- The Washington Times - Friday, January 18, 2002

While broadly popular with the American people, President Bush's decision to try suspected terrorists in military tribunals has been subjected to some steep criticism among the chattering classes.

Critics apparently believe we should not allow concerns about public order to outweigh our core civil liberties, including the right to be tried before a jury of our peers in a public courtroom, subject to the plethora of constitutional protections that have arisen over the past three decades.

But whether suspected terrorists deserve the same system that allowed O.J. Simpson to go free depends upon whether our mission against global terrorism is principally one of law enforcement to investigate, indict, prosecute, and punish terrorists as ordinary criminals rather than one of war to hunt down and exterminate an organized foreign force fanatically dedicated "to kill[ing] all Americans," as the president emphasized in his Sept. 20 speech to Congress. One would think that, at least as far as al Qaeda and related groups are concerned, this is closer to war than ordinary crime.

To be sure, the horrific acts of September 11 were crimes, and Osama bin Laden and his fellow al Qaeda terrorists are criminals on a monstrous scale. This fact triggers the predictable demand in faculty lounges and other enclaves of One-Worldism for our government to accord the terrorists the rights of criminal defendants under the U.S. Constitution and "international law." But recent history suggests that doing so could be a big mistake.

Consider the startling case of Humberto Alvarez-Machain, the most recent chapter of which was decided, ironically, on the same day that bin Laden's deranged disciples murdered thousands of people in New York, Virginia and Pennsylvania.

Dr. Alvarez, a physician in Mexico, was indicted in 1990 by a federal grand jury in California for his role in one of the most infamous crimes in the history of federal law enforcement: the torture and murder of Drug Enforcement Agency undercover agent Enrique Camerana by members of the Guadalajara drug cartel. According to testimony at his trial, Dr. Alvarez injected the heart drug Lidocaine into Agent Camarena in order to keep him fully conscious for more than 30 hours while his torturers broke his ribs, fractured his skull "like an eggshell," and drilled a hole through his head, apparently with a screwdriver.

Unable to extradite Dr. Alvarez and not content to allow Agent Camerana's murderers to escape justice, DEA officials arranged to have a group of Mexican nationals arrest Dr. Alvarez in Guadalajara and deliver him into the DEA's custody for trial in Los Angeles.

Dr. Alvarez had been brought to court, but not to justice. Federal District Court Judge Edward Rafeedie ruled that Dr. Alvarez's arrest in Mexico violated the U.S.-Mexico Extradition Treaty and ordered that he be repatriated to Mexico. The federal court of appeals in California agreed with Judge Rafeedie, but the Supreme Court did not, and Dr. Alvarez finally went to trial in 1992. Despite Dr. Alvarez's admission that he was present during Agent Camerana's torture, and an informant's testimony that he saw Dr. Alvarez there cleaning his syringes, Judge Rafeedie again ordered that Dr. Alvarez be returned to Mexico, ruling that the evidence was not sufficient even to send the case to the jury.

Thus was justice denied in the murder of Agent Camerana, but the courts were not finished. As soon as Dr. Alvarez got back to Mexico, he retained an American lawyer and, of course, sued the federal government, the DEA's top officials, and the Mexicans who arrested him. Dr. Alvarez claimed that regardless of his guilt or innocence, he had a right under "international law" not to be arrested by or at the behest of federal law enforcement agencies in a foreign country that refused his extradition.

In a decision handed down on September 11, the court of appeals agreed, ruling that Dr. Alvarez's arrest in Mexico violated "customary international human rights law" by denying "his rights to freedom of movement, to remain in his country, and to security in his person." The court of appeals relied upon a grab bag of "international human rights instruments," such as the United Nation's Universal Declaration of Human Rights, although it acknowledged that none of them expressly "provide that forcible abduction or irregular extradition is a violation of international human rights law."

But even if "international law" norms do condemn Dr. Alvarez's arrest and forcible extradition, how do those norms become enforceable in an action for money damages in a federal court against the federal government? While it correctly ruled that DEA officials who arranged Dr. Alvarez's arrest were immune from suit, the court of appeals concluded that the violations of Dr. Alvarez's rights under "international law" constituted a "false arrest" redressible in a damages action against the federal government under the Federal Tort Claims Act.

The court of appeals was not deterred by the large body of federal law indicating that the DEA, like other federal law enforcement agencies, has "extraterritorial" authority that is, authority to conduct law enforcement activities, including arrests, outside the United States. The court of appeals cast aside this body of law not because it was wrong or because it was contradicted by more persuasive legal authority, but because the court simply did not like it. "If this assertion [of extraterritorial authority] is an accurate statement of United States law," the court said, "then it reinforces the critics of American imperialism in the international community." In other words, rather than enforce what the court viewed as "imperialistic" federal law, the court adopted the international law norm that required the DEA to quixotically seek a Mexican warrant for Dr. Alvarez's arrest. Given this reasoning from one of our federal appellate courts, we can expect lawyers for American Taliban member John Walker to argue that the "imperialistic" action of the United States in arresting him in Afghanistan his chosen home under international law was in violation of international law, and therefore entitles him to relief from our justice system.

The Alvarez case dramatically illustrates that when it comes to protecting our national interests from foreign enemies, we cannot rely upon our normal courts. Nor does the Constitution require us to. It assigns responsibility for defending the nation's security to the president and the Congress through the armed forces. The president is empowered to refer terrorists and other combatants to military tribunals in cases where the defendant poses a threat to our national security. The attacks perpetrated on September 11 amply prove that such a threat exists. The Alvarez decision released on September 11 amply shows why military tribunals must be used to address that threat. Anything less would jeopardize our sense of justice and our national safety two pillars without which the rule of law, and all our liberties, become impossible.

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