United States v. Alvarez-Machain & Sosa v. Alvarez-Machain
These related cases grow out of events that are nearly twenty years old, yet they pose questions that have become extraordinarily timely in the post September 11, 2001 war on terrorism environment. In 1985, a DEA agent in Mexico was captured and tortured to death by members of a drug cartel. Subsequently, U.S. agents with the help of Mexican nationals “snatched” Dr. Alvarez-Machain in Mexico and delivered him to the United States for trial as a participant in the torture and murder. Alvarez-Machain was acquitted, but before that happened, he had taken to the Supreme Court a claim that the United States violated a Mexico-US extradition treaty and international law in his capture. The Supreme Court rejected his claims. United States v. Alvarez-Machain , 504 U.S. 655 (1992).
Alvarez-Machain then brought civil tort actions in U.S. federal court against the United States and Jose Sosa, a Mexican national who participated in the snatch. The United States is being sued under the Federal Torts Claim Act and Sosa under the Alien Tort Statute (ATS). The claim against the United States is that the authority given to DEA agents to enforce U.S. laws did not apply extraterritorially, that the arrest was therefore a false or tortious arrest under California law (the parties stipulated that California law would apply), and that the claim did not come within the FTCA exclusion of claims “arising in a foreign country” because it was attributable to decisions made at DEA headquarters in the U.S.
The claim against Sosa proceeds on the theory that the ATS creates a cause of action in addition to granting jurisdiction to federal courts for violations of the law of nations, and that international law recognizes a rule prohibiting “arbitrary arrests,” which encompass arrests not authorized under either Mexican or American law.
The Ninth Circuit resolved each dispute in favor of Alvarez-Machain, 6-5. The dissenters made clear the importance of the claim against the United States for purposes of the war on terrorism, pursuant to which one might well anticipate similar “snatches” performed by U.S. operatives, perhaps most particularly in countries where the national government had reason not to cooperate with U.S. anti-terrorism efforts. Sosa's claim, on the other hand, provides the Supreme Court with a clear opportunity to resolve the question of whether the ATS confers jurisdiction only or also creates a cause of action, a question that has divided the circuits.
Questions Presented:
United States v. Alvarez-Machain:
1. Whether federal law enforcement officers, and agents of the Drug Enforcement Administration in particular, have authority to enforce a federal criminal statute that applies to acts perpetrated
against a United States official in a foreign country by arresting an indicted criminal suspect on probable cause in a foreign country.
2. Whether an individual arrested in a foreign country may bring an action under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., for false arrest, notwithstanding the FTCA's
exclusion of "[a]ny claim arising in a foreign country," 28 U.S.C. 2680(k), because the arrest was planned in the United States.
Sosa v. Alvarez-Machain :
1. Whether the Alien Tort Statute (ATS), 28 U.S.C. 1250, creates a private cause of action for aliens for torts committed anywhere in violation of the law of nations or treaties of the United
States or, instead, is a jurisdiction-granting provision that does not establish private rights of action;
2. Whether, if the ATS does provide a cause of action, it does so only for violations of jus cogens - e.g. non-derogable - norms; and
3. Whether a detention that lasts less than 24 hours, results in no physical harm to the detainee, and is undertaken by a private individual under instructions from senior United States law
enforcement officials constitutes a violation of the law of nations and is therefore actionable under the ATS.
