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Suit Over Camarena Case Gains

Law: Appellate panel says kidnapped Mexican physician acquitted in drug agent's slaying can continue action, including torture charge, against officers and government.

September 25, 1996|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

A federal appeals court in San Francisco on Tuesday ruled that a Mexican doctor who was kidnapped by U.S. drug agents can sue the U.S. government and the law enforcement officers involved in the abduction.

Dr. Humberto Alvarez Machain was spirited out of Mexico on April 2, 1990, by men working for the Drug Enforcement Administration. He was turned over to DEA agents in this country, who suspected him of participating in the 1985 slaying of U.S. drug agent Enrique Camarena.

The doctor, who was acquitted of murder charges in 1992, alleged in a lawsuit that he was tortured by his abductors for several hours in Mexico before being brought to the United States. Once he was in this country, Alvarez claims, DEA agents threatened him, denied him food and medicine and processed him under a false name to frustrate efforts of his family and the Mexican government to locate him.

After his acquittal, Alvarez sued the U.S. government, four officials of the DEA and the two Mexican national kidnappers. A federal judge in Los Angeles ruled that much of the case could go forward, but the government appealed.

The DEA agents contended that charges against them should be dismissed on grounds that they possessed qualified immunity. The 9th Circuit Court of Appeals rejected that argument, saying that "pretrial detainees have a clearly established right to be free from punishment," Circuit Judge Alfred T. Goodwin wrote in the 3-0 decision.

The 9th Circuit also rebuffed claims of the two Mexican national DEA operatives that Alvarez improperly invoked the federal Torture Victim Protection Act against them because it was enacted in 1992, after the incident.

The judges acknowledged that in most instances there is a presumption against applying statutes retroactively. However, Goodwin and the other two judges--Mary M. Schroeder and Samuel P. King--said there was a good reason to make an exception.

"The Torture Victim Protection Act does not impose new duties or liabilities on defendants. Torture has long been condemned and prohibited by international law," the judges stressed, citing a 1980 case on this issue. They also stressed that "aliens have had the right to adjudicate torture claims in our federal courts since the passage of the Alien Tort Claim Act in 1789."

Diane Marie Amman, a UC Davis law professor, who specializes in international criminal law, said the decision was significant.

"It's a strong move for the 9th Circuit to say that people employed by the U.S. government who violate the rights of an individual are not immune from being responsible in the same way that agents of other countries would be," Amman said. "It would have been embarrassing if Dr. Alvarez were told that he had no recourse in U.S. courts, given the way he was treated and the way events unfolded in his criminal case."

She said the court's ruling on the torture victim statute was perhaps the most legally significant aspect of the decision. "By the time these acts occurred, no government official should have thought that torture could not be punished in some way," Amman said.

Alvarez's attorney, Santa Monica lawyer Paul Hoffman, said he was pleased with the ruling. "If the court had accepted the defendant's arguments--which amounted to a claim that they could kidnap Dr. Alvarez with complete impunity and without any oversight by U.S. courts--it would have set a dangerous precedent."

A Justice Department lawyer, who represents the DEA in the case, said that department officials were reviewing the decision and that there would be no immediate comment.

Washington attorney Michael L. Martinez, who represents the four individual DEA officials, said, "We believe the court was incorrect with respect to the four government officials." Martinez said three of the four agents--Bill Waters, Pete Gruden and Hector Berellez, who was the lead agent investigating the Camarena slaying from Los Angeles--are still with the agency. The fourth, former DEA Director John C. Lawn, is now an executive with the New York Yankees. Martinez said they are considering an appeal.

The attorney who represents Antonio Garate Bustamante, who arranged the kidnapping with the approval of a DEA agent in Los Angeles, said he too was considering an appeal. Los Angeles attorney Gary Lincenberg predicted that the case eventually would be thrown out of court "because Alvarez does not have a valid claim against the DEA."

In a 1990 interview with The Times, Garate described how he orchestrated the kidnapping and admitted that he had assisted the DEA for several years in tracking down suspects believed to have been involved in Camarena's kidnapping and slaying. DEA officials confirmed that Garate was the key go-between in arranging the abduction, calling him a longtime agency "asset," a term frequently used to describe an informant and operative.

Camarena, a veteran DEA agent based in Guadalajara, was kidnapped, tortured and slain in 1985 in that city. His death precipitated a massive manhunt and several prosecutions. Eight men have been convicted in this country of participating in the murder and have been sentenced to lengthy prison terms.

Alvarez was charged with administering an injection of lidocaine to Camarena during his torture to keep him alive so he could be interrogated further by Mexican drug lords about what he knew of their operations.

The Mexican government vociferously protested the doctor's abduction. After he was acquitted, then-Mexican President Carlos Salinas de Gortari accused U.S. prosecutors of slandering Mexican officials as part of their case.

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