The Corner

Re: Rumsfeld’s German Problem

If I may second Andrew, he is entirely right about the Alien Torts Act.  Judge Bork wrote a great op-ed on this for the WSJ back in 2003 (“Judicial Imperialism — There’s one way in which America is as bad as Belgium”); I alsodevoted part of my Feb. 2006 Commentary article (“International Law v. the United States”) to it as well.  For those who may be interested, discussing (among other things) the German suit against Sec’y Rumsfeld against the backdrop of the Constitution’s vesting in Congress (in art. 1, 8) of the power to “define and punish … Offenses against “the Law of Nations, I wrote:

Although recognized by Chief Justice John Marshall in 1815 as a core part of American law, the law of nations was, at the time, of little consequence as a means of imposing extra-national ideas. That is because the first Congress, rather than opening the floodgates to policy-making forays on the part of the judiciary, passed laws criminalizing the very acts that Blackstone had identified as universally condemnable: robbery and murder on the high seas, and assaults against foreign ambassadors. To support these narrow sanctions, Congress added the Alien Tort Statute (ATS), giving federal courts the jurisdiction to entertain civil suits brought by aliens pursuant to claimed violations of the law of nations and treaties alike.

Although ATS was a product of a (happily) bygone era when federal courts were at liberty to invent new protections under the guise of discovering a common law, it lay all but dormant for nearly two centuries after its 1789 enactment. Then, in 1980, the Second Circuit federal-appeals court, in a case with no connection to the United States, resorted to the Alien Tort Statute in granting money damages to the estates of Paraguayan torture victims murdered in Paraguay by a Paraguayan official. The three-judge panel reached this breathtaking result by concluding that the law of nations had somehow been expanded to embrace prohibitions on torture – although neither the U.S. nor Paraguay had ratified any torture treaties at the time.

That was not the worst of it. After all, torture – as our recent national debate illustrates – is broadly reviled and relatively rare. If the courts had only revived a moribund concept for the purpose of imposing international sentiments on something so aberrant and universally condemned, that would be bad practice – usurping a task of legislators – but not a bad result. The appeals court, however, did not leave matters at that. Going well beyond the law of nations, one concurring judge said that, in the future, the Alien Tort Statute could be applied by American courts to extra-national conduct, no matter how remote from American national interests, if, in the view of the federal judges, such conduct transgressed definable, universal, and obligatory norms.  [Emphasis added.]

As surely as night follows day, courts have leaped on this subjective test of their own creation to do subjective justice. In 1995, for example, the Second Circuit forged a civil action for damages under the ATS for victims of genocide – even though, by then, the political branches had implemented an international convention against genocide with legislation expressly stating that no ground for private, civil action was being created. In the meantime, the Ninth Circuit in California discovered a clear and universally recognized norm prohibiting arbitrary arrest and detention. Although the U.S. Supreme Court reversed this decision in a 2004 case, Sosa v. Alvarez-Machain, it simultaneously endorsed the amorphous definable, universal, and obligatory test that had caused the erroneous ruling in the first place. This was a giant step in a highly dangerous direction. As Justice Scalia cautioned in his separate opinion:

The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign’s treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professors and human-rights advocates. . . . The framers would, I am confident, be appalled by the proposition that, for example, the American people’s democratic adoption of the death penalty . . . could be judicially nullified because of the disapproving views of foreigners. [Emphasis in the original.]