Alvarez-Machain

*608 Opinion by Judge McKEOWN; Concurrence by Judge FISHER; Dissent by Judge O’SCANNLAIN; Dissent by Judge GOULD.

OPINION

We must decide whether the forcible, transborder abduction of a Mexican national, Humberto Alvarez-Machain (“Alvarez”), by Mexican civilians at the behest of the Drug Enforcement Administration (the “DEA”) gives rise to a civil claim under United States law. In an earlier, related proceeding, the Supreme Court acknowledged, without deciding, that Alvarez “may be correct” in asserting that his abduction was “shocking” and “in violation of general international law principles.” United States v. Alvarez-Machain, 504 U.S. 655, 669 , 112 S.Ct. 2188 , 119 L.Ed.2d 441 (1992). We now address the question left unanswered—whether there was a “violation of the law of nations,” a predicate to federal court jurisdiction under the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350 . We also consider whether the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346 (b)(1), 2671-2680, provides a remedy for this cross-border abduction.

In 1990, Mexican citizens acting on behalf of the DEA kidnapped Alvarez from his office in Mexico for his alleged involvement in the kidnapping…

with whom Chief Judge SCHROEDER and Circuit Judges GOODWIN, THOMAS, and PAEZ join, concurring:

I fully concur in the majority opinion, but write separately to articulate another ground on which I base my conclusion that Alvarez’s arrest and detention were arbitrary because they were conducted without lawful authority. As the majority opinion explains, whatever power the political branches might have to override the principle of territorial sovereignty, Congress has not expressed its intent to delegate that power to the Drug Enforcement Agency. I would add, moreover, that to the extent the Executive branch has the power to act without congressional sanction, there has been no showing that that power was properly invoked here.

It may well be, as the majority and the dissenting opinions assume, that the Executive — like Congress — has the authority to breach another nation’s sovereignty and override other norms of international law, should the need arise. It is evident, however, that neither Congress nor the Executive has expressed an intent to allow sub-Cabinet-level law enforcement officials in the DEA to be the final arbiters of that authority. The President, the Attorney…

with whom Circuit Judges RYMER, KLEINFELD, and TALLMAN join, dissenting:

We are now in the midst of a global war on terrorism, a mission that our political branches have deemed necessary to conduct throughout the world, sometimes with tepid or even non-existent cooperation from foreign nations. With this context in mind, our court today commands that a foreign-national criminal who was apprehended abroad pursuant to a legally valid indictment is entitled to sue our government for money damages. In so doing, and despite its protestations to the contrary, the majority has left the door open for the objects of our international war on terrorism to do the same.

*646 What makes this astounding pronouncement even more perverse is that our court divines the entitlement to recovery from the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350 , a statute first enacted over 200 years ago by members of the First Congress, many of whom were Framers of our nation’s Constitution. With utmost respect to the majority, there is simply no basis in our nation’s law for this bewildering result, and the implications for our national security are so ominous that I must dissent.

I

Notwithstanding the…

dissenting:

I respectfully dissent because this ease presents a nonjusticiable political question requiring scrutiny of an executive branch foreign policy decision. The majority passes judgment on an executive branch decision to act against foreign nationals on foreign soil in a matter directly affecting the United States’s relations with a foreign nation. 1 Because our Constitution entrusts the conduct of our nation’s foreign policy to Congress and to the executive branch, this case poses a political question decidedly inappropriate for judicial review.

The Supreme Court has held that certain allegations of illegal government action should not be ruled on by the federal courts even though all jurisdictional requirements are met. The Court has said that decision in these areas should be left to the politically accountable branches of government, the executive branch and Congress. The reasons for this political question doctrine have been variously described, 2 but, at its core, the political question doctrine represents the judiciary’s wise recognition that the structure of our Constitution, its separation of powers, requires judicial restraint when certain subjects are at…