In 1985, a Drug Enforcement Administration (DEA) agent working in Mexico was captured, tortured, and interrogated for two days, and then executed. Dr. Humberto Alvarez-Machain was among the Mexican nationals accused of participating in this heinous crime. Federal prosecutors alleged Alvarez-Machain facilitated the interrogation by keeping the agent alive while his captors tortured him.
After Alvarez-Machain’s indictment in 1990, the DEA unsuccessfully sought his extradition by the Mexican government. When negotiations failed, the federal agency adopted a less conventional strategy. The DEA hired several Mexican nationals to apprehend Alvarez-Machain and bring him to the United States so he could be arrested by American law enforcement and tried in federal court.
After his capture, Alvarez-Machain sought to dismiss the indictment on the grounds that his abduction was illegal, but this claim was ultimately rejected by the U.S. Supreme Court. Nonetheless, Alvarez-Machain was acquitted in 1992. Upon returning to Mexico, Alvarez-Machain returned fire by filing a civil suit in U.S. federal court against those responsible for his abduction, including several Mexican nationals, four DEA agents, and the United States.
It’s not every day that U.S. federal courts hear cases involving allegedly torturous acts committed by foreign nationals against other foreign nationals in another country. But Alvarez-Machain claimed federal courts could hear his case under the Alien Tort Statute (ATS), otherwise known as the Alien Tort Claims Act (ATCA). First enacted in 1789, this once obscure provision of the U.S. Code provides federal district courts with jurisdiction over tort claims brought by aliens alleging a “violation of the law of nations or a treaty of the United States.” According to some interpretations, the ATS also has a substantive component, effectively creating an independent cause of action for torturous violations of international law. Alvarez-Machain adopted this latter view, maintaining that his captors violated international-law norms prohibiting kidnapping, arbitrary arrest, and detention, thereby committing a tort “in violation of the law of nations.” On this basis, his attorneys reasoned, he could bring a case against his Mexican abductors in U.S. federal court. A federal judge agreed, awarding Alvarez-Machain summary judgment and $25,000 in damages, and the U.S. Court of Appeals for the Ninth Circuit agreed.
On June 29, the last day of its 2003-04 term, the Supreme Court unanimously rejected Alvarez-Machain’s claim. In Sosa v. Alvarez-Machain, the Court held that the ATS provided an insufficient basis for the suit, even if abducting the doctor from Mexico violated customary norms of international law. The primary opinion, written by Justice David Souter, made clear that only a very limited set of well-established, clearly defined violations of international law can be the basis for ATS suits. At the time the Congress enacted the ATS, this would have included only three crimes: violating safe conduct, infringing the rights of ambassadors, and piracy. As Souter noted, “It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs that was probably on the minds of the men who drafted the ATS with its reference to tort.”
With this language the Souter opinion rejected the claim–put forward by many legal academics and activists–that the ATS authorizes federal courts to hear cases alleging nearly any torturous violation of international law. The mere recitation of principles in various international agreements, United Nations General Assembly resolutions, or conference consensus statements is insufficient basis to establish a claim under the ATS. Only norms of international law “accepted by the civilized world and defined with a specificity comparable” to the three aforementioned offenses recognized in the 18th century will do the trick. Even prohibitions contained in treaties signed and ratified by the United States may be unenforceable without further action by Congress to provide a cause of action in U.S. courts. In Alvarez-Machain’s case, neither the Universal Declaration of Human Rights nor the International Covenant on Civil and Political Rights, which the United States both signed and ratified, was sufficient to create a cause of action for unlawful detention under international law. This is significant because environmental and human-rights activists have launched dozens of suits in recent years against foreign nationals, governments, and multinational corporations alleging violations of international law based on all manner of international legal instruments. In this respect, the decision is quite good.
While the Court properly rejected Alvarez-Machain’s specific claims, it’s possible to see the Court’s opinion as a glass only half full. To the consternation of Justice Scalia, who wrote a partial concurrence joined by Chief Justice Rehnquist and Justice Thomas, the Court stopped well short of foreclosing the use of the ATS to bring suits alleging violations of international law in federal courts without Congress’s explicit okay. To the contrary, rather than shut the door on “independent judicial recognition of actionable international norms,” Souter’s majority opinion explicitly keeps the door “ajar” to future suits, albeit “subject to vigilant doorkeeping” by the federal courts.
As explained by Hofstra University School of Law professor Julian Ku, Souter’s opinion “makes all the right noises about the dangers of unrestrained federal court international lawmaking, but it didn’t take that final step that would have restricted it in any meaningful way.” The Souter opinion acknowledges that “a decision to create a private right of action is one better left to legislative judgment in the great majority of cases,” yet allows federal judges to retain the discretion to recognize such causes of action themselves. In other words, federal courts may recognize novel causes of action alleging violations of international law absent congressional authorization in some limited, and undefined, set of cases. As Justice Scalia observed, by holding this door open for judges to “create rights where Congress has not authorized them to do so, the Court countenances judicial occupation of a domain that belongs to the people’s representatives.” Insofar as judges base such rights on international law, particularly on customary international-law norms or unratified treaties, they risk undermining the constitutional premise that all laws derive their legitimacy from the governed.
While the spirit of Souter’s opinion is quite restrictive, there is little doubt that some lower courts–and many academics–will see the opinion as a green light to keep trying to bring ATS claims for all sorts of alleged international injustices. International-law professors and human-rights activists are already highlighting language in Souter’s opinion that seems to embrace some of the reasoning underlying several lower-court decisions allowing various ATS suits to go forward. The first such suits in federal courts were brought by foreign citizens against foreign officials alleging severe human-rights abuses overseas, such as torture and mass atrocities. More recently, human-rights and environmental activists have brought suits on behalf of foreign nationals against multinational corporations for their alleged complicity in the rights abuses of foreign regimes. In one suit, for example, U.S. plaintiffs’ attorneys are suing corporations that did business with South Africa’s Apartheid government, alleging these companies were complicit in the regime’s human rights abuses–and that only a whopping tort settlement in a U.S. court can right the wrong.
One of the first cases in which we will see the effects of Sosa v. Alvarez-Machain is Doe v. Unocal, currently pending before an en banc panel of the Ninth Circuit. In Doe, attorneys filed suit under the ATS on behalf of Burmese peasants against the Unocal Corporation, alleging the company’s indirect participation in human-rights violations committed by the military in the course of protecting the Yadana pipeline project. Unocal is a minor investor in the project, but it is the only partner subject to the jurisdiction of U.S. courts. Human-rights activists claim Unocal is responsible because it was well aware of the Myanmar military’s record of human-rights abuses. Unocal denies the allegations and proffers evidence that the lawsuit is merely an effort by various activists groups to discourage investment in Myanmar under the current regime.
The Justice Department opposes the Doe suit, on both legal and policy grounds. In a brief submitted to the en banc court, the Justice Department argues that it is for the political branches to determine the proper approach to human-rights abuses in foreign countries. Whether to impose sanctions on foreign governments or otherwise discourage multinational investment overseas–as the U.S. government has in the case of Myanmar–is a policy decision best left to the executive and legislature. Court involvement can only get in the way. Congress never authorized the use of federal courts for such lawsuits, the Justice Department argues, and even if it had, such suits could inhibit the legitimate foreign-policy objectives of the U.S. government.
Even accepting that the claims against the Myanmar military are true, it is not clear why a private company should be held liable for these acts in a U.S. court. Had Unocal not invested in the Yadana project, it is not at all clear that life would be any better for Burmese peasants. If the lawsuit goes forward, and Unocal is exposed to significant liability, it will be less likely to invest in such projects in the future. Even if Unocal emerges victorious in the end, the suit itself will impose tremendous costs, both in terms of money and reputation. For many companies, the mere prospect of ATS suits in federal court could be enough to discourage investment in developing countries with oppressive regimes. In this fashion, ATS could “redline” investment in the parts of the world that need it most, according to one commentator. Setting aside whether it is wise policy to discourage economic investment in such places, it should be clear that federal courts are not the place for this debate.
Doe v. Unocal was argued in 2003, so it is reasonable to suspect that the Ninth Circuit en banc panel has been awaiting the resolution of Sosa v. Alvarez-Machain before deciding the case. The Sosa decision gives some additional ammunition for the government’s position, but it hardly resolves the case. If Doe wins, and the suit is upheld, it will be an early sign that the courts remain open for activist suits against multinationals that do business in the developing world–at least for the time being. Hofstra’s Ku notes that federal-court jurisdiction over such suits is ultimately based upon the Court’s reading of the ATS. Were Congress to amend the statute, perhaps to delineate what suits are and are not subject to federal court jurisdiction, it would settle the matter. Barring a rash of politically inflammatory suits, perhaps such as ATS claims alleging human-rights abuses and other violations of international law in the war on terror, it is unlikely Congress will revisit the ATS any time soon.
Perhaps the most notable aspect of the Sosa decision is the Supreme Court’s inability to accept that there are some cases or controversies in which federal courts should have little say. As Justice Scalia commented in his partial concurrence, the decision is merely the latest example of a “Never Say Never Jurisprudence” in which the Court ignores the implications of its own legal arguments, “wags a finger at the lower courts for going too far, and then–repeating the same formula the ambitious lower courts themselves have used–invites them to try again.” Alvarez-Machain’s claims of kidnapping and unlawful detention may have been insufficient to justify federal-court attention; yet who is to say the next case won’t be any more worthy? While the Supreme Court majority seems loath to foreclose its future participation in contentious policy issues, this is one question on which Congress is definitely allowed the last word–but only if it wants it.
–NRO contributing editor Jonathan H. Adler is an associate professor of law at Case Western Reserve University and a 2004 Julian Simon Fellow at the Property & Environment Research Center in Bozeman, Montana.