- The Washington Times - Tuesday, January 8, 2002

To laugh or to cry over the foreign policy caper of the U.S. 9th Circuit Court of Appeals in Humberto Alvarez-Machain vs. United States dumbfounds Emily Post's code of manners. There the court last September 11 indulged the absurdity of a corrupt-free Mexican legal system in exposing the United States to damages for a "necessity" kidnapping abroad of a Mexican doctor indicted for complicity in the murder and torture of Drug Enforcement Administration special agent Enrique Camarena-Salazar.

Federal judges are foreign policy ingenues. None of the exalted nine on the United States Supreme Court, for instance, has ever brushed shoulders with serious foreign policy gambits. That is why the high court has repeatedly ordained for the judiciary a "hands off" standard in reviewing international relations charted by the president and Congress. Thus, the Supreme Court itself declined to pronounce on the legality of the Vietnam War, President Jimmy Carter's unilateral revocation of the Taiwan Defense Treaty, or the verdicts of the post-World War II Tokyo War Crimes Tribunal.

And subordinate tribunals remained mum over the liberation of our citizens by military invasion of then Marxist-Leninist Grenada, the Persian Gulf war, and the Panama Canal Treaties.

Judicial second-guessing of foreign policy is inherently unreliable and risks blunders both small and large. For reasons of diplomacy and comity, the president frequently dissembles. Candor and truthfulness with a court would be inflammatory or counterproductive. As the British adage puts it, an ambassador is an honest man sent abroad to lie for the Commonwealth.

Thus, the United States fiercely refuses open condemnation of Saudi Arabia's Taliban-like subjugation of women and sleepless persecution of non-Sunni religious creeds because it covets the Kingdom's opulence of oil and gas.

Iraq temporarily disappeared like the Cheshire cat from our list of state sponsors of terrorism during its 1980-88 war with Iran to forestall an Iranian victory. Pakistan's nuclear capability triggering United States military and economic sanctions was ignored to enlist its aid in defeating the Soviet 1979-89 invasion of Afghanistan. When the defeat came, the United States "suddenly" discovered Pakistan's nuclear arsenal and downgraded the nation from a spoiled child to an orphan. The much laureled Nuremberg Tribunal permitted the Soviet Union to charge the Third Reich with the Katyn Forest massacre of Polish officers, despite knowledge that Josef Stalin was the perpetrator, in hopes of maintaining postwar harmony.

U.S.-Mexican public discourse is similarly conducted in euphemisms, circumlocutions, and equivocations to advance a broad foreign policy agenda ranging from immigration and energy to the North American Free Trade Agreement and counternarcotics. Regarding the latter, the most illiterate, unschooled Mexican peasant can recite chapter and verse of the omnipresent corruption of the police, prosecutors, and the judiciary in matters of drug trafficking. United States diplomats and law enforcement officials are equally cognizant and dismayed. That explains the facts of the Alvarez case.

In 1990 (the pre-Vincente Fox era devoid of even baby step anti-corruption initiatives), a federal grand jury indicted Dr. Alvarez for collaborating in special agent Camarena's killing and torture. An arrest warrant was issued. DEA sensibly avoided enlisting the assistance of Mexican authorities to apprehend Alvarez and to secure his trial in the United States. That one or more was on the payroll of an international drug trafficking colossus and would tip off the indictee was as certain as Euclidean geometry.

Accordingly, DEA employed nonofficial Mexican nationals to capture Alvarez and return him across the border. The plan succeeded; federal agents arrested him in El Paso, Texas; and, he was tried but acquitted in a federal criminal prosecution.

Alvarez then sued the United States for damages under the Federal Tort Claims Act (FTCA). The complaint alleged false arrest, false imprisonment, kidnapping, and intentional and negligent infliction of emotional distress by DEA agents in the course of their law enforcement duties. The court of appeals upheld the FTCA claim.

Writing for a unanimous panel of three, Judge Alfred A. Goodwin insisted the United States-sponsored kidnapping transgressed customary international human rights law. He pointed to the semi-utopian commandments of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and a homily of a United Nations Human Rights Committee. Judge Goodwin further bowed to the pollyanish wisdom of academic scribblers and owl-eyed scholars to substantiate his understanding of international law practice.

The earmark of international law, however, is its customary honoring in the breach rather than the observance, except for the non-serious. Thus, Judge Goodwin's foolishness would have made Israel vulnerable to a damage suit by the estate or heirs of Adolph Eichmann because of the latter's kidnapping by the Israeli secret service on Argentinean soil prior to his trial and execution for genocide.

Hasn't international drug trafficking lawlessness been facilitated more by Judge Goodwin's decision than would have been an opposite holding? Aren't all human rights matters of degree, not absolutes?


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