Alvarez-Machain v. United States

O’SCANNLAIN, Circuit Judge,

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.1

*646What 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 majority’s lengthy disquisitions concerning various theories and sources of international law, the central issue in this case is very simple: Do American law enforcement agents violate well-established principles of American jurisprudence when they apprehend a duly-indicted suspect outside the confines of our nation’s borders?2 The answer is clearly no; the United States has neither now nor ever agreed to an asserted international law principle prohibiting the practice of transborder abduction.3

The majority, perhaps overlooking the grandeur of the forest while gazing with much admiration at the trees, meanders through various sources which suggest how pleasant it would be if transborder abduction were actionable. However, the majority’s searching inquiry into the scope of international law is simply unnecessary. The ATCA is a congressionally enacted statute; accordingly, international law in this context must first and foremost comport with American case law and congressional intent, rather than be defined by the amorphous expressions of other countries or international experts. In other words, no claim can be actionable under the ATCA based on a norm to which the United States itself does not subscribe.

I do not suggest that the majority’s inquiry into the status of transborder arrest in the broader international community — which Congress, by enacting the ATCA, has directed us to perform in appropriate cases — is one beyond the federal courts’ ability to undertake. Indeed, some areas of substantial international unanimity are easily recognized. See, e.g., Trajano v. Marcos (In re Estate of Ferdinand E. Marcos Human Rights Litig.) (“Marcos I”), 978 F.2d 498, 500 (9th Cir.1992). Nevertheless, I believe that in many cases, as in this one, it will be far easier to determine whether the United States sub*647scribes to a given norm than whether other countries do, and accordingly the former inquiry should appropriately precede the latter.

II

I respectfully suggest that the majority has imprudently ignored the relevant underpinnings of the ATCA. As demonstrated below, a proper historical understanding of the ATCA compels the conclusion that no claim can prevail where the United States, through its political branches, does not acquiesce in an international norm.

A

First enacted as part of the Judiciary Act of 1789, the ATCA still reads today almost exactly as the First Congress drafted it; the version currently enshrined in Title 28 provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350 (1994); see Judiciary Act of Sept. 24, 1789, ch. 20, § 9(b), 1 Stat. 73, 77.

The ATCA was, from the beginning, .a curious provision. As one eminent scholar of both federal jurisdiction and American legal history notes, the ATCA was one of only two provisions of the Judiciary Act that “arguably g[a]ve federal courts jurisdiction over judicial matters outside the enumeration of Article III.” David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801, at 51-52 (1997).4 Perhaps because of the singular nature of its jurisdictional grant, the ATCA was infrequently used for almost two hundred years, until fairly recently when courts have eagerly exploited the opportunity to revivify it.

In the course of this resurgence of a statutory provision that lay largely dormant since our nation’s founding, our court has determined that certain international law principles may be incorporated into federal common law, and thereby into the ATCA as well. See Hilao v. Estate of Marcos (In re Estate of Ferdinand Marcos, Human Rights Litig.) (“Marcos II”), 25 F.3d 1467, 1475 (9th Cir.1994). The Marcos II court set out the standard for evaluating whether an ATCA plaintiff states a claim: “Actionable violations of international law must be of a norm that is specific, universal, and obligatory.” Id; accord, e.g., Papa v. United States, 281 F.3d 1004, 1013 (9th Cir.2002); Martinez v. City of Los Angeles, 141 F.3d 1373, 1383-84 (9th Cir.1998).

B

The requirement of “universality” constitutes an insurmountable bar to recovery for transborder arrest.5 I focus in particu*648lar on the corollary of this requirement: a norm of international law not recognized by the United States cannot be deemed a universal one, actionable in this nation’s courts.

We have previously noted the importance of determining whether a norm of international law is recognized by the United States. See Martinez, 141 F.3d at 1383 (“To determine whether this tort satisfies the requirement for a tort claim under the Alien Tort Act, we must decide ‘[1] whether there is an applicable norm of international law [proscribing such a tort] ... recognized by the United States ... and [2] whether [that tort] was violated in [this] particular case.’ ” (quoting Marcos I, 978 F.2d at 502 (alterations in original) (emphasis added))). Marcos I did not state this requirement explicitly, but the exposition of the constitutional basis for the ATCA, see supra at 612, makes clear that the Martinez court correctly recognized that ATCA jurisdiction subsumes it.

Federal common law is a means of preserving a uniform national construction of rights and obligations within a given area of the law even in the absence of a detailed statutory scheme. See, e.g., Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640-41, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981). This consideration carries particular force in the foreign policy context in which the ATCA lies; it was passed, let us remember, in 1789, only months after the First Congress convened. The Framers, and presumably those who went on to serve the new government, were acutely conscious of the need for the national government’s interpretation of the law of nations to be controlling. See, e.g., The Federalist No. 8, at 43 (John Jay), No. 80, at 476-77, 478 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Yet one equally basic characteristic of federal common law is that Congress may supplant it as the rule of decision, because the power to legislate rests most properly with the elected representatives who possess both the greater competence and the greater authority, conferred by the people, to wield it. And the same is no less true with regard to the law of nations as federal common law; indeed, foreign policymaking is essentially confided not merely to the national government writ large, but to its political branches in particular.6 E.g., Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948); Oetjen v. Cent. Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918); see Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964).

*649The Framers and the First Congress viewed the United States’s substantial adoption of the law of nations as furthering their intention that the new nation take its place among the civilized nations of the world. E.g., Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 474, 1 L.Ed. 440 (1793) (opinion of Jay, C.J.). Yet they clearly did not mean for the law of nations to act as an irrevocably binding constraint on the law and policy-making authority of the national government. In his last contribution as Publius, John Jay famously recognized the binding nature of treaties, and a number of the Framers shared his view that treaties created a binding obligation on the contracting parties under the law of nations. The Federalist No. 64, at 394 (John Jay); see, e.g., Note, Restructuring the Modern Treaty Power, 114 Harv. L. Rev. 2478, 2484-90 (2001) (discussing the Framers’ views). But the law of nations imposed constraints “in point of moral obligation,” not restrictions on national policymakers’ power to breach. Ware v. Hylton, 3 U.S. (3 Dall.) 199, 272, 1 L.Ed. 568 (1796) (opinion of Iredell, J.). The Framers intended that the United States would have the power, if not necessarily the right under the law of nations, to violate or even to repudiate aspects of the law of nations, provided it were willing to face the consequences of its breach, possibly including war.7 And it was for this reason that the power to violate or to repudiate, like the power over foreign affairs generally, was confided to the national government. See The Federalist No. 80, supra, at 476 (“[T]he peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it.”). The federal common law’s incorporation of the law of nations, in short, is not beyond the political branches’ power to alter. And this fact is entirely consonant with the principle, expressed in our cases as elsewhere, that “[cjustomary international law, like international law defined by treaties and other international agreements, rests on the consent of states.” Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir.1992); see id. (“A state that persistently objects to a norm of customary international law that other states accept is not bound by that norm .... ” (citing Restatement (Third) of the Foreign Relations Law of the United States [hereinafter Restatement] § 102 cmt. d)).

Therefore, where the political branches have exercised their power to diverge from the course that others see the law of nations as setting, ATCA liability cannot lie. The ATCA’s conformity with Article III *650rests on the incorporation of the law of nations as federal common law — particularly in a case like this one, where neither alienage, nor admiralty, nor any of the other headings of Article III provides a basis for federal jurisdiction. It is for this reason that an ATCA plaintiff relying on the law of nations (as opposed to a treaty) must allege a tort that violates some norm of international law recognized by the United States.

At least one of the few Supreme Court opinions to consider the ATCA directly appears to have recognized as much. In O’Reilly De Camara v. Brooke, 209 U.S. 45, 28 S.Ct. 439, 52 L.Ed. 676 (1908), Justice Holmes wrote for a unanimous Court in affirming the dismissal of an ATCA complaint that alleged the tortious destruction of a hereditary title during the Spanish-American War. Id. at 48-49, 28 S.Ct. 439. Although the Court did not directly decide whether the plaintiff had alleged a tort cognizable under the ATCA, see id. at 52-53, 28 S.Ct. 439, it did make the following comment on that question: “[W]e think it plain that where, as here, the jurisdiction of the case depends upon the establishment of a ‘tort only in violation of the law of nations, or of a treaty of the United States,’ it is impossible for the courts to declare an act a tort of that kind when the Executive, Congress, and the treaty-making power all have adopted the act.” Id. at 52, 28 S.Ct. 439.

Such analysis fits with our case law’s incorporation of the requirement that an actionable norm of international law be “universal.” The case at hand does not require us to delineate the bare minimum level of acceptance that would constitute “universality”; instead, it invokes the simple proposition, stated explicitly in Martinez and implicitly in other cases, that in determining whether a norm is “universal,” the United States is to be counted as a part of the universe. A norm to which the political branches of our government have refused to assent is not a universal norm. It is not the judiciary’s place to enforce such a norm contrary to their will.8

*651C

The majority fails to take into account these fundamental principles, which invoke the historical understanding in which the ATCA was passed and the proper role of the political branches in determining our nation’s actions as they relate to national security. As a result, the majority’s analysis of the status of transborder arrest as an instrument of law enforcement — which has great bearing on its treatment of Alvarez’s alternative claim for relief for arbitrary arrest — is seriously flawed because it ignores the baseline proposition that it is easier for this court to determine whether the United States agrees with a norm than to determine whether a preponderance of the world’s other nations does.

Let us recall the particular circumstances of the case at hand. Alvarez was charged in 1990 with, among other offenses, the kidnaping9 and felony murder of a federal agent in violation of 18 U.S.C. §§ 1114(1) and 1201(a)(5). See, e.g., Alvarez-Machain II, 504 U.S. at 657 n. 1, 112 S.Ct. 2188. The kidnaping statute appears to contemplate the exercise of federal criminal jurisdiction over certain defendants who are neither Americans nor found in the United States. See 18 U.S.C. § 1201(e) (2000) (authorizing the exercise of jurisdiction over defendants if they are American nationals, if they are found in the United States, or “if the victim is a representative, officer, employee, or agent of the United States”). Notwithstanding the majority’s assertions to the contrary, the general statutes governing the operation of the Drug Enforcement Administration confer on DEA agents the authority to “make arrests without warrant ... for any felony, cognizable under the laws of the United States, if [an agent] has probable cause to believe that the person to be arrested has committed or is committing a felony.” 21 U.S.C. § 878(a)(3) (2000). DEA agents may also “perform such other law enforcement duties as the Attorney General may designate.” Id. § 878(a)(5).

This statutory framework confers on the DEA agents the same degree of authority to act extraterritorially that we have previously held INS agents to possess. See United States v. Chen, 2 F.3d 330 (9th Cir.1993). In Chen, we considered whether the INS was authorized to conduct criminal law enforcement activity outside the United States. We held that “Congress need not confer such authority explicitly and directly on the INS agents themselves.” Id. at 333. We inferred from Congress’s broad grant of authority to the Attorney General to enforce the *652immigration laws,10 and from the extraterritorial applicability of those laws, that the enforcement power extended where the laws themselves extended. See id. at 333-34.

Faced with our holding in Chen, Alvarez argues, and the majority erroneously agrees, that the criminal context presented in this case is distinguishable from the unique context of border security at issue in Chen. Yet the statutes at issue here bear just as directly on national security, particularly insofar as they relate to and promote the federal government’s ability to enforce the drug laws, and to protect the agents who carry out that enforcement, no matter on which side of the border they may be threatened. And so our cases have recognized. “Our circuit has repeatedly approved extraterritorial application of statutes that prohibit the importation and distribution of controlled substances in the United States because these activities implicate national security interests and create a detrimental effect in the United States.” United States v. Vasquez-Velasco, 15 F.3d 833, 841 (9th Cir.1994). As we stated in another prosecution arising from the Camarena abduction and murder: “We have no doubt that whether the kidnapping and murder of [DEA] agents constitutes an offense against the United States is not dependent upon the locus of the act. We think it clear that Congress intended to apply statutes proscribing the kidnapping and murder of DEA agents extraterritorially.” United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.1991).

Applying the reasoning of Chen to the statutes that protect American drug enforcement personnel leads to the inescapable conclusion that Congress has authorized federal agents enforcing those statutes to make warrantless arrests beyond our borders — a conclusion at odds with the argument that the United States respects a norm prohibiting trans-border arrests.

Moreover, such a norm, which would render a transborder arrest violative of the law of nations absent the host country’s consent, does not seem tenable either as a matter of statutory construction or as a reflection of Congress’ likely goal. I can conceive of a number of situations in which the nature of the host country’s government, or even the utter nonexistence of a functioning government, precludes obtaining the formal sanction of the local judiciary or of the host country. Indeed, in the months since September 11, 2001, the United States government has retrieved a number of individuals from lawless locales of this sort. See, e.g., Al Odah v. United States, 321 F.3d 1134 (D.C.Cir.2003). Therefore, the statutory authorization to make arrests overseas for violations of ex-traterritorially applicable law runs contrary to an alleged prohibition on trans-border arrests.

It is true that in a number of other cases dealing with transborder arrests, the nation in which the arrest occurred did not object, even if it did not cooperate. While Mexico, by contrast, clearly and consistently protested Alvarez’s seizure, it does not follow that the United States was obliged to comply with the processes of Mexico’s judicial system.

One highly visible abduction, that like the case at hand also involved the extraterritorial enforcement of our nation’s drug laws, refutes the notion that the United States has somehow divested itself of the authority to engage in transborder arrest *653without the consent of the host country. United States v. Noriega, 117 F.3d 1206 (11th Cir.1997), of course, dealt with the arrest of Panama’s former strongman on drug-related charges. Id. at 1209-10.11 Noriega was functioning “as the defacto, if not the de jure, leader of Panama” when the American military incursion to seize him occurred. Id. at 1211. Surely any protest from a Panamanian government controlled by Noriega himself could be disregarded, could it not, particularly if, as a matter of law, Noriega had forfeited his head-of-state immunity? See id. at 1212. Moreover — and herein lies the rub — the United States had consistently refused to acknowledge the legitimacy of Noriega’s rule from its inception, which was after his indictment but well before the effort to retrieve him was ordered. Id. at 1209-10.

Therefore, irrespective of what various international law scholars and others may deem as advisable policy, these ruminations are of little consequence under the ATCA when the political branches of the United States have firmly decided on a course of action. Examining the relevant statutes, the actions of the political branches in other circumstances, and as discussed by the majority, the manner in which the President and the Senate have exercised the treaty power in this area, see supra at 618-619, leads to only one conclusion: The United States does not, as a matter of law, consider itself forbidden by the law of nations to engage in extraterritorial arrest, but reserves the right to use this practice when necessary to enforce its criminal laws.12

*654III

If the majority had merely denied Alvarez’s claims based on its exposition of international mores, I would be troubled by its failure to engage in a review of both the history behind the ATCA and the manner in which the political branches have exercised the option of transborder arrest in varied circumstances. But at least I would feel secure that we as judges had not improperly encroached upon the duties reserved for the political branches in formulating our nation’s foreign policy. Most regrettably, by providing relief to Alvarez on his claim of prolonged arbitrary arrest, our court has in effect restricted the authority of our political branches, and it has done so in a way that finds no basis in our law.

A

The parties do not dispute that the prohibition on prolonged arbitrary detention is actionable under the ATCA. See Martinez, 141 F.3d at 1383-84. Nevertheless, the question remains whether the prohibition was violated in this case.

B

Notwithstanding its express recognition that the criminal statutes covering kidnap-ing, felony murder, and the other crimes involved in this case extend to conduct outside of the borders of the United States, the majority deems the government’s action as “arbitrary.”

The majority, although not expressly stating it as such, seems most troubled by the lack of Mexican authority for Alvarez’s arrest. Indeed, imagine that the DEA had communicated with the Mexican government prior to seizing Alvarez and that such dialogue led to Mexican authorities assisting in the arrest, or acknowledging consent to the DEA’s actions in some other manner. Under the majority’s proffered approach the United States would be forced to compensate an alleged foreign-national criminal for “arbitrary arrest” within the meaning of the law of nations merely because the “wrong” Executive agency spearheaded the operation.

If Mexico had indeed sanctioned its actions, our court would not be subjecting the DEA to liability for successfully negotiating via diplomatic means the capture of a wanted criminal. Or would it? This simple hypothetical, however, underscores the fallacy of the majority’s approach. Whether the United States procured an arrest warrant through the Mexican judiciary should not affect our analysis, because the availability of local process is extremely sensitive, bound up with important foreign policy considerations that are confided to the political branches in general and to the Executive in particular. In*655deed, the majority elsewhere recognizes that “an individual’s right to be free from transborder abductions has not reached a status of international accord sufficiently to render it ‘obligatory’ or ‘universal,’ [and therefore] cannot qualify as an actionable norm under the ATCA.” Supra at 620.

Nevertheless, seemingly under the majority’s approach, such extraterritorial arrest authority may still be subject to a requirement that any agents exercising it on foreign soil — as opposed to the high seas, as was the case in Chen, 2 F.3d at 332 — obtain the consent or assistance of the host country. The majority, in a rare moment of restraint, does recognize the “powers of the political branches to override the principles of sovereignty in some circumstances, should the need arise.” Supra at 629 (emphasis added). However, the “need” to engage in transborder arrest without the prior consent of a foreign nation should appropriately be left to the discretion of the political branches.

Indeed, the federal courts are not charged with determining the legitimacy of another nation’s government. Yet this is essentially what the majority would have us do. Under its approach, the United States would have departed from the ostensibly black-and-white approach that sanctions transborder arrests when employed by our nation’s political branches. In its place, a decision to make a trans-border arrest would only be permissible when the host country’s system of government absolutely requires it, as determined by this country’s courts through the medium of ATCA litigation. As judges, we would have to determine whether a nation’s courts are open and functioning; whether it has a legitimate government that can be consulted for permission to seize a suspect; if there are multiple contenders, see, e.g., Noriega, 117 F.3d at 1209-10, to which one such a request must be addressed; and so on. Courts are quite unsuited to undertake such analyses, and, indeed, to do so would bring us perilously close to trenching on the power of diplomatic recognition that Article II, Section 3 places at the core of the Executive’s foreign affairs authority. See, e.g., Guaranty Trust Co. v. United States, 304 U.S. 126, 137-38, 58 S.Ct. 785, 82 L.Ed. 1224 (1938); Oetjen, 246 U.S. at 302-03, 38 S.Ct. 309.

I am simply not prepared to declare that Congress intended that any alien charged with a crime, under extraterritorially applicable U.S. criminal law, could remain in a country that refuses extradition. Congress has authorized the arrest, without warrant, of aliens for whom there is probable cause to suspect violation of an extra-territorially applicable statute. In so doing, Congress has left to the Executive, which already possesses the general responsibility for deciding both when and whether to arrest and to prosecute and how best to conduct the nation’s foreign relations, the burden of determining when the national interest requires bypassing diplomatic channels to secure such arrest. As the Supreme Court has held in another context, “Situations threatening to important American interests may arise halfway around the globe, situations which in the view of the political branches of our Government require an American response with armed force. If there are to be restrictions on^searches and seizures which occur incident to such American action, they must be imposed by the political branches through diplomatic understanding, treaty, or legislation.” United States v. Verdugo-Urquidez, 494 U.S. 259, 275, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990).

C

Turning now to its proffered reason for granting Alvarez redress under the ATCA, *656the majority claims there was “no basis [under United States] law for the DEA’s actions.” Supra at 631.

1

The majority reaches this extraordinary result even though it concedes that the United States has reserved for itself the authority to arrest criminals and terrorists abroad as a valid law enforcement technique, and that Congress has explicitly extended the reach of criminal statutes for which Alvarez was charged to apply to conduct outside of the nation’s borders. Even more astonishing is that the majority bases its holding on the premise that the DEA’s actions were “arbitrary” within the meaning of the law of nations because they were beyond the scope of authority conferred by Congress.

In this case, Alvarez was arrested pursuant to an American warrant, issued following his indictment by a federal grand jury on felony charges. He was held overnight and then brought to the United States, where he was promptly placed in federal custody and was arraigned as soon as his medical condition permitted. The majority fails to explain adequately how an arrest supported by probable cause and ordered by a warrant, leading to a brief period of confinement before transfer to custody on American soil with all its attendant legal process, rises to the level of arbitrary detention merely because a parallel warrant was not obtained from the harboring state.

This view does not necessarily render such a seizure legal in every respect; we are limited here to the question whether the arrestee can recover in tort under the Alien Tort Claims Act, which presupposes a violation of the law of nations.13 Whatever false arrest claim Alvarez might have, he has not stated a violation of the law of nations to which we adhere.

2

In any event, contrary to the majority’s surmise, the DEA was well within its delegated powers when arresting Alvarez. The relevant statutory provisions confer on DEA agents the authority to “make arrests ... for any felony, cognizable under the laws of United States” and the added authority to “perform such other law enforcement duties as the Attorney General may designate.” 21 U.S.C. § 878(a) (emphasis added). Because it is undisputed that Congress has authorized the extraterritorial application of the criminal statutes for which Alvarez was charged, see supra at 624, this broad legislative delegation of enforcement powers to the DEA would seemingly sanction the extraterritorial arrests at issue in this case.

Nevertheless the majority would narrow this broad delegation of enforcement power and restrict the DEA’s authority to engage in transborder arrests because it *657concludes that it would be “anomalous” for Congress to confer a similar degree of authority to “any State or local law enforcement officer designated by the Attorney General.” Supra at 626-627. However, there is nothing “anomalous” about the legislative branch delegating to the Attorney General to determine in his best judgment whether non-federal law enforcement agents can aid in the application and enforcement of this nation’s criminal laws extraterritorially. Instead, Congress engaged in such a broad delegation of law enforcement authority to the DEA and to the Attorney General in order to allow the Executive branch to have the widest array of enforcement options at its disposal.

In addition to the clear language of 21 U.S.C. § 878(a), this court’s statutory interpretation is guided by the Supreme Court’s recognition that “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Furthermore, “[djelegation of foreign affairs authority is given even broader deference than in the domestic area.” Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1438 (9th Cir.1996). “Congress—in giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than it customarily wields in domestic areas.” Id. (quoting Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965)).

Nevertheless, the majority claims there is an utter void of authority for the DEA’s actions. The majority is undeterred by the fact that Congress has authorized the extraterritorial application of the criminal statutes involved in this case and has delegated broad powers of enforcement to the DEA “for any felony, cognizable under the laws of the United States.” The majority’s holding flies in the face of the clear statutory language enacted by Congress as well as the principle of statutory construction that delegations to the Executive branch are entitled to greater judicial deference in matters involving politically sensitive foreign affairs.

Furthermore the majority’s approach leads unavoidably to the following question: if Congress through enactment of 21 U.S.C. § 878(a) has not in fact authorized the DEA and Attorney General to enforce extraterritorially the criminal laws for which Alvarez was charged, to whom exactly has Congress delegated this enforcement authority? By extending the reach of our criminal laws to apply to conduct outside of the nation’s borders, Congress must have intended to have the laws enforced by some member of the Executive branch.14

*658Under the majority’s approach, this nation would be left to the whims of foreign countries in enforcing its laws because Congress, in delegating broad law enforcement powers to the Executive branch, did not redundantly recite that extraterritorial enforcement is to be included.15

3

Both the statutory structure and our own precedent indicate that the criminal provisions in question apply extraterritorially. Correspondingly, the statutes and precedent also indicate that Congress has authorized their extraterritorial enforcement. Under such circumstances, we are not free to conclude that the political branches have bound themselves — or, to be more precise, have bound the Executive — to the mast. And the prospect of international opprobrium is not sufficient for us as judges to impose a constraint the political branches have not.16

IV

Dr. Alvarez’s capture and delivery to the United States may have offended the sensibilities of some members of our court. As a matter of public policy, such actions may even be worthy of the condemnation that certain pundits and foreign countries, as cited by the majority, have bestowed. But we are not asked in this case to condemn or to condone the federal government’s actions; we are asked to compensate Dr. Alvarez in tort under the law of nations. The decision to exercise the option of transborder arrest as a tool of national security and federal law enforcement is for the political branches to make. They, unlike the courts, may be held accountable for any whirlwind that they, and the nation, may reap because of their actions. By its judicial overreaching, the majority has needlessly shackled the efforts of our political branches in dealing *659with complex and sensitive issues of national security. After today’s ruling, if the political branches are intent on protecting the security interests of our nation by arresting and prosecuting those who would do the country harm, Congress and the President should also ensure that the United States Treasury is well-stocked to compensate the captured miscreants.

. Perhaps cognizant that its analysis cannot bear its own weight if applied more broadly, the majority recites that we need not worry because its holding "is a limited one.” Supra at 608. Count me, however, among those unassuaged by the majority's assurances. I believe that impermissibly encroaching upon the duties rightfully reserved to the political branches is of serious consequence, and unfortunately such encroachment establishes a very troubling precedent which we will regret. Indeed, the majority’s attempt to distinguish the circumstances of this case from other overseas operations conducted by our nation’s military and law enforcement personnel may not prove to be so facile. One of the many vexing questions implicated by its opinion, but left unanswered by the majority, is what are we to make of sub-agencies within the Department of Homeland Security, as well as the Federal Bureau of Investigation ("FBI”), the Drug Enforcement Administration ("DEA”), the Bureau of Alcohol, Tobacco, and Firearms ("ATF”), and other law enforcement agents who aid and assist in the war against terrorism and efforts to protect homeland security by capturing known terrorists and criminals in foreign locales across the globe? Unless the majority believes that every use of transborder arrest by the Executive branch falls within "its power to detain under the war powers of Article II,” supra at 609 (quoting Hamdi v. Rumsfeld, 316 F.3d 450, 473 (4th Cir.2003))—which is obviously not the case—no rational observer can honestly *646say that our court's holding today "is a limited one.”

. As an initial matter, I am sympathetic with many of the separation of powers concerns expressed in Judge Gould’s separate dissent. Indeed, I share a similar apprehension that the majority’s approach could have dire consequences if applied to our nation’s current military and law enforcement operations overseas.

However, interestingly enough, the government, neither in its brief on cross-appeal nor its amicus brief, argued for the applicability of the political question doctrine. In any event, under our precedent, I believe that Alvarez, while not entitled to relief, has stated a justiciable claim under the ATCA.

. I agree with the majority that Alvarez lacks standing to obtain redress under the ATCA for Sosa’s and the DEA agents’ alleged infraction against Mexican sovereignty; state-on-state injuries like the one Alvarez alleges here are singularly inappropriate for assertion of third-party rights by foreign citizens.

Moreover, I agree with the majority that Alvarez's claim for transborder abduction must fail. However, because the majority reaches this result in a rather circuitous manner, I write separately on this issue to underscore that the United States has neither acquiesced in, nor considers itself bound by, any supposed norm against transborder arrest.

. The other was the Act’s apparent provision for general alienage diversity jurisdiction, rather than jurisdiction only over controversies between aliens and U.S. states or citizens, as specified in Article III, Section 2. Currie, supra, at 51. The Supreme Court subsequently construed the statute's reference to suits “where an alien is a party” to comprehend only suits "between citizens and foreigners,” to conform to the Article III grant. Mossman v. Higginson, 4 U.S. (4 Dall.) 12, 14, 1 L.Ed. 720 (1800) (emphasis omitted).

. Of the elements required for an actionable norm under the ATCA, "specificity” is, appropriately, the clearest of the three. International law from the time of the ATCA’s enactment has been somewhat inchoate, and as the number of international agreements, conventions, and organizations has grown, discerning the substance of the law of nations has required rather more than reading the works of Pufendorf, Burlmaqui, and Vattel with which members of the First Congress were presumably familiar. Moreover, the international community whose customs' and practices define the law of nations has become *648larger and more diverse. It is not surprising, therefore, that frequently the propositions capable of attracting the broadest support are also the most diffuse (and thus the least likely to offend). Yet much diplomatic gloss, though possessing great virtue for its significance to the development of the law of nations in the broadest sense, provides no suitable basis for tort litigation.

A "specific” norm, therefore, is one sufficiently "'definable,'" Marcos II, 25 F.3d at 1475 (quoting with approval Forti v. Suarez-Mason, 672 F.Supp. 1531, 1539-40 (N.D.Cal.1987)), such that its violation can be objectively ascertained. To be sure, the nations of the world need not have commonly agreed upon an exhaustive catalogue of every variation, but the norm itself must have become "clear and unambiguous.” Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 819-20 (D.C.Cir.1984) (Bork, J., concurring) (quoting Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir.1980)) (internal quotation marks omitted).

. Of course, accepting this principle still leaves open the question of how that responsibility should be allocated between the political branches. For present purposes, it is sufficient to say that whatever degree of responsibility the President enjoys vis-á-vis Congress, the political branches collectively enjoy primacy over the judiciary in the management of our foreign relations.

. See, e.g., Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1568 (1984) ("[E]very State has the power — I do not say the legal right. — to denounce or breach its treaties, or to violate obligations of customary international law.” "[I]t is inconceivable that the Constitution intended to make it impossible or impermissible — unconstitutional—for the United States to violate a treaty or other international obligation.”). One of the handful of cases sustaining ATCA jurisdiction, Bolchos v. Darrel, 3 F.Cas. 810 (D.S.C.1795) (No. 1,607), likewise recognizes the power to depart from the law of nations. See id. at 811 ("It is certain that the law of nations would adjudge neutral property, thus circumstanced, to be restored to its neutral owner; but the ... treaty with France alters that law....”). Although the law of nations did not favor the libelant, the Bolchos court found in his favor nonetheless because jurisdiction was proper under the ATCA’s treaty provision and because the treaty in question conferred an enforceable right to sue. See id. Despite Bolchosis distasteful subject matter — the action was for recovery of a cargo of slaves — the opinion offers some insight into contemporaneous understanding of the law of nations as enforced by the ATCA.

. The final requirement under our law is that an actionable norm be "obligatory.” Our cases have used this term to mean "binding” rather than merely "hortatory.” Marcos II, 25 F.3d at 1475 (quoting with approval Forti, 672 F.Supp. at 1539-40). Binding norms “confer[ ] fundamental rights upon all people vis-a-vis their own governments.” Id. at 1475-76 (quoting Filartiga, 630 F.2d at 885) (alteration in original) (internal quotation marks omitted). Sosa and the DEA agents argue that the class of obligatory norms is further restricted to those that are obligatory in the literal sense, i.e., those that nation-states must obey. In the parlance of international law, such a norm falls under the heading of jus cogens.

This argument is not without support in the case law. Courts applying Marcos II's tripartite standard have debated whether the only "obligatory” norms whose violation is actionable under the ATCA are those that have attained jus cogens status, and indeed, some have adopted the position that the defendants urge. Compare, e.g., Nat'l Coalition Gov't of the Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 345 (C.D.Cal.1997) ("[A] foreign sovereign’s expropriation of its national's property does not constitute a jus cogens violation of the law of nations and, therefore, is not cognizable under § 1350.”), Xuncax v. Gramajo, 886 F.Supp. 162, 184 (D.Mass.1995) ("These qualifications essentially require that ... the prohibition against [the act in question be] non-derogable and therefore binding at all times upon all actors.”), and Beanal v. Freeport-McMoRan Copper & Gold, Inc., 969 F.Supp. 362, 370 (E.D.La.1997) (citing Xuncax), aff'd, 197 F.3d 161 (5th Cir.1999), with Doe v. Unocal Corp., 110 F.Supp.2d 1294, 1304 (C.D.Cal.2000) ("While the Ninth Circuit has not expressly held that only jus cogen [sic] norms are actionable, the Circuit's holding in Estate II that actionable violations are only those that are specific, universal, and obligatory is consistent with this interpretation.”), and In re World War II Era Japanese Forced Labor Litig., 164 F.Supp.2d 1160, 1179 (N.D.Cal.2001) ("It remains unclear, however, whether all jus cogens norms meet the *651'specific, universal and obligatory standard’ required to be actionable under section 1350.”), with Mehinovic v. Vuckovic, 198 F.Supp.2d 1322, 1344 (N.D.Ga.2002) ("A jus cogens violation satisfies, but is not required, to meet [the’specific, universal, and obligatory’] standard.”).

However, we need not decide whether the term "obligatory” necessarily means that a jus cogens norm is required. Our prior cases have left this question open. And despite the majority's assertion to the contrary, this case does not require us to pronounce definitively on the relevance of the distinction between jus cogens and mere customary international law. If Alvarez in fact alleges violations of a jus cogens norm, as did the plaintiffs in the Marcos litigation, or if he alleges violations of a derogable norm to which the United States does not subscribe, we may bypass the significance of jus cogens status. The distinction would be significant only if Alvarez alleges violations of a norm that is recognized by the United States — -and therefore incorporated into the federal common law — but lacks the universal acceptance within the international community that is the sine qua non of a jus cogens norm.

. A 1994 amendment added a second "p” to the term, which now lists the crime as "kidnapping.”

. She had in turn delegated that authority to the Commissioner of Immigration and Naturalization, who in turn delegated it to rank- and-file INS agents. Chen, 2 F.3d at 334 (citing 8 C.F.R. § 2.1 (1991)).

. For purposes of further illustration, I refer to the recent case of Kasi v. Angelone, 300 F.3d 487 (4th Cir.2002). Mir Aimal Kasi on the morning of January 25, 1993, stopped his automobile behind a line of automobiles outside of CIA headquarters in Fairfax County, Virginia, emerged from his vehicle, and opened fire on the other drivers with an AK-47 assault rifle. Two CIA employees were killed, and three other employees were wounded. Kasi fled to his home country of Pakistan the day after the shootings in order to avoid arrest. On February 16, 1993, Kasi was indicted for the various crimes that he had committed. For the next four and one-half years, Kasi remained at-large, traveling in Afghanistan and returning to Pakistan only for brief visits. Then, on June 15, 1997, FBI agents located and abducted Kasi from a hotel in Pakistan. Two days later, Kasi was transported back to Fairfax Country, Virginia and handed over to state authorities for prosecution. Kasi was eventually convicted and sentenced to death for his crimes. In response, therefore, to the majority’s assertion that not "every executive branch decision to breach an international norm translates into a more global repudiation of that norm,” supra at 620 n. 15, Kasi, Noriega, and Chen, as well as the recent capture of terrorists all across the globe, see, e.g., Al Odah v. United States, 321 F.3d 1134 (D.C.Cir.2003), are merely a few examples that demonstrate the consistent refusal of the political branches of this nation’s government to adhere to a prohibition against transborder arrests. Consequently, the ATCA should provide no monetary relief to those criminals and terrorists captured pursuant to this valid tool of national security.

. Because the prohibition on transborder arrest is not accepted by the United States and thus is not actionable under the ATCA, it is unnecessary to consider whether, as Sosa and the DEA agents urge, it is not actionable for the additional reason that it does not rise to the level of jus cogens.

However, it should be noted that no court, convention, declaration, or authority such as the Restatement has identified transborder abduction as a jus cogens norm. Rather Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), Alvarez-Machain II, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), and United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) indicate the opposite. See United States v. Matta-Ballesteros, 71 F.3d 754, 763 n. 5 (9th Cir.1995) (kidnaping does not violate recognized constitutional or statutory provisions in light of Alvarez-Machain II, and also does not qualify as a jus cogens norm such that its commission would be justiciable in our courts *654even absent a domestic law). Indeed, on remand in this case, we made it clear that there was no due process violation — put differently, that kidnaping isn’t shocking — because it cannot be so fundamental as to constitute a jus cogens norm. Alvarez-Machain III, 107 F.3d 696, 702 (9th Cir.1997).

The Restatement, for example, has identified only torture, genocide, slavery, murder, prolonged arbitrary detention, and systematic racial discrimination. Neither do the conventions and declarations upon which Alvarez relies establish universal acceptance. The International Covenant on Civil and Political Rights was signed and ratified in 1992 but with the understanding by the Senate and Executive Branch that Articles 9 and 10 are not self-executing and may not be relied on by individuals; the American Convention on Human Rights has not been ratified; the Universal Declaration of Human Rights and the American Declaration of the Rights and Duties of Man are not binding legal obligations. None prohibits forcible abduction. Nor does it suffice to rely on general principles such as "rights to freedom of movement, to remain in one’s country, and security in one’s person.”

. It is important to note that Alvarez did bring a number of other claims which, if proven, might well have been cognizable— under the ATCA or otherwise. He alleged that he suffered cruel and degrading treatment, that he was subjected to assault and battery, that his captors had intentionally inflicted emotional distress. The district court took several of these claims to trial and resolved each of them in Sosa’s favor, finding that Alvarez was not credible. The only ATCA claims that survived for appeal were those relating to the undisputed fact of Alvarez's seizure, not his allegations of abuse, torture, or mistreatment. But in the appeal before us, it is clear that the mere fact of a transborder arrest without the host country’s consent is not actionable under the ATCA, absent a substantiated claim of mistreatment that independently violates aspects of the law of nations that the United States recognizes.

. In a separate concurrence, Judge Fisher seemingly concedes that Congress has authorized the Executive branch to engage in extraterritorial law enforcement activities, but nonetheless divines that such decisions have to be made by the “President, the Attorney General, the Secretary of State, perhaps the Secretary of Defense, the National Security Advisor.” Supra at 642 (Fisher, J., concurring). However, in matters of foreign affairs, nation-states are often intentionally guarded as to precisely which government officials authorize and possess knowledge of covert operations. Furthermore, regardless of whether it is desirable public policy to require high-ranking officials to admit their participation in complex international operations in order to shield the United States and its "sub-Cabinet-level enforcement officials” from liability under the ATCA, there is simply no basis in the Constitution, existing statutes, or our case law for such a legal conclusion.

Judge Fisher tries to find support for his position from a 1989 advisory opinion issued by an attorney in the Department of Justice’s Office of Legal Counsel. This advisory opinion expressly recognized the authority of the Attorney General to depart from the norms of international law in the course of law enforce*658ment activities, even without the approval of the President. The opinion then "recommend[s], however, that the Attorney General [not] delegate the authority to more subordinate officials.” Supra at 642 (Fisher, J., concurring).

As a matter of public policy, this advisory opinion may be of interest to show how the Executive branch might exercise the discretion conferred to it by Congress to engage in extraterritorial law enforcement activities. But such an advisory opinion, of course, neither constitutes binding law nor justifies the newly minted judicial constraints proposed by Judge Fisher to be imposed upon the Executive branch for conducting foreign affairs.

. While today's holding may seem innocuous with regard to Mexico, "an important ally and trading partner,” the current war on terror in Afghanistan and in other countries, Kasi, and Noriega are but a few examples that illustrate that such an approach would unduly interfere with the Executive branch's ability to carry out its prescribed duties regarding law enforcement and national security.

. The majority also concludes, as to Alvarez's Federal Tort Claims Act ("FTCA”) claims, that the DEA agents authorized a false arrest against Alvarez. That Congress intended several of the federal statutes that Alvarez was charged with violating to be both applicable and enforceable beyond the borders of the United States, effectively begins and ends this inquiry. The federal officers were authorized by statute to make warrantless arrests. And the provision in Rule 4(d)(2) of the Federal Rules of Criminal procedure that a "warrant may be executed ... at any place within the jurisdiction of the United States” — a provision that, when adopted, was intended to broaden the territorial scope of a federal court's power to issue process, see Fed.R.Crim.P. 4 advisory committee’s note — does not preclude federal authorities from obtaining an arrest outside the United States when Congress has authorized them to enforce an extraterritorially applicable statute beyond the national borders.

In light of the statutory authority under which the agents secured Alvarez's arrest in Mexico, the contention that their action was compensable in tort under the FTCA must fail. The district court did not err in granting summary judgment to the United States on the FTCA claims.