WASHINGTON – When Mexican bounty hunters seized an obstetrician from Guadalajara in 1990 to face murder charges in the United States, they likely did not know his case might one day influence how the federal government brings terror suspects to justice.
But the case of Humberto Alvarez-Machain (search) could have a lasting impact on the U.S. war on terror, especially the government's ability to reach into a foreign country to seize a suspected terrorist.
Bush administration lawyers and national security experts argue the government must have the authority to bring terror suspects to justice no matter where in the world they are — even if that means kidnapping them and dragging them back to the United States.
"I know we need to be quite sensitive in working with other countries, but I think its critically important to maintain the ability to effectively deter and defend ourselves against terrorists who kill Americans," said John Norton Moore (search), director of national security law studies at the University of Virginia.
But not everyone agrees regarding the use of tactics, and when they should be used, as the administration prepares to argue why it must retain the authority to covertly apprehend suspects from foreign countries and make them stand trial in U.S. courts.
The Supreme Court on Dec. 1 agreed to decide whether U.S. law enforcement officials had the right to hire Mexican bounty hunters to track down, kidnap and bring Alvarez-Machain back to the United States.
Alvarez-Machain was accused of taking part in the brutal torture and murder of a drug enforcement agent more than 13 years ago. The doctor spent two years in prison, but was eventually acquitted and has spent the years since suing the U.S. government for dragging him over the border.
His case was first brought to the Supreme Court in 1992. The court ruled that the government had the right to kidnap people from foreign countries and prosecute them over that nation's objection, without violating an extradition treaty.
But Alvarez-Machain refused to give up. He is seeking millions of dollars in civil damages under the Alien Tort Claims Act (search), claiming the government is violating international law.
Lower courts so far have sided with Alvarez-Machain. The 9th Circuit Court of Appeals (search) agreed with a lower court that ruled in the doctor's favor, saying federal drug agents acted illegally when they kidnapped him. The court upheld an award of $25,000 with the possibility of more damages.
The Supreme Court is hearing the administration's appeal of that ruling. The court will decide whether an agency — in this case the Drug Enforcement Agency — rather than the president, had the right to order the kidnapping, and whether Alvarez-Machain can sue for damages.
Furthermore, the administration is seeking clarification on when federal agents have the power to arrest someone in a foreign country.
Rothenberg pointed out that the United States has pledged to drag Sept. 11 mastermind Usama bin Laden to justice, by any means necessary. If the court ruled that the plaintiff in this case could sue the United States based on his own kidnapping, it could spell problems in the future.
"If the executive branch determination is to capture and bring back to the U.S. terrorists, including perhaps Usama bin Laden himself, from countries where there is either no government or the government does not want to cooperate, or does not want to be seen cooperating, the suspect could turn around and sue the officials who did it," he said.
But others say the United States is breaking international law by using its powers to kidnap non-terrorists suspects like Alvarez-Machain, who was later acquitted. If such suspects are not allowed to sue for damages, the government would be allowed to arrest suspects on foreign soil unchecked.
"The question is, should the government be able to go and round up people in foreign countries, without a legal basis. This isn't in the context of a war," said Erwin Chemerinsky (search), a law professor at the University of Southern California and one of Alvarez-Marchain's lawyers.
Georgetown University Law Professor David Cole (search) called the Mexican case "a clear violation of international law."
"Imagine if the Mexicans starting doing that to our people? We certainly wouldn't be saying it was their prerogative," he said.
But others charge that international law is far from clear. Furthermore, said Moore from the University of Virginia, the United States should have the right to seize suspects who have committed terrorist acts against Americans, here or abroad.
"We have the right to defend ourselves and arrest them wherever we can get them," Moore charged.
The United States has sent agents and soldiers into other countries to nab suspects for prosecution before, he noted.
In 1989, President George H.W. Bush (search) ordered troops into Panama City to capture Panamanian leader Manuel Noriega (search) following the murder of a U.S marine there, and years of Noriega's suspected drug trafficking and terrorist activities. American courts convicted Noriega of racketeering, money laundering and drug trafficking and the former leader is now serving a 40-year sentence in a Miami federal prison.
More recently, Mir Aimal Kasi (search) was captured in Pakistan by FBI agents and brought back to the United States to stand trial for the murder of two Central Intelligence Agency agents outside the CIA headquarters in Langley, Va., in 1993. He was convicted and executed in 2002.
Cole said he understands that such extraditions are important in "extraordinary circumstances," like war. But he does not think the administration should abuse that authority by extending it to non-war related situations.
"I think the argument can be made that Congress has authorized the use of force against Al Qaeda, and that does give rise to wartime authorities, " he said, referring to the terrorist group responsible for the Sept. 11 attacks. "But it does not mean that the war on terror can be more broadly used to justify (kidnapping)."
The Associated Press contributed to this report.