Central Laborers’ Pension Fund vs. Heinz)

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Assault weapons

The court refused to hear a 2nd Amendment challenge to California’s ban on the sale of rapid-fire assault weapons.

The high court has not ruled squarely on whether the 2nd Amendment gives individuals a right to “bear arms,” or merely authorizes state militias to carry weapons.

Gun enthusiasts, including the National Rifle Assn., challenged California’s law but lost in the 9th Circuit Court. Without comment, the court dismissed the appeal in Silveira vs. Lockyer.

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Pledge of Allegiance

The court said Dr. Michael Newdow, a Sacramento-area atheist, may argue his own case in the high court early next year.

Newdow has a law degree from the University of Michigan but has not practiced law. He represented himself in the 9th Circuit Court and won a ruling declaring unconstitutional the use of the words “under God” in the pledge as recited daily by schoolchildren.

Lawyers for Americans United for Separation of Church and State had asked for time to argue the case. But in Monday’s order, the justices turned down the group’s request and granted Newdow’s request to argue for himself. (Elk Grove Unified School District vs. Newdow)

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Source: David G. Savage, Times Staff Writer

Los Angeles Times