No. 99-56880

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HUMBERTO ALVAREZ-MACHAIN,

Plaintiff-Appell­­ee/Cross-Appellant,

v\.

JOSE FRANCISCO SOSA,

Defendant-Appellant/Cross-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

**BRIEF FOR THE UNITED STATES AS [AMICUS]{.underline}
[CURIAE]{.underline}**

**IN SUPPORT OF REVERSAL OF THE JUDGMENT AGAINST DEFENDANT-APPELLANT
JOSE FRANCISCO SOSA**

DAVID W. OGDEN

[Acting Assistant Attorney General]{.underline}

ALEJANDRO N. MAYORKAS

[United States Attorney]{.underline}

JAMISON S. BOREK BARBARA L. HERWIG

[Deputy Legal Adviser]{.underline} (202) 514-5425

ANDRE M. SURENA JOHN P. SCHNITKER

[Assistant Legal Adviser]{.underline} (202) 514-4116

[Office of the Legal Adviser]{.underline} [Attorneys, Appellate
Staff]{.underline}

[Department of State]{.underline} [Civil Division, Room
9142]{.underline}

[2201 C Street, N.W.]{.underline} [Department of Justice]{.underline}

[Washington, D.C. 20520]{.underline} [601 D Street, N.W.]{.underline}

[Washington, D.C. 20530-0001]{.underline}

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 99-56880

HUMBERTO ALVAREZ-MACHAIN,

Plaintiff-Appell­­ee/Cross-Appellant,

v\.

JOSE FRANCISCO SOSA,

Defendant-Appellant/Cross-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

**BRIEF FOR THE UNITED STATES AS [AMICUS]{.underline}
[CURIAE]{.underline}**

**IN SUPPORT OF REVERSAL OF THE JUDGMENT AGAINST DEFENDANT-APPELLANT
JOSE FRANCISCO SOSA**

**INTEREST OF THE [AMICUS]{.underline} [CURIAE]{.underline}**

The United States has an interest in whether plaintiff Humberto
Alvarez-Machain (plaintiff) may seek redress under the Alien Tort
statute, 28 U.S.C. § 1350, for the transborder arrest carried out by
defendant Jose Francisco Sosa (Sosa) and others on behalf of the U.S.
Drug Enforcement Administration (DEA). The United States has
participated as [amicus]{.underline} [curiae]{.underline} in prior cases
involving the Alien Tort statute. [Kadic]{.underline} v.
[Karadzic]{.underline}, 70 F.3d 232 (2d Cir. 1995), [cert.
denied]{.underline}, 518 U.S. 1005 (1996); [Trajano]{.underline} v.
[Marcos]{.underline}, 878 F.2d 1438 (9th Cir. 1989) (Table); Fed. R.
App. P. 29(a).

**STATEMENT OF THE ISSUES**

1\. Did the district court err in concluding that State-sponsored
transborder arrest constitutes the type of \"specific, universal, and
obligatory\" violation of the \"law of nations\" for which an individual
remedy is available under the Alien Tort statute.

2\. Did the district court err in finding Sosa liable for prolonged
arbitrary detention of plaintiff under the Alien Tort statute.

**STATEMENT OF THE CASE**

1\. Plaintiff, a Mexican national, is a doctor in Guadalajara, Mexico.
In February, 1985, DEA Special Agent Enrique Camarena-Salazar (Camarena)
was abducted to a location in Guadalajara, where he was tortured and
murdered. Plaintiff was present while Camarena was held at that
location. Based on his involvement, plaintiff was indicted in 1990 by a
federal grand jury in Los Angeles and a bench warrant issued for his
arrest. DEA Headquarters subsequently approved the use of Mexican
nationals to apprehend plaintiff in Mexico and transport him to the
United States. ER 112-13.[^1] In March, 1990, Sosa, a former Mexican
policeman, was asked to participate in the operation by another Mexican
national, Barragan. Sosa was told that the DEA had a warrant for
plaintiff\'s arrest, would pay the operation\'s expenses and, if
successful, would recommend Sosa for a Mexican government position.
Barragan also emphasized that plaintiff not be harmed during the
operation. [Id.]{.underline} at 114-15.

On April 2, 1990, plaintiff was apprehended at his office and held
overnight at a motel, where he used a bed and was not denied food or
water. The next day, plaintiff was flown to El Paso, Texas, where he was
arrested by federal agents. The group delivering plaintiff to El Paso,
including Sosa, immediately returned to Mexico. The period from
plaintiff\'s initial apprehension in Mexico to his transfer to federal
custody in El Paso amounted to slightly less than twenty-four hours.
[Id.]{.underline} at 116-20.

In the subsequent criminal proceedings, plaintiff contended that the
federal courts lacked jurisdiction to try him because of the manner by
which he was apprehended. The Supreme Court rejected that claim, holding
that any remedy for plaintiff\'s apprehension was \"a matter for the
Executive Branch\" to decide, [Alvarez-Machain]{.underline} v. [United
States]{.underline}, 504 U.S. 655, 669-70 (1992), and remanded the case
for trial. After trial, however, the district judge acquitted plaintiff,
at which point he returned to Mexico.

2\. Plaintiff then filed this civil damages action against,
[inter]{.underline} [alia]{.underline}, Sosa. Ruling on summary
judgment, the district court concluded that plaintiff\'s transborder
arrest violated a \"specific, universal and obligatory\" norm of
international law and granted judgment against Sosa on this count under
the Alien Tort statute. ER 90-97. While concluding that plaintiff was
not mistreated during his brief transfer to federal custody, the
district court also held that Sosa violated the international
prohibition against \"prolonged arbitrary detention\" and granted
plaintiff judgment on this count under the statute as well.
[Id.]{.underline} at 100-02, 118, 126-28. The district court refused to
consider the brief nature of the detention, ruling that such matters
were only relevant to damages. ER 109-10. After trial, the district
court awarded plaintiff \$ 25,000 against Sosa on the two claims.
[Id.]{.underline} at 142-50. Sosa appealed.

**SUMMARY OF ARGUMENT**

1\. Plaintiff does not have standing in this case to seek a remedy under
the Alien Tort statute because he is not complaining of the violation of
an international legal norm of which he, as an individual, is the
beneficiary. Seeking to show that he is entitled to relief under the
Alien Tort statute, plaintiff relies primarily on the international norm
that every nation has exclusive jurisdiction over its own territory and
claims that his apprehension in Mexico by individuals acting on DEA\'s
behalf violates that principle of State territorial sovereignty. But any
violation of that principle that may have occurred in this case is a
matter of which only Mexico, [not]{.underline} plaintiff, may properly
complain under international law. The principle of State territorial
sovereignty is a principle governing the [relations]{.underline}
[between]{.underline} [sovereign]{.underline} [States]{.underline}; it
does [not]{.underline} govern the relations between States and
individuals, and cannot provide an operative legal rule, the violation
of which entitles an individual to a remedy. Expansion of the Alien Tort
statute to permit individuals to complain of violations of international
norms governing relations between sovereign States may also have
dangerous international consequences for the United States. In pursuit
of its legitimate foreign policy objectives, the United States
occasionally may take actions that some would say violate its
international obligations; this could include actions alleged to violate
the territorial integrity of another State. The Alien Tort statute is
not intended as a vehicle for U.S. courts to judge the lawfulness of
U.S. government actions abroad in defense of national security. This
Court should reject the district court\'s expansion of this statute.

2\. The authorities cited by plaintiff to support his claim do not
entitle an individual to a remedy. These same authorities, in fact, were
unpersuasive to the Supreme Court, which noted only that they
\"[may]{.underline} show\" that plaintiff\'s apprehension
\"[may]{.underline} be\" in violation of international law, but held
that the determination of the appropriate remedy for that violation is
\"a matter for the Executive Branch\" to determine in the realm of
foreign relations. [Alvarez-Machain]{.underline}, 504 U.S. at 666-70 &
n.15-16 (emphasis added). Certainly, the Supreme Court\'s treatment of
these authorities does not demonstrate the sort of specific, universal
and obligatory norm of international law for which an individual remedy
should be available under section 1350.

Under international law, there are a variety of remedies for transborder
arrest between sovereign States. These negotiated remedies include: (1)
return of the arrested party by the apprehending State to the State from
which he or she was taken; (2) State-to-State negotiations and/or
agreement to a treaty to resolve the issue; and (3) reparations,
including apologies, by the apprehending State to the State whose
territory was violated. Plaintiff does not have standing to invoke these
State-to-State remedies. For similar reasons, plaintiff may not rely on
treaty provisions concerning territorial integrity in the U.N. Charter,
the OAS Charter and the 1988 U.N. Convention Against Illicit Traffic in
Narcotic Drugs, because those documents are not self-executing and may
not be invoked by private parties. In short, the existing State-to-State
remedial régime under international law for State-sponsored transborder
arrests --- and the primacy of the Executive Branch in determining our
nation\'s response to such incidents --- cuts sharply against extension
of section 1350 to the present circumstances.

3\. Alternatively, plaintiff asserts that State-sponsored transborder
arrest violates international human rights law. The United States is not
a party to the American Convention on Human Rights, and the
International Covenant on Civil and Political Rights on which plaintiff
relies is not self-executing. The Universal Declaration of Human Rights
and the American Declaration of the Rights and Duties of Man are not
agreements establishing legally binding rights and obligations. None of
these Conventions and Declarations explicitly prohibit State-sponsored
transborder arrest nor do they collectively establish a \"specific,
universal and obligatory\" norm against such arrests. Thus, the
documents cited by plaintiff neither individually nor collectively
establish a basis for a claim under section 1350 for a State-sponsored
transborder arrest.

4\. Lastly, the district court held Sosa liable for \"prolonged
arbitrary detention\" of plaintiff. This is wrong for two reasons.
First, plaintiff\'s detention was supported by a properly issued federal
warrant; consequently, there is no basis for concluding it was
\"arbitrary,\" either as a matter of fact or legal process. Second, even
if arbitrary, plaintiff\'s detention was not \"prolonged,\" since he was
held for less than twenty-four hours prior to delivery to federal
custody. The district court\'s contrary rulings should be rejected by
this Court.

**ARGUMENT**

**I. PLAINTIFF DOES NOT HAVE STANDING TO SEEK A REMEDY**

[**UNDER THE ALIEN TORT STATUTE FOR TRANSBORDER ARREST**.]{.underline}

1\. The Alien Tort statute, 28 U.S.C. § 1350, provides as follows:

> The district courts shall have original jurisdiction of any civil
> action by an alien for a tort only, committed in violation of the law
> of nations or a treaty of the United States.

This statute requires, at a minimum, an alien and a tort in violation of
international law. [In re Estate of Ferdinand E. Marcos
Litigation]{.underline}, 978 F.2d 493, 499 (1992), [cert.
denied]{.underline}, 508 U.S. 972 (1993) (\"[Estate I]{.underline}\").
This Court has held, however, that not every claimed violation of the
\"law of nations\" can be relied upon for purposes of this statute. To
meet this element, a plaintiff must show that the international norm
\"is specific, universal, and obligatory.\" [In re Estate of Ferdinand
Marcos Human Rights Litigation]{.underline}, 25 F.3d 1467, 1475 (9th
Cir. 1994), [cert. denied]{.underline}, 513 U.S. 1126 (1995) (\"Estate
II\") [citing]{.underline}, [inter]{.underline} [alia]{.underline},
[Filartega]{.underline} v. [Pena-Irala]{.underline}, 630 F.2d 876, 881
(2d Cir. 1980). To determine whether a plaintiff has met his burden, the
Court has stated that it

> must decide whether there is an applicable norm of international law,
> whether it is recognized by the United States, what its status is, and
> whether it was violated in the particular case.

[Estate I]{.underline}, 978 F.2d at 502. While the Court will look for
guidance on these matters to \"court decisions, the works of jurists and
the usage of nations,\" [Martinez]{.underline} v. [City of Los
Angeles]{.underline}, 141 F.3d 1373, 1383-84 (9th Cir. 1998), the views
of the Executive Branch, which is primarily responsible under the
Constitution for U.S. relations with foreign States, are entitled to
deference on these matters as well. [Haig]{.underline} v.
[Agee]{.underline}, 453 U.S. 280, 292 (1981); U.S. Const., Art. II, §§
2, 3.

2\. Plaintiff does not have standing in this case to seek a remedy under
the Alien Tort statute because he is not complaining of the violation of
an international legal norm of which he, as an individual, is the
beneficiary. Seeking to show that he is entitled to relief under section
1350,^[2]{.underline}^[^2] plaintiff primarily relies on the
international norm that every nation has exclusive jurisdiction over its
own territory, [see]{.underline} [The Schooner Exchange]{.underline} v.
[McFaddon]{.underline}, 11 U.S. (7 Cranch) 116, 136 (1812), and claims
that his apprehension by individuals acting on DEA\'s behalf violates
this principle of State territorial sovereignty. ER
93.^[3]{.underline}^[^3]

The principle of territorial sovereignty governs [relations]{.underline}
[between]{.underline} [sovereign]{.underline} [States]{.underline}; it
does [not]{.underline} govern relations between States and individuals.
Any violation of Mexican territorial integrity that may have occurred in
connection with plaintiff\'s arrest is a matter of which only Mexico,
exercising its own rights under international law, may properly
complain. As a principle governing relations between sovereign States
--- and [not]{.underline} between States and individuals --- the
principle cannot provide an operative legal rule, the violation of which
entitles an [individual]{.underline} to a remedy.^[4]{.underline}^[^4]
The United States does not believe that any violation of Mexico\'s
sovereignty that occurred in connection with plaintiff\'s arrest is the
kind of violation of international law for which an individual can seek
relief under section 1350.^[5]{.underline}^[^5]

Rather, as shown below, the remedies available for such a violation are
to remedy the violation of the [State\'s]{.underline} rights,
[not]{.underline} the individual\'s rights. Otherwise, a State-to-State
international norm is transformed into a remedial vehicle for
individuals, a purpose for which it seems particularly ill suited. For
example, during NATO\'s recent bombing campaign in Kosovo, one can
imagine a hypothetical situation where a precision-guided NATO bomb
accidentally goes astray and falls on a house, injuring the owners. The
rule applied by the district court would recognize the standing of the
individual aliens to seek a remedy for this \"tort\" under the Alien
Tort statute by, for example, suing the Secretary General of NATO in
district court for violation of principle of territorial integrity, even
though the \"tort\" (the personal injury) is not \"in violation of the
law of nations\" (territorial sovereignty) in any relevant sense and the
appropriate subject of any remedy for the violation of territorial
integrity is the State, [not]{.underline} the individual.

The expansion of the Alien Tort statute by the district court also may
have dangerous international consequences for the United States. In
pursuit of its legitimate foreign policy objectives, the United States
occasionally may take actions that some would say violate its
international obligations; this could include actions alleged to violate
the territorial sovereignty of another State^[6]{.underline}^[^6] In
plaintiff\'s view, any alien is entitled to complain of such conduct in
federal court under section 1350, if a \"tort\" occurs thereby. Such a
rule might render actionable efforts by the United States (and those
acting on its behalf) to pursue its legitimate foreign policy aims (such
as U.S. attacks on Usama Bin Laden\'s facilities in response to the
African Embassy bombings or U.S. enforcement actions against fugitive
international terrorists or drug traffickers), if such conduct violates
another State\'s territorial integrity. The Alien Tort statute is not
intended as a vehicle for U.S. courts to judge the lawfulness of U.S.
government actions abroad in defense of national security and any
remedies for such actions are appropriately matters for resolution by
the political branches, not the courts.^[7]{.underline}^[^7] This Court
should reject the district court\'s extension of the Alien Tort statute
to encompass legal principles that properly govern relations between
sovereign States, rather than the relations between States and
individuals.

3.a. The district court in this case stated that plaintiff cited a
\"wealth of international authority\" to support the claim that his
transborder arrest violates international law for purposes of section
1350. ER 93. Plaintiff, in fact, relied on these same authorities before
the Supreme Court to claim that his apprehension \"is a violation of
international law.\" [See]{.underline} Brief For Respondent, 1992 WL
526163, at \*16-\*22, \*43-44, [Alvarez-Machain]{.underline},
[supra]{.underline}. In concluding that plaintiff could be tried by U.S.
courts consistently with the terms of the U.S.-Mexican extradition
treaty, notwithstanding the manner of his apprehension, the Supreme
Court was unpersuaded, noting only that these authorities
\"[may]{.underline} show the practice of nations\" and that plaintiff\'s
apprehension \"[may]{.underline} be in violation of general
international law principles\" but that determination of the appropriate
remedy for that violation \"is a matter for the Executive Branch.\"
[Alvarez-Machain]{.underline}, 504 U.S. at 666-69 & nn.15-16 (emphasis
added). Certainly, the Supreme Court\'s treatment of these authorities
does not demonstrate the sort of \"specific, universal, and obligatory\"
norm of international law for which an individual remedy should be
available under section 1350. [Estate II]{.underline}, 25 F.3d at 1475.
Further, the Court properly deferred to the role of the Executive Branch
in resolving these foreign relations matters, both in plaintiff\'s case
and more generally.^[7]{.underline}^[^8]

b\. There are a variety of negotiated State-to-State remedies for a
State-sponsored transborder arrest under international law. That
State-to-State remedial régime is by agreement of the States involved
and does not entitle a plaintiff to an individual remedy. One possible
remedy for a transborder arrest is the return of the arrested party by
the apprehending State to the State from which he or she was taken.
[See]{.underline} Restatement, [supra]{.underline}, § 432, cmt. c, at
329-30; Preuss, [Settlement of Jacob Kidnapping Case]{.underline}, 30
Am. J. Int\'l L. 123 (1936) (Former German citizen taken from
Switzerland by Germany; after State-to-State arbitration, citizen
returned to Switzerland); [In re Vincenti]{.underline} (1920) [reprinted
in]{.underline} 1 H. Hackworth, Digest of International Law 624 (1940)
(U.S. citizen arrested by federal agents in British territorial waters;
at U.S. direction, criminal case dismissed and defendant released);
Abraham Abromovsky, [Extraterritorial Abductions: American\'s \'Catch
And Snatch\' Policy Run Amok]{.underline}, 31 Va. J. Int\'l L. 151,
208-10 (1991) (remedy \"must be the repatriation of the defendant to his
home country\"); F.A. Mann, \"Reflections on the Prosecution of Persons
Abducted in Breach of International Law,\" International Law in a Time
of Perplexity 411 (1989) (same).^[8]{.underline}^[^9] This is a
State-to-State remedy that the Executive Branch declined to apply in
plaintiff\'s case. [Alvarez-Machain]{.underline}, 504 U.S. at 666-70. It
is not a remedy that individuals may claim, however. [Id.]{.underline}
Indeed, in the one case cited by plaintiff which holds, consistently
with [Alvarez-Machain]{.underline}, that the manner of rendition does
not affect the prosecution, the French court rejected the individual\'s
claim to a remedy:

> Examining the complaint based on the violation in this case of the
> rules of international law and of the principle of the sovereignty of
> States on their territory, the Court observes that [the State which is
> entitled to complain of damage suffered by one of its nationals or
> protected persons in violation of its territorial sovereignty
> exercises its own right when it claims reparations]{.underline}.
> Individuals have no capacity to plead in judicial proceedings a
> contravention of international law. [The putting in issue of
> international responsibilities concerns only relations between State
> and State, without individuals being entitled to
> intervene]{.underline}.

[Re Argoud]{.underline}, 45 I.L.R. 90, 96 (Cour de Cassation 1964)
(emphasis added).^[9]{.underline}^[^10]

A second possible remedy is State-to-State negotiation and/or agreement
to a treaty to resolve the dispute. In fact, the governments of the
United States and Mexico pursued such a remedy here. Following
plaintiff\'s apprehension, the United States gave written assurances to
the Mexican government that it would \"neither conduct, encourage or
condone\" similar transborder arrests from Mexico while the parties
negotiated to resolve the issue. Statement of Alan J. Kreczko, Deputy
Legal Adviser, Department of State, before the Subcommittee on Civil and
Constitutional Rights of the House Judiciary Committee, 3 State
Department Dispatch 616 (August 3, 1992).^[10]{.underline}^[^11]
Subsequently, the United States and Mexico signed a Treaty on the
subject. Treaty to Prohibit Transborder Abductions [reprinted
in]{.underline} 5 M. Abell & B. Ristau, [International Judicial
Assistance: Criminal]{.underline}, A-676.3 to 676.6 (1995). That treaty
prohibits transborder arrests by either State (Art. 2), provides
procedures for resolving such incidents between the two States (Art. 4),
and sets out various possible State-to-State remedies, including
repatriation of the apprehended party in certain instances (Art. 5) and
sanctions against the individuals responsible for the seizure (including
prosecution, extradition^[11]{.underline}^[^12] and civil or
administrative sanctions) (Art. 6). [Id.]{.underline} The Treaty,
however, also makes clear that its provisions \"may be invoked only by
the Parties, are not intended to benefit third parties, and shall not
give rise to a right on the part of any private person.\"
[Id.]{.underline} at A-676.5 (Art. 7). Although the Treaty is not in
force,^[12]{.underline}^[^13] the negotiations of the United States and
Mexico leading to this Treaty --- and the Treaty\'s disclaimer of
private rights --- sharply undercuts plaintiff\'s assertion that he is
entitled to a remedy under international law.

A third possible remedy for transborder arrest is for the State whose
territory has been violated to \"receive reparation from the offending
\[S\]tate.\" Restatement, [supra]{.underline}, § 432, cmt. c; [Re
Argoud]{.underline}, 45 I.L.R. at 96. Reparations were used in the
Eichmann case, on which plaintiff relies. After Eichmann\'s apprehension
in Argentina by Israel, the United Nations declared that his seizure
\"affect\[ed\] the sovereignty of a Member State \[Argentina\],\" that,
\"if repeated,\" it might \"endanger international peace and security\"
and requested \"the Government of Israel to make appropriate reparations
\[to Argentina\] in accordance with the Charter of the United Nations
and the rules of international law.\" Security Council Resolution
concerning Adolf Eichmann, U.N. Doc. S/4349 (23 June
1960).^[13]{.underline}^[^14] As explained by U.N. Ambassador Henry
Cabot Lodge, \"adequate reparations\" simply consisted of the
\"expression of views by the Security Council in the pending resolution
\[that was eventually adopted\] together with the statement of the
Foreign Minister of Israel making apology \[to Argentina\] on behalf of
the Government of Israel.\" 5 M. Whiteman, Digest of International Law
212-13 (1965). Again, these are State-to-State remedies,
[not]{.underline} individual remedies.^[14]{.underline}^[^15]

c\. Plaintiff also bases his claims on treaty provisions concerning
territorial integrity in several international agreements, including
both the Charters of the United Nations^[15]{.underline}^[^16] and the
Organization of American States.^[16]{.underline}^[^17] Courts, however,
have refused to allow individuals to complain of violations of such
multilateral compacts between States. Such agreements are not
\"self-executing\" and require implementing legislation before they may
be relied upon by individuals. [Committee of Citizens]{.underline} v.
[Reagan]{.underline}, 859 F.2d 929, 937-38 (D.C. Cir. 1988). That is the
case with both the U.N. Charter, [id.]{.underline}, and the OAS Charter,
[United States]{.underline} v. [Noriega]{.underline}, 746 F. Supp. 1506,
1533 (S.D. Fla. 1990), [aff\'d]{.underline}, 117 F.3d 1206 (11th Cir.
1997), [cert. denied]{.underline}, 523 U.S. 1060 (1998).

Plaintiff similarly relies on two provisions (Arts.
2(2)^[17]{.underline}^[^18] and 2(3)^[18]{.underline}^[^19]) of the 1988
United Nations Convention Against Illicit Traffic in Narcotic Drugs (28
I.L.M. 493). This Convention, similar to the U.N. and OAS Charters, is a
multilateral treaty that is not self-executing. Indeed, it contains
remedial provisions (Art. 32(1) and (2)) that require parties to resolve
disputes under the Convention by \"consult\[ing\] together with a view
to the settlement of the dispute,\" and, if consultations fail, to refer
the dispute \"to the International Court of Justice for decision.\" 28
I.L.M. at 525. These State-to-State remedies wholly undercut
plaintiff\'s claim that the Convention\'s provisions may be invoked by a
private party.

In sum, whatever violation of the principle of State territorial
sovereignty may have occurred in connection with plaintiff\'s arrest by
individuals acting on DEA\'s behalf, such a violation is not one of
which plaintiff has standing to complain under section 1350. A violation
of State sovereignty is for the State to pursue, [not]{.underline} the
individual, and the remedies available for such a violation are to
remedy the violation of the [State\'s]{.underline} rights,
[not]{.underline} the individual\'s. The principle of State sovereignty
relied on by plaintiff is not a \"specific, universal, and obligatory\"
international norm in relation to individuals such that plaintiff has
standing to seek a remedy under section 1350. [Estate II]{.underline},
25 F.3d at 1475.

4\. Perhaps recognizing the weakness of his reliance on Mexico\'s
rights, plaintiff alternatively asserts that State-sponsored transborder
arrest is itself a violation of international human rights law, for
which section 1350 provides a remedy. [See]{.underline} ER 96. In
support of his argument, plaintiff relies on provisions in the following
documents: (1) the American Convention on Human Rights, 9 I.L.M. 673
(July 4, 1977), Art. 7 & 22^[19]{.underline}^[^20]; (2) the
International Covenant on Civil and Political Rights, Exec. Doc. E, 95-2
(1978), 999 U.N.T.S. 171, (December 19, 1966), Art. 9 &
10^[20]{.underline}^[^21]; (3) the Universal Declaration of Human
Rights, G.A. Res. 218A, U.N. GAOR, 3d Sess. pt. 1, 67th Plea. Mtg., U.N.
Doc. A/810 (1948), Arts. 3, 9, 10^[21]{.underline}^[^22]; and (4) the
American Declaration of the Rights and Duties of Man, signed May 2,
1948, O.A.S. Off. Rec. OEA/Ser.L/V/II.23 doc. 21, rev. 6 (English 1979),
Art. 1 & 8.^[22]{.underline}^[^23] None of these documents, either
individually or collectively, evince a \"specific, universal and
obligatory\" rule of customary international law proscribing
State-sponsored transborder arrest to support a section 1350 claim.
[Estate II]{.underline}, 25 F.3d at 1475.

First, only the International Covenant on Civil and Political Rights is
an operative treaty for the U.S. and it is not self-executing. While the
United States has signed the American Convention on Human Rights, it is
not a party to that Convention since it not yet been ratified. Further,
while the United States has ratified the International Covenant on Civil
and Political Rights (the Senate gave its advice and consent on April 2,
1992, and that Covenant entered into force for the United
States^[23]{.underline}^[^24] on September 8, 1992, over two years after
the events underlying this suit), the Senate and the Executive Branch
agreed at the time of ratification that the Covenant articles on which
plaintiff relies (Arts. 9 and 10) are [not]{.underline} self-executing
and may [not]{.underline} be relied upon by individuals. S. Exec. Rep.
No. 23, 102d Cong., 2d Sess. 9, 19, 23 (1992); 138 Cong. Rec. 8068,
8070-71 (April 2, 1992). Where the political branches have explicitly
agreed to preclude an individual remedy under these provisions, it would
be particularly anomalous for this Court to recognize one here.
[Cf.]{.underline} [Humanitarian Law Project]{.underline} v.
[Reno]{.underline}, 2000 WL 235310, at \*4 (9th Cir. March 3, 2000)
(political branches should have \"wide latitude\" in judgments \"bound
up with foreign policy considerations\").

The two Declarations are not treaties, nor are they binding
international agreements. Indeed, at the time of passage of the
Universal Declaration of Human Rights, Eleanor Roosevelt, Chairman of
the U.N. Human Rights Commission, who was instrumental to its passage,
stated that the Declaration \"is a declaration of basic principles\" but
\"is not and does not purport to be a statement of law or legal
obligation.\" 5 M. Whiteman, [supra]{.underline}, at 243.

Second, even taken together, these documents do not evince a \"specific,
universal and obligatory\" rule of customary international law
prohibiting transborder arrests. None of these documents explicitly
prohibits State-sponsored transborder arrests. As the Restatement
acknowledges, \"\[n\]one of the international human rights conventions
to date \* \* \* provide that forcible abduction or irregular
extradition is a violation of international human rights law.\"
Restatement, [supra]{.underline}, § 432, Reporters Note 1, at 330.

Thus, the documents cited by plaintiffs neither individually nor
collectively establish a basis for a claim under section 1350 for
State-sponsored transborder arrest.

5\. As our submission indicates, the United States does not believe that
international law currently recognizes the standing of an individual ---
as contrasted with the standing of a sovereign State --- to complain of
a State-sponsored transborder arrest. One can also draw an analogy here
to the considerations underlying the Supreme Court\'s decision in
[Anderson]{.underline} v. [Creighton]{.underline}, 483 U.S. 635 (1987).

[Anderson]{.underline}, of course, concerned the contours of an
individual\'s remedy under [Bivens]{.underline} v. [Six Unknown Named
Agents]{.underline}, 403 U.S. 388 (1971), for a violation of the
Constitution. One might roughly analogize an alien\'s remedy under
section 1350 to an individual\'s [Bivens]{.underline} remedy under the
Constitution. [Bivens]{.underline}, however, is not a strict liability
régime. Rather, a government official is liable [only]{.underline} to
the extent that he violated \"clearly established \* \* \*
constitutional rights of which a reasonable person would have known.\"
[Harlow]{.underline} v. [Fitzgerald]{.underline}, 457 U.S. 800, 818
(1982). This standard attempts to balance conflicting concerns,
[e.g.]{.underline}, the need to provide a remedy for clearly illegal
conduct with the fear that the unqualified imposition of liability would
dampen the ardor of public officials seeking to properly carry out
important duties. [See]{.underline} [Harlow]{.underline}, 457 U.S. at
814. An individual official, consequently, is not liable under
[Bivens]{.underline} for violation of only generalized constitutional
mandates. Rather, the specific \"right the official is alleged to have
violated must be \'clearly established\' in a more particularized, and
hence, more relevant sense: The contours of the right must be
sufficiently clear that a reasonable official would understand that what
he is doing violates that right.\" [Anderson]{.underline}, 483 U.S. at
640. By analogy here, the broad principles of [State]{.underline}
territorial sovereignty have never before been defined in the \"more
particularized\" sense as a \"specific, universal, and obligatory\"
international norm [benefitting]{.underline} [individuals]{.underline}
such that the persons acting on DEA\'s behalf, including Sosa, would
understand that what they were doing was tortious as to plaintiff.
Indeed, the district court acknowledged that \"\[b\]ecause of the
unsettled state of \[international\] law, Defendant Sosa did not have a
clear warning of the impropriety of his conduct.\" ER
147.^[24]{.underline}^[^25]

Another aspect of [Bivens]{.underline} is also relevant here. Courts do
not allow a private remedy under [Bivens]{.underline} where \"special
factors counsel\[\] hesitation.\" [Schweiker]{.underline} v.
[Chilicky]{.underline}, 487 U.S. 412, 420-23 (1988). As explained above,
the remedies for State-sponsored transborder arrest --- and any related
violation of [State]{.underline} territorial sovereignty --- are
negotiated State-to-State remedies. In [Alvarez-Machain]{.underline},
the Supreme Court indicated that such remedy questions, which involve
foreign relations, are primarily for the Executive Branch, with which
courts should not interfere. [Alvarez-Machain]{.underline}, 504 U.S. at
669 & n.16. The Executive Branch\'s primacy in foreign relations
provides a \"special factor\" counseling against extension of the Alien
Tort statute to these circumstances. [Haig]{.underline}, 453 U.S. at
292; [see also]{.underline} [United States]{.underline} v.
[Verdugo-Urquidez]{.underline}, 494 U.S. 259, 274 (1990); J.M. Rogers,
International Law And United States Law 213-15 (1999). The existing
State-to-State remedial régime under international law for
State-sponsored transborder arrests --- and the primacy of the Executive
Branch in determining our nation\'s response to such incidents --- cuts
sharply against extension of section 1350 to the present circumstances.

**II. THE DISTRICT COURT ERRED IN HOLDING SOSA LIABLE FOR [PLAINTIFF\'S
DETENTION UNDER THE ALIEN TORT STATUTE. ]{.underline}**

This Court has held that \"prolonged arbitrary detention\" is an
actionable violation of international human rights law under section
1350, [Martinez]{.underline}, 141 F.3d at 1383-84; [accord]{.underline}
[Hilao]{.underline} v. [Estate of Marcos]{.underline}, 103 F.3d 789,
790-91, 794-95 & n.9 (9th Cir. 1996), and has upheld liability where
aliens have been detained for prolonged periods by their own government
without adequate legal process. [Id.]{.underline} The district court
erred in holding Sosa liable here for two reasons.

First, there is no basis for concluding that plaintiff\'s detention was
arbitrary. As noted above, plaintiff\'s detention by Sosa was supported
by a properly issued federal warrant following indictment by a grand
jury. By reason of the warrant, plaintiff\'s detention was simply not
\"arbitrary\" as a matter of law. [Martinez]{.underline}, 141 F.3d at
1384. The district court distinguished [Martinez]{.underline} on the
ground that, in [Martinez]{.underline}, there was a valid Mexican
warrant and here there was not. ER 108. This confuses Mexican
[domestic]{.underline} law with [international]{.underline} law. Whether
the lack of a Mexican warrant raises concerns, either as a matter of
[Mexican]{.underline} law or as a breach of territorial integrity
(discussed above), it does not render plaintiff\'s detention by agents
acting on behalf of DEA \"arbitrary,\" either as a matter of fact or
legal process.

Second, even if arbitrary, plaintiff\'s detention simply was not
prolonged. It is uncontested that plaintiff was detained for less than
twenty-four hours. ER 101, 109-10, 116-20. The district court held that
plaintiff\'s claim \"does not depend on the length of his detention\";
rather, that period only goes to the issue of damages. [Id.]{.underline}
This ruling effectively eliminates the term \"prolonged\" from the
actionable violation, rendering individuals liable under section 1350
for [any]{.underline} arbitrary detention. It is also contrary to the
Restatement, which recognizes that \"arbitrary detention violates
customary law\" only \"if it is [prolonged]{.underline} \* \* \*.\"
Restatement, supra, § 702, cmt. h (emphasis added).

Plaintiff\'s brief detention by Sosa was not a \"prolonged, arbitrary
detention\" and the district court\'s judgment on this ground should be
reversed.

**CONCLUSION**

For the reasons stated above, the judgment against defendant Sosa should
be reversed.

Respectfully Submitted,

DAVID W. OGDEN

[Acting Assistant Attorney General]{.underline}

ALEJANDRO N. MAYORKAS

[United States Attorney]{.underline}

JAMISON S. BOREK BARBARA L. HERWIG

[Deputy Legal Adviser]{.underline} (202) 514-5425

ANDRE M. SURENA JOHN P. SCHNITKER

[Assistant Legal Adviser]{.underline} (202) 514-4116

[Office of the Legal Adviser]{.underline} [Attorneys, Appellate
Staff]{.underline}

[Department of State]{.underline} [Civil Division, Room
9142]{.underline}

[2201 C Street, N.W.]{.underline} [Department of Justice]{.underline}

[Washington, D.C. 20520]{.underline} [601 D Street, N.W.]{.underline}

[Washington, D.C. 20530-0001]{.underline}

MARCH 2000

**CERTIFICATE OF COMPLIANCE**

Pursuant to Fed. R. App. P. 29(d) and Ninth Circuit R. 32-1, I hereby
certify that the text of the attached [amicus]{.underline} brief is
proportionately spaced, using 14 point Times New Roman font or larger
for both text and footnotes. Using the word count provided on our word
processing system, I also certify that the above brief contains 6849
words, for an average of 228 words per page.

\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Date JOHN P. SCHNITKER

CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of March, 2000, I caused to be
served two copies of the foregoing BRIEF FOR THE UNITED STATES AS
[AMICUS]{.underline} [CURIAE]{.underline} IN SUPPORT OF REVERSAL OF THE
JUDGMENT AGAINST DEFENDANT-APPELLANT JOSE FRANCISCO SOSA by first class
mail, postage prepaid upon:

Paul L. Hoffman, Esq.

Schonbrun, DeSimone, Seplow,

Harris & Hoffman, LLP

723 Ocean Front Walk

Venice, CA 90291

Counsel for Plaintiff-Appell­­ee/Cross-Appellant

Humberto Alvarez-Machain

Charles S. Leeper, Esq.

Glenn S. Greene, Esq.

Spriggs & Hollingsworth

1350 I Street, N.W.

Ninth Floor

Washington, D.C. 20005

Counsel for Defendant-Appellant/Cross-Appellee

Francisco Sosa

Lee W. Cotugno, Esq.

Kalisch, Cotugno & Rust

9606 Santa Monica Blvd.

Beverly Hills, CA 90210

Counsel for Defendant-Appellant/Cross-Appellee

Francisco Sosa

Gary S. Lincenberg, Esq.

Thomas V. Reichert, Esq.

Bird, Marella, Boxer & Wolpert

1875 Century Park East, 23rd Floor

Los Angeles, CA 90067-2561

> Counsel For Defendant-Appellee

Antonio Garate-Bustamante

Mary Hampton Mason, Esq.

Attorney, Civil Division

U.S. Department of Justice

Ben Franklin Station, P.O. Box 7146

Washington, D.C. 20044-7146

Counsel For Defendants-Appellees Jack Lawn,

Peter Gruden, William Waters and Hector Berrellez.

and also caused to be filed an original and fifteen (15) copies of the
foregoing Brief

by first class mail, postage prepaid upon:

Ms. Cathy Catterson

Clerk, United States Court of Appeals

for the Ninth Circuit

P. O. Box 193939

San Francisco, CA 94119-3939

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

JOHN P. SCHNITKER

[^1]: ^[?]{.underline}**/**^ All record references shall be to the
    Excerpts of Record (ER) filed concurrently with the Opening Brief of
    Appellant Sosa and shall be referenced by page number.

[^2]: ^[?]{.underline}**/**^While we take this Court\'s decision in
    [Estate I]{.underline}, 978 F.2d at 495n.1, 500, as the law of this
    Circuit and the starting point for our analysis, the United States
    respectfully reserves the right to pursue other arguments concerning
    section 1350 where not foreclosed by precedent.

[^3]: ^[?]{.underline}**/**^ While plaintiff also invokes the general
    principle that \"\[a\] 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,\" this principle is merely a \"corollary\" of the
    principle of state territorial sovereignty and adds nothing to
    plaintiff\'s argument. Restatement (Third) of Foreign Relations Law
    § 432(2) & cmt. b (1986) (Restatement).

[^4]: ^[?]{.underline}**/**^ In contrast to this claim, the
    international legal norms previously recognized by this Court as
    actionable under section 1350 have all implicated the relations of
    States to individuals, rather than the relations of States to
    States. [Compare]{.underline} [Martinez]{.underline}, 141 F.3d at
    1383-84 (arbitrary arrest, prolonged arbitrary detention); [Estate
    II]{.underline}, 25 F.3d at 1475 (summary execution, causing
    \"disappearance\"); [Siderman de Blake]{.underline} v. [Republic of
    Argentina]{.underline}, 965 F.2d 699, 714, 717 (9th Cir. 1992),
    [cert. denied]{.underline}, 507 U.S. 1017 (1993) (torture).

[^5]: ^[?]{.underline}**/**^ We recognize this Court has held that
    section 1350 provides plaintiff with a cause of action. [Estate
    II]{.underline}, 25 F.3d at 1475. As plaintiff noted in the Supreme
    Court, however, the issues of standing and a cause of action are
    conceptually \"distinct,\" Brief For Respondent, 1992 WL 526163, at
    \*41, [Alvarez-Machain]{.underline}, [supra]{.underline},
    [citing]{.underline} [Davis]{.underline} v. [Passman]{.underline},
    442 U.S. 228, 239-40n.18 (1979). While plaintiff would have a cause
    of action under section 1350 if he could show that his rights under
    international law had been violated, he has no standing to complain
    of any violation of Mexico\'s territorial sovereignty as a result of
    his arrest.

[^6]: ^[?]{.underline}**/**^ In order to effectively carry out its
    legitimate policies, the United States may violate international
    law. [United States]{.underline} v. [Howard-Arias]{.underline}, 679
    F.2d 363, 371-72 (4th Cir.), [cert. denied]{.underline}, 459 U.S.
    874 (1982).

[^7]: ^[?]{.underline}**/**^ Indeed, such matters touch on political
    questions, inappropriate for judicial resolution. [See]{.underline}
    [Baker]{.underline} v. [Carr]{.underline}, 369 U.S. 186, 210-13
    (1962).

[^8]: ^[?]{.underline}**/**^ Plaintiff also relies on a legal opinion of
    the Inter-American Juridical Committee of the Organization of
    American States (OAS) that the [Alvarez-Machain]{.underline}
    decision is contrary to international law. Opinion of the
    Inter-American Juridical Committee [reprinted in]{.underline} 13
    Hum. Rts. L.J. 395-99 (1992). The Committee acknowledged, however,
    that its views were \"a matter of consultative opinions that have no
    binding effect.\" [Id.]{.underline} at 396. Indeed, Judge Rubin
    entirely abstained from ruling on the ground \"the Committee has no
    jurisdiction to act in this way.\" [Id.]{.underline} at 399.

[^9]: ^[?]{.underline}**/**^ Some of the authorities on which plaintiff
    relies permit the individual to raise the manner of apprehension as
    a basis for dismissal of the charge. [Bennett]{.underline} v.
    [Horseferry Road Magistrate\'s Court]{.underline}, \[1993\] 3 All
    E.R. 138 (House of Lords); [S.]{.underline} v.
    [Ebrahim]{.underline}, 1991 S. Afr. L. Rep. 1 (Apr.-June 1991); [In
    re Jolis]{.underline} \[1933-34\] Ann. Dig. 191 (Tribunal
    Correctional d\'Avesnes). Such a result, however, was rejected by
    the Supreme Court as to this plaintiff.
    [Alvarez-Machain]{.underline}, 507 U.S. at 666-670.

[^10]: ^[?]{.underline}**/**^ The last case cited by plaintiff is a very
    confused decision concerning whether German authorities properly
    exercised jurisdiction over six French Foreign Legion deserters in
    Morocco, which, at the time, was under French military occupation.
    The case does not support an individual remedy. In fact, the court
    held that \"the conflict between the two \[State\] jurisdictions
    \[over the deserters\] could not be determined by any absolute or
    general rule.\" [Casablanca Case (France v. Germany)]{.underline},
    Hague Ct. Rep. 110 (Scott ed. 1916).

[^11]: ^[?]{.underline}**/**^ Mr. Kreczko, however, also stated that the
    United States was \"not prepared to categorically rule out
    unilateral action \* \* \* in certain extreme cases\" as a matter of
    \"self-defense.\" [Id.]{.underline}

[^12]: ^[?]{.underline}**/**^ As the Treaty indicates, extradition of
    the individuals responsible for the seizure is another possible
    State-to-State remedy and has been agreed to by the United States
    under certain circumstances. [See]{.underline} [Kear]{.underline} v.
    [Hilton]{.underline}, 699 F.2d 181 (4th Cir. 1983).

[^13]: ^[?]{.underline}**/**^ The Treaty is subject to ratification
    (Art. 9) and has not been ratified.

[^14]: ^[?]{.underline}**/**^ Unless adopted as a decision under Chapter
    VII of the U.N. Charter, U.N. Resolutions, including the one adopted
    in the Eichmann case, are non-binding. G. Schwarzenberger & E.D.
    Brown, A Manual of International Law 237 (1976). In Eichmann\'s
    prosecution, the Israeli courts held that the manner of his
    rendition \"must \* \* \* find its solution at th\[e\] international
    level\" rather than before Israel\'s domestic tribunals. [Attorney
    General]{.underline} v. [Eichmann]{.underline}, 36 I.L.R. 277, 305
    (S.Ct. Israel 1962).

[^15]: ^[?]{.underline}**/**^ The only instance cited by plaintiff in
    which reparations were paid to an individual involved the situation
    where the seized party was executed by the apprehending State before
    he could be returned. [Amekrane]{.underline} v. [United
    Kingdom]{.underline} [discussed in]{.underline} 1 Bassiouni,
    International Extradition: United States Law & Practice ch. V, §
    5.4, at 236-37 (2d rev. ed. 1987). As Bassiouni explains, the
    abducted person\'s \"widow received compensation as part of a
    settlement solution\" between the affected States which, since the
    abducted person was dead, \"there was no alternative remedy of
    requesting the country which kidnapped him to return him.\"
    [Id.]{.underline} That is hardly the situation here.

[^16]: ^[?]{.underline}**/**^ U.N. Charter, 59 Stat. 1037, art. 2(4)
    (June 26, 1945):

    > All Members shall refrain in their international relations from
    > the threat or use of force against the territorial integrity or
    > political independence of any state, or in any other manner
    > inconsistent with the Purposes of the United Nations.

[^17]: ^[?]{.underline}**/**^ Charter of the OAS, 2 U.S.T. 2420, TIAS
    No. 2361, art. 17, as amended by the Protocol of Buenos Aires, 21
    U.S.T. 607, 659, 662, TIAS No. 6847 (April 30, 1948), Art. V
    (amending Art. 17 to Art 20):

    > The territorial integrity of a State is inviolable; it may not be
    > the object, even temporarily, of miliary occupation or of other
    > measures of force taken by another State, directly or indirectly,
    > on any ground whatsoever. No territorial acquisitions or special
    > advantages obtained either by force or other means of coercion
    > shall be recognized.

[^18]: ^[?]{.underline}**/**^ \"The Parties shall carry out their
    obligations under this Convention in a manner consistent with the
    principles of sovereign equality and territorial integrity of States
    and that of non-intervention in the domestic affairs of other
    States.\"

[^19]: ^[?]{.underline}**/**^ \"A Party shall not undertake in the
    territory of another Party the exercise of jurisdiction and
    performance of functions which are exclusively reserved for the
    authorities of that other Party by its domestic law.\"

[^20]: ^[?]{.underline}**/**^ Art. 7. Right to personal liberty: \"1.
    Every person has the right to personal liberty and security\"; \"3.
    No one shall be subject to arbitrary arrest and imprisonment\"; Art.
    22 Freedom of movement and residence: \"5. No one can be expelled
    from the territory of the State of which he is a nation, or deprived
    of the right to enter it.\"

[^21]: ^[?]{.underline}**/**^ Art. 9: \"1. Everyone has the right to
    liberty and security of person. No one shall be subjected to
    arbitrary arrest and detention.\" \"5. Anyone who has been a victim
    of unlawful arrest or detention shall have an enforceable right to
    compensation\"; Art. 10: \"1. All persons deprived of their liberty
    shall be treated with humanity and respect for the inherent dignity
    of the human person.\"

[^22]: ^[?]{.underline}**/**^ Art. 3: \"Everyone has the right to life,
    liberty and security of person\"; Art. 9: \"No one shall be
    subjected to arbitrary arrest, detention, or exile\"; Art. 10:
    \"Everyone is entitled in full equality to a fair and public hearing
    by an independent and impartial tribunal, in the determination of
    his rights and obligations and of any criminal charges against
    him.\"

[^23]: ^[?]{.underline}**/**^ Art. 1: \"Every human being has the right
    to life, liberty and the security of his person\"; Art. 8: \"Every
    person has the right to fix his residence within the territory of
    the state in which he is a national, to move about freely within
    such territory, and not to leave it except by his own will.\"

[^24]: ^[?]{.underline}**/**^ Even if plaintiff could invoke the
    provisions of the Covenant, there is doubt whether it would apply.
    Under the Covenant, the United States only agreed to ensure the
    rights recognized by the Covenant \"within its territory and subject
    to its jurisdiction.\" Covenant, [supra]{.underline}, Part II, Art.
    2.1. In this case, plaintiff complains of Sosa\'s conduct in Mexico
    resulting in plaintiff\'s transfer to U.S. custody; prior to his
    arrest in El Paso, plaintiff was not \"within the territory\" or
    \"subject to the jurisdiction\" of the United States and the
    Covenant is not applicable.

[^25]: ^[?]{.underline}**/**^ In this connection, the United States
    notes that, by virtue of the warrant, the district court held that
    neither Sosa nor any other federal law enforcement agents were
    liable under California tort law for either false arrest or false
    imprisonment. ER 81-89.