The Supreme Court Confronts the Alien Tort Claims Act:
Should the Court Gut the Law, as the Administration Suggests?

On March 30, in the case of Sosa v. Alvarez-Machain, the Supreme Court will hear oral argument on an important issue: Whether the scope of the Alien Tort Claims Act ("ATCA") should be severely limited.

The ATCA authorizes foreign individuals to bring certain tort suits in the federal courts of the United States. Over the past 24 years, it has been used to promote human rights.

In the Alvarez-Machain case, however, the Bush Administration is arguing that the Court should drastically change the way we currently understand the ATCA. The Court should not take the bait -- and it need not.

Indeed, as I will argue in this column, the Bush administration's immediate concerns can very probably be addressed without gutting the ATCA.

Before addressing the ATCA lawsuit at issue in the Alvarez-Machain case, it's necessary to first set out some background facts.

In 1985, in Mexico, an American DEA agent in Mexico was tortured and murdered by members of a Mexican drug cartel. American prosecutors believed that Dr. Humberto Alvarez-Machain kept the agent alive in order to either to get more information or to prolong his agony.

Accordingly, they procured an indictment against Dr. Alvarez-Machain (in absentia) from a Los Angeles grand jury. Then, they tried to get Mexico to extradite him. But their attempts were unsuccessful.

The Deputy Administrator of the DEA therefore authorized a plan: Mexican nationals would kidnap Dr. Alvarez-Machain in Mexico. Then they would have him brought across the U.S. border, where he would be arrested by U.S. officials.

The plan was carried out, with the Mexican nationals including a man named Jose Francisco Sosa. Dr. Alvarez-Machain -- who suffered no violence, but was held incommunicado for 24 hours before being handed over to American law enforcement -- was then tried in Los Angeles.

At trial, Dr. Alvarez-Machain was acquitted. Indeed, the trial judge dismissed the case, finding the evidence against Dr. Alvarez-Machain speculative and unreliable.

Once back in Mexico, Alvarez-Machain sued the U.S., the DEA agents and the Mexican nationals who kidnapped him, including Sosa. But only the suit against Sosa was allowed to go forward.

After a trial, a jury in Los Angeles awarded Alvarez-Machain $25,000 in damages for emotional distress.

The Alien Tort Claims Act (ATCA), part of American law since 1789, grants the federal district courts "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."

Until 1980 the ATCA was very rarely used. But that year, in the decision of the U.S. Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala, and in other decisions that followed, the ATCA was interpreted in a more expansive way.

Since 1980, the law has been held to apply to human rights violations by agents of foreign nations occurring outside the United States. It has also been held to apply to violations of certain core principles of human rights -- principles that are considered part of customary international law -- by private individuals and corporations.

In the case currently before the Court, Sosa seeks to turn back the clock to the pre-1980 ATCA -- and the Bush administration has filed a brief in support of his position.

First, Sosa, and the Department of Justice, argued that the ATCA does not authorize tort actions. Instead, they say, it is merely a grant of jurisdiction -- a grant that has to filled in by separate Congressional legislation, before suits can be brought.

This argument is incredible for two reasons. First, this argument contradicts the plain text of the statute, which says (as quoted above) that aliens can bring a "civil action" for "a tort." The Bush Justice Department has so often allied itself with "textualist" approaches to constitutional and statutory interpretation, that it is very surprising to see it depart so drastically from the text here.

Second, this argument contradicts an unbroken line of precedent that stretches back to the early Nineteenth Century. Over the course of almost 200 years, the ATCA has never been considered solely a jurisdictional law.

Is there anything to be said in favor of this argument? Not much.

Sosa points out that the ATCA appears in a part of the Judiciary Act of 1789 that is otherwise purely jurisdictional. This is a very weak structural argument and has been rejected as a canon of statutory interpretation where the text of a law is clear by the Supreme Court in Brotherhood of R.R. Trainman v. Baltimore & Ohio Ry. Co.

Sosa and the Justice Department also make a historical argument. They claim that tort law almost did not "exist" in the 1780's. In addition, they claim that, to the extent it did exist, it dealt only with a narrow range of wrongs, such as trespass and defamation. Hence, they conclude, it would have been impossible for the Congress to have created a tort cause of action for wrongs arising from the law of nations (such as rules governing safe-conduct, ambassadors, and piracy).

As a matter of history, that is incorrect. Even in the Eighteenth Century, the word "torts" was certainly used to refer to civil wrongs redressed through private law.

And as a matter of logic, that is simply weird. Suppose that, indeed, the Founding generation never contemplated that a tort suit could be based on a law of nations violation. Then why in the world would they have referred, in the ATCA, to a "civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States"?

In sum, for all these reasons, the argument that the ATCA -- despite almost 200 years of an understanding to the contrary -- is merely jurisdictional should be quickly rejected by the Court.

The Justice Department's other argument, however, is weightier. Its brief stresses that the ATCA risks undermining the President's conduct of foreign policy -- and thus violates the separation of powers. And that implies, in turn, that even if the ATCA does indeed create a cause of action for human rights violations, it should be read narrowly so as to avoid conflict with other core constitutional values.

At first glance, the Alvarez-Machain case might seem to raise this very issue. After all, Sosa was acting on behalf of the U.S. Government. - although it is not clear whether he was technically an agent of the United States. Then later, he was sued in U.S. court for the same actions.

But for this reason, the Alvarez-Machain case is a very unusual ATCA action. Since 1985, most ATCA suits have been brought against human rights violators from other countries. And most have targeted conduct that our nation -- far from authorizing -- rightly opposed, such as genocide and slavery.

Accordingly, Alvarez-Machain is a terrible test case for the ATCA as a whole. However, it raises its own unique issue: Why is the United States hiring people like Sosa to commit human rights abuses?

Suppose the U.S. has good reasons (such as national security) to hire agents such as Sosa. Then current law should openly and honestly shield people like Sosa from any kind of prosecution, including the ATCA. Our statutory and administrative law has numerous protections for individuals who are clearly acting either as agents of the United States, or under the clear direction of the Executive. And if current federal law is insufficient, then new immunity laws should be drafted by Congress.

But suppose, on the other hand, the U.S. has no good reason to protect Sosa. In that event, there is no reason to blame the ATCA if he is sued.

The Alvarez-Machain case, then, raises an especially pointed case of interbranch conflict: Congress has authorized, in the ATCA, a suit against an authorized agent of the Executive, acting abroad. But most ATCA cases raise no such conflict.

Granted, foreign governments do not like the ATCA and would like to see its scope reduced. And in that sense, the statute has created some international friction, and some interbranch friction as well: Cases in the courts, authorized by Congress's statute, may be in some tension with Presidential policy.

The South African government, for example, has protested efforts by plaintiffs' attorneys in the United States to bring suits against multinational corporations for their historical involvement in apartheid. The current, post-apartheid South African prefers the "truth and reconciliation" approach it adopted, and fears that multibillion-dollar ATCA suits would only hurt investment by multinationals.

Still, the ATCA says what it says -- and it's up to Congress to change it. Moreover, concerns about the ATCA's deterring foreign investment by multinationals may be overstated. So far, the federal courts have been cautious about extending the reach of the ATCA too deeply into corporate liability.

For instance, consider the 2003 decision by the U.S. Court of Appeals for the Second Circuit in Flores v. Southern Peru Copper Corp. There, the Second Circuit properly sent an ATCA suit relating to the environmental effects of a Peruvian mining operation back to the Peruvian courts.

It may be the case that ATCA could be improved. But that is not the job of the Supreme Court--it is the job of the Congress. The ATCA means exactly what it says, and if the Bush administration doesn't like it, it should explain to the American people--not the Supreme Court--why it should be changed.

And in any event, Sosa is a terrible case in which to think about the real dangers the ATCA may pose to our allies. As even the Justice Department brief admits, the only sovereign with an interest in blocking Alvarez-Machain's lawsuit is the United States. In the eyes of the Mexican government, Sosa was a common criminal.