Opposition Brief — Sosa v. Alvarez-Machain

(7) [Supreme Cer US |

< FILED

OCT 6 2003

IN THE

Supreme Court of the United States

FRANCISCO SOSA,

Petitioner,

US.

HUMBERTO ALVAREZ-MACHAIN, et al.,

Respondents. |

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

MARK D. ROSENBAUM PAUL L. HOFFMAN

ACLU Foundation of Counsel of Record

Southern California ERWIN CHEMERINSKY

SCHONBRUN, DESIMONE

1616 Beverly Boulevard - :

Les Angles, Callfeeniasenas «2 ena ana—E

. ron

(219) 997-3500 Venice, California 90291

EPSTEIN, ADELSON & RUBIN

RALPH G. STEINHARDT

11755 Wilshire Boulevard George Washington

Fifteenth Floor University Law School

Los Angeles, California 90025 720 20th § Nw

(213) 473-6447 may pnd

Washington, D.C. 20052

(202) 994-5739

Attorneys for Respondent

HUMBERTO ALVAREZ-MACHAIN

Lawyers Brief Service * Appellate Brief Printers * (213) 613-1013 * (949) 720-1510

4D of

No. 03-339

IN THE

Supreme Court of the United States

FRANCISCO SOSA,

Petitioner,

Us.

HUMBERTO ALVAREZ-MACHAIN, et al.,

- Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

MARK D. ROSENBAUM PAUL L. HOFFMAN

ACLU Foundation of Counsel of Record

Southern California ERWIN CHEMERINSKY

: SCHONBRUN, DESIMONE

1616 Beverly Boulevard : .

Los Angeles, California900206 ae . ea

Y ean Front Wa

(20D) 991 Venice, California 90291

EPSTEIN, ADELSON & RUBIN

RALPH G. STEINHARDT

11755 Wilshire Boulevard George Washington

Fifteenth Floor University Law School

Los Angeles, California 90025 790 20th § w

(213) 473-6447 2 20m Street, IW.

Washington, D.C. 20052

(202) 994-5739

. Attorneys for Respondent

HUMBERTO ALVAREZ-MACHAIN

TABLE OF CONTENTS

EE ili

STATEMENT OF THE CASE ..................5:. 2

A. Ce wee eesetees 2

B. cc cksceseencecesccecccecs 5

REASONS FOR DENYING THE WRIT ............. 7

1. The Circuit Courts Have Uniformly

Held that the Alien Tort Claims Act

Provides a Basis for Relief for Torts

Committed in Violation of the Law

EEO 7

A. The Courts Are Not Divided on the

Circumstances Under Which Liability

Under the ATCA Is Appropriate .............. 7

B. The Coherent Jurisprudence of the

Courts Under the ATCA Is Correct as

EES 12

c. The Coherent Jurisprudence of the

Courts Under the ATCA Does Not

Compromise the Ability of the

Political Branches to Conduct

eee eee bneseccncccccccecs 15

iv. Proving the content of custom .........

Il. The Courts Are Not Divided on the

“Proper Reach” of the ATCA: Jus Cogens

Violations Are Sufficient but Not Necessary

to Satisfy the Jurisdictional Requirements

of the Alien Tort Claims Act ................

A. There Is No Split Among the Circuits

On The Necessity Vel Non of a

Jus Cogens Violation under the ATCA ........

B. The Plain Language Of The ATCA

Requires That Plaintiff's Meet the

Exacting Requirements of Proving A

Violation of The Law of Nations, Not

the Extraordinary Requirements of

Proving a Violation of Jus Cogens ...........

Ill. | There Is No Split among the Lower

Courts on the Proposition That

Arbitrary Arrest and Detention

Are Violations of “The Law of

Nations Or a Treaty of the

SEE Sc-aceudecccoesesaccuaceeass

GEES peccvcccccccecoccusecnsscensenes

TABLE OF AUTHORITIES

CASES

Abdullahi v. Pfizer, Inc.,

2002 WL 31082956 (S.D.N.Y., Sept.

SURE: Oududédecdscuccuccoaeeesescesce 19

Abebe-Jira v. Negewo,

72 F.3d 844 (11" Cir.), cert. denied,

re 9,11,19

Al Odah v. United States,

321 F.3d 1134 (D.C. Cir. 2003) ............. 1]

Alvarez-Machain v. United States,

96 F.3d 1246 (9" Cir. 1996), amended by,

107 F.3d 696 (1997), cert. denied,

ee EO an cccesececccceccescess ll

Baker v. Carr,

Pe ee CE oo bctdcnncccccceceseses 16

Beanal v. Freeport-McMoran, Inc.,

197 F.3d 161 (S" Cir. 1999) ........... 9, 11,19

Bigio v. Coca-Cola Co.,

239 F.3d 440 (2d Cir. 2000) ............. 24-25

Bolchos v. Darrel,

3 Fed.Cas. 1810(D.S. Car. 1795) ........... 13

Davis v. Passman,

a En cb bcedcdddedeundecesas 15

De Sanchez v. Banco Central de Nicaragua,

770 F.2d 1395 (5" Cir. 1985) ............... 29

Doe v. Islamic Salvation Front (FIS),

SOC DOs CUED cccccvcccosctes 11

Filartiga v. Pena-Irala,

630 F.2d 876 (2d Cir. 1980) ........... passim

Flores v. Southern Peru Copper Corp,

2003 WL 22038598

(2™ Cir. Aug. 29, 2003) .............. 8, 24, 25

Forti v. Suarez-Mason,

672 F.Supp 1531 (N.D. Cal. 1987) ........ 26, 29

Guinto v. Marcos,

654 F.Supp. 276 (S.D. Cal. 1986) ........ 22, 26

Hilao v. Marcos (In re Estate of Marcos),

25 F.3d 1467 (9" Cir. 1994), cert. denied,

513 U.S. 1126 (1995)..... 9, 11, 12, 13, 19, 22, 25

Hilao v. Estate of Ferdinand Marcos,

103 F.3d 789 (9" Cir. 1996) ............. 25, 26

Iwanowa v. Ford Motor Company,

67 F.Supp.2d 424 (D.N.J. 1999) .......... 10-11

iV

Kadic v. Karadzic,

70 F.3d 232 (2d Cir. 1995), cert. denied,

518 U.S. 1005 (1996) ......... 8, 10, 17, 19, 20, 24

Martinez v. City of Los Angeles,

141 F.3d 1373 (9" Cir. 1998) ....... 9, 25, 26, 29

Papa v. United States,

Be Fe CECE Ge DUE cccccccccccccces 7)

Paul v. Avril,

901 F.Supp. 330 (S.D. Fla. 1994) ............ 29

Sarei v. Rio Tinto PLC,

221 F.Supp.2d 1116(C.D. Cal. 2002) ........ 19

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. 1984) (per curiam)

cert. denied, 470 U.S. 1003 (1985) ..... -11, 12, 18

The Nereide,

13 U.S. (9 Cranch) 388 (1815)............ 15, 21

The Paquete Habana,

175 U.S. 677 (1900) ........... 10, 15, 21, 22, 27

Trajano v. Marcos,

978 F.2d 493 (9" Cir. 1992), cert. denied,

Pe Peet hb cobesecscoccvess 9,11

United States v. Alvarez-Machain,

DP Rc tcccuvesceececsnveceone 5

Vv

United States v. Caro-Quintero,

745 F.Supp. 599 (C.D. Cal. 1990) ........... 26

United States v. Smith,

18 U.S. (S Wheat.) 153 (1820) .............. 21

Wiwa v. Royal Dutch Petroleum Co.,

226 F.3d 88 (2d Cir. 2000), cert. denied,

Be Se Pe GE Sc cbedeeecdceéeccsons 8, 18

Xuncax v. Gramajo,

886 F.Supp. !162(D. Mass. 1995)........ 10, 29

Zapata v. Quinn,

707 F.2d 691 (2d Cir. 1983) (per curiam)....... 8

STATUTES AND REGULATIONS

21 U.S.C.

DOPED. concdecsectveleseccotccesncess 28

28 U.S. C.

PPP rTT TTT TT TT TT TiTTTTeT rT Te 12

PE eassdednccdiccsoescocecveeseds passim

SED cdbkaccccceesesbéseeseens 18

Federal Rules of Criminal Procedure 29 .............. 5

vi

OTHER AUTHORITIES

tT FP jf bs BPPPTTTTerrrrririree 14

1 Op. Att'y Gen. 250 (1907) ........ cece eee eees 14

Committee against Torture, Consideration of

Reports Submitted by States Parties Under

Article 19 of the Convention: United

States of America,

U.N. Doc. CAT/C/28/Add.5 (2000) .......... 16

European Convention for the Protection of

Human Rights and Fundamental Freedoms

signed Nov. 4, 1950, entered into force,

Sept. 3, 1953,

Pe a BE hhc cdbnssdccesccevceseves 29

International Covenant on Civil and Political

Rights, adopted Dec. 16, 1976, G.A.

Res. 2200 (XXI),

21 U.N. GAOR Supp. (No. 16) at 52,

U.N. Doc. A/6316 (1966),

eo each a vee weeueesée es 29

H.R. Rep. No. 367, 102d Cong., 1* Sess.,

fC SSA ae 18

Hearings Before the Subcomm. On Immigration

and Refugee Affairs of the Senate Comm.

on the Judiciary, 101" Cong. 36(1990) ....... 18

Vii

James Kent, Commentaries on American

I a li ad 13

L. Henkin, Foreign Affairs and the

EE? Sciccccetesectaceusesss 13

Restatement (Third) of the Foreign Relations Law

of the United States

Dr steeeitbideduss p4sseeeaksnnes euecees 2

Ds oLctccudieadécesseananedewhues 21, 23

Dt soSduudCunuskteudesededunsestesneees 7

S. Rep. No. 249, 102d Cong., 1* Sess. (1991) ....... 18

DTS CN GD a cc ccccccscdccsccceseuss 1,15

Universal Declaration of Human Rights, adopted

Dec. 10, 1948, G.A. Res. 217A

(III), U.N. Doc. A/810 (1948) ............... 29

William S. Dodge, “The Historical Origins of the

Alien Tort Statute: A Response to the

‘Originalists’,

19 Hastings Int’!| & Comp. L.Rev. 221 (1996) . 14

Vili

October Term, 2003

No. 03-339

Supreme Court of the Jnited States

Francisco Sosa.,

Petitioner,

VS.

Humberto Alvarez-Machain,

Respondent.

RESPONDENT?’S OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

Respondent Humberto Aivarez-Machain submits this

brief in opposition to the petition for a writ of certiorari filed

by petitioner Francisco Sosa. Petitioner, with the support of

_ the United States, seeks review of a well-reasoned, factually

unique ruling by the Ninth Circuit Court of Appeals sitting en

banc, which correctly applied the applicable law upon which

the circuit courts of appeal are not divided. Significantly, the

Court has repeatedly denied certiorari in cases raising the

very issues identified by Petitioner and the Government. The

case presents no “compelling reason” for review under SuP.

CT. R. 10. and is not a suitable vehicle for addressing the

Respondent’s or the Government’s broad concerns.

l

STATEMENT OF THE CASE

A. Introduction

Respondent Humberto Alvarez-Machain opposes the

petition for a writ of certiorari because the decision below is

correct as a matter of law and warrants no further review.

Contrary to Petitioner’s and the Government’s assertions,

there is no split among the circuit courts on any of the issues

presented in the petition.

Enacted in 1789 as part of the First Judiciary Act, the

Alien Tort Claims Act (“ATCA”) provides: “(t]he 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.”’ As shown below,

since Filartiga v. Peria-Irala, 630 F.2d 876 (2d Cir. 1980),

the ATCA has been interpreted to establish subject matter

jurisdiction and a cause of action for serious violations of

international law, including violations of human rights norms.

Congress squarely endorsed Filartiga and extended its reach

from aliens to U.S. citizens in the Torture Victim Protection

Act of 1992 (“TVPA”), 28 U.S.C. § 1350 note, denying in the

' 28 U.S.C. § 1350. The term “law of nations” was used until

the early 20th century in reference to the customary rules and

obligations that regulated interaction between states and

certain aspects of state interaction with individuals. It has

now been supplanted by the term “customary international

law.” RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS

LAW OF THE UNITED STATES § 111 Introductory Note (1987)

(“RESTATEMENT (THIRD)”).

process that a legislative cause of action was required before

ATCA proceedings were appropriate.

Petitioner and the Government stress their concerns

about the use of the ATCA in other contexts, such as

corporate complicity in human rights violations and the war

on terrorism, but these concerns are pretextual. The case

involves no corporate defendant and no issue involving

corporate responsibility. Nor does the case concern the war on

terrorism or any other war. It arises out of the transborder

abduction of a criminal suspect from Mexico to the United

States, authorized and orchestrated by low-level government

officials and carried out by private Mexican citizens who

acted without legal authority. This case does not involve the

authority of the President or cabinet officials to override

international law to protect the national security of the United

States. Nor does it address the authority of any U.S. agency

other than the Drug Enforcement Agency (“DEA”) to engage

in extraterritorial arrests and other law enforcement activities

or anti-terrorist activities. Certainly, if Congress wished to

provide DEA agents with extraterritorial arrest authority, it

could do so. But in the absence of that legislative directive,

this Court can allow the en banc decision of the Ninth Circuit

to stand without compromising the ability of the United States

government to defend itself. The courts have well-developed

doctrines and techniques for screening out frivolous,

vexatious, or politically-charged cases when appropriate.

What is at stake in this case is the rule of law. Basic

principles dating back to the Magna Carta, enshrined in our

Constitution and recognized in international human rights

iaw, prohibit this kind of abuse of official authority, and there

can be little doubt that the decision below was right in finding

abuse on these facts: hiring former police officials in a foreign

country to seize a criminal suspect in the middle of the night

and secretly transporting him hundreds of miles to a foreign

country without any legal authority or authorization

constitutes arbitrary arrest and detention under international

and domestic law. Though the factual setting is unique, it is

unexceptional that the ATCA would be available to enforce

human rights standards with such a distinguished pedigree.

Petitioners’ first question — whether the ATCA

provides a cause of action or is jurisdictional only — raises an

issue which has been raised repeatedly by defendants in

ATCA cases for two decades and which has been rejected by

every court to rule upon the issue. This Court has repeatedly

denied certiorari petitions raising this issue.

Similarly, there is no conflict in the circuits regarding

petitioner’s second question —- whether ATCA lawsuits are

limited to violations of jus cogens norms. No court has

required a jus cogens norm for ATCA purposes, and every

court to consider Petitioner’s argument has rejected it. It is

unnecessary for this Court to take on a complex and

somewhat esoteric issue in the absence of some clarifying

analysis and disagreement among the lower courts.

Petitioner’s third question — whether respondent’s

arbitrary arrest and detention constitutes a tort in violation of

international law — is similarly without controversy. There

can be no dispute that international law prohibits arbitrary

arrest and detention, and that the U.S. fully supports this

norm. This case appears to be the first reported U.S. decision

applying this norm in this specific context, but the application

of the international prohibition on arbitrary arrest and

detention is clear in these circumstances, as determined by the

courts at both the trial and the appellate levels. This issue

standing alone certainly does not warrant review in this

Court.

B. Proceedings Below

Respondent was abducted at gunpoint by petitioner

and his co-conspirators from his medical office in

Guadalajara, Mexico, in April 1990. His kidnappers were

private Mexican citizens acting without legal authority. He

was transported to a nearby city, held overnight, and flown to

El] Paso, Texas, the next day where he was handed over to

waiting DEA agents. Respondent challenged the district

court’s jurisdiction and moved to dismiss his indictment,

arguing inter alia, that his abduction was a violation of the

U.S.-Mexican extradition treaty. Ultimately, this Court

rejected Respondent’s treaty argument. United States v.

Alvarez-Machain , 504 U.S. 655 (1992). Respondent went to

trial in November 1992, and on December 14, 1992, the

district judge granted a motion of acquittal under FED. R.

CRIM. P. 29.

Respondent filed this action on July 9, 1993, seeking

damages for his April 1990 abduction, inter alia, under the

ATCA. Petitioner moved to dismiss the case and also to

substitute the United States as a defendant under the Westfall

Act for any claims Respondent made against him, including

the ATCA claims at issue in this petition. Petitioner’s motion

for substitution was denied, and Petitioner did not appeal

from that ruling. The ATCA claims against all the other

individual defendants were substituted under the Westfall Act

and became claims against the United States under the

Federal Tort Claims Act (“FTCA”). The district court and the

court of appeals decided that Respondent could not maintain

ATCA claims against federal officials, and that disposition !S

not before this Court.

The district court granted Respondent’s summary

judgment motion with respect to his ATCA claims against

Petitioner. In the same ruling, the district court granted the

summary judgment motion filed by the United States

dismissing Respondent’s FTCA claims. Subsequently, the

trial court held a bench trial on damages and entered a

judgment of $25,000 in compensatory damages against

Petitioner based on his violation of Respondent’s right not to

be subjected to arbitrary arrest and detention and his right not

to be subjected to transborder abduction.

Both parties appealed to the United States Court of

Appeals for the Ninth Circuit. A panel of the Ninth Circuit

affirmed the district court’s judgment against Petitioner under

the ATCA and reversed the district court’s FTCA ruling and

remanded to the district court for further proceedings on those

claims. The panel affirmed the judgment against Petitioner

on the grounds that transborder abduction and arbitrary arrest

and detention violated the law of nations. The Ninth Circuit

agreed to rehear the appeal en banc and, on June 3, 2003,

affirmed the judgment against Petitioner.

The en banc majotity found that Respondent's

abduction constituted arbitrary arrest and detention.

Simultaneously, the e banc court also rejected Respondent’s

argument that transboundary abduction violates the “law of

nations” and is actionable under the ATCA. The en banc

court did so «ven though the international authorities contrary

to its decision are uniform and powerful, and the authoritative

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE

UNITED STATES, rightly provides that “a state's law

enforcement officers may exercise their functions in the

territory of another state only with the consent of the other

state, given by duly authorized officials of that state.” /d., at

§ 432(2). Respondent maintains his contention, as found by

the district court and by the Ninth Circuit panel, that state-

sponsored transborder abduction of this kind violates the law

of nations and comes within the ATCA.

REASONS FOR DENYING THE WRIT

I. The Circuit Courts Have Uniformly Held that the

Alien Tort Claims Act Provides a Basis for Relief

for Torts Committed In Violation of the Law of

Nations.

A. The Courts Are Not Divided on the Circumstances

Under Which Liability Under the ATCA Is

Appropriate.

Petitioner urges this Court to grant certiorari because

the Second, Ninth and Eleventh Circuits have allegedly

implied a cause of action under the ATCA erroneously. Pet.

Br., at 8-11. But the courts’ analysis in the relevant cases is

consistent with this Court's jurisprudence and the intent of

Congress. There is no conflict among the circuit courts.

We start, as Petitioner does, with Filartiga v. Peria-

Irala, 630 F.2d 876 (2d Cir. 1980), in which the Second

Circuit ruled that the ATCA establishes subject matter

jurisdiction and a cause of action for serious violations of

international law, including violations of human rights norms.

The Second Circuit found explicitly that ATCA was available

only when an alien alleged violations of “well-established,

universally recognized norms of international law.” Id., at

888. The rationale for so high a standard was perfectly clear:

“(t]he requirement that a rule command the ‘general assent of

civilized nations’ to become binding on them all is a stringent

one. Were this not so, the courts of one nation might feel free

to impose idiosyncratic legal rules upon others, in the name

of applying international law.” /d., at 881. As noted

subsequently by the Second Circuit, “Filartiga established

that universally recognized norms of international law provide

judicially discoverable and manageable standards for

adjudicating suits brought under the Alien Tort Act, which

obviates any need to make initial policy decisions of the kind

normally reserved for non-judicial discretion.” Kadic v.

Karadzic, 70 F.3" 232, 244 (2d Cir. 1995), cert. denied, 518

U.S. 1005 (1996). The Second Circuit has adhered

unwaveringly to this standard for over twenty years,” allowing

2 See, e.g., Flores v. Southern Peru Copper Corp., 2003 WL

22038598, at *10 (2d Cir. Aug. 29, 2003); Wiwa v. Royal

Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000), cert.

denied, 532 U.S. 941 (2001); Zapata v. Quinn, 707 F.2d 691,

692 (2d Cir. 1983 (per curiam). As the government points

out, Gov. Br., at 18, the Flores court noted that “the law of

the District of Columbia Circuit stands in contrast to that of

our Circuit and of the other circuits that have followed our.

holding in Filartiga”, 2003 WL 22038598, at *8. The

government also concedes as it must that the D.C. Circuit has

never issued a majority opinion in conflict with Filartiga, and

that a “contrast” between the law of numerous circuits on the

one hand and concurrences in a single circuit on the other

cases that clear the high threshold of “well-established,

universally recognized norms of international law”and

dismissing cases that do not.

Since Filartiga, every circuit court of appeals and

every federal district court to address and resolve the issue has

applied a substantially identical standard, never expressing

disagreement with Fildrtiga’s underlying principles. To the

contrary, when norms of this sort are found to have been

violated, the ATCA provides both subject matter jurisdiction

and a cause of action.

The Ninth Circuit Court of Appeals, for example, has

consistently agreed with Filartiga and held that “[a)ctionable

violations of international law must be of a norm that is

specific, universal, and obligatory.” Hilao v. Estate of

Marcos, 25 F.3d 1467, 1472-76 (9" Cir. 1994), cert. denied,

513 U.S. 1126(1995).’ The Eleventh and Fifth Circuit Courts

of Appeals have adopted the same standard. Abebe-Jira v.

Negewo, 72 F.3d 844, 846-48 (11" Cir.), cert. denied, 519

U.S. 830 (1996); Beanal v. Freeport-McMoran, Inc., 197 F.3d

161, 164-65 (Sth Cir. 1999). Because these courts have never

expressed any disagreement with the Second Circuit, even

citing the Second Circuit’s precedents with approval, it is

frivolous to argue that there is difference between the Second

Circuit’s phrasing (“well-established, universally recognized

does not a circuit split make.

> Accord, Martinez v. City of Los Angeles, 141 F.3d 1373,

1383 (9" Cir. 1998); Papa v. United States, 281 F.3d 1004,

1013 (9" Cir. 2002); Trajano v. Marcos, 978 F.2d 493, 498-

503 (9th Cir. 1992), cert. denied, 508 U.S. 972 (1993).

9

norms of international law”) and the Ninth Circuit’s phrasing

(the norm must be “specific, universal, and obligatory”)

requiring intervention by this Court. The inquiry in all of the

ATCA cases has been whether the plaintiff is relying on a

norm which satisfies the accepted and rigorous tests for

determining a customary norm.‘

The fact is that, since 1980, federal courts in seven

circuits have reaffirmed Filartiga and its underlying

principles,* and none has disagreed with its standards (though

* The Supreme Court has repeatedly established the criteria

for determining the content and applicability of the law of

nations in domestic litigation when Congress has not

addressed the international standard. The touchstone is The

Paquete Habana, 175 U.S. 677 (1900), where the Court

stated:

International law is part of our law, and must be

ascertained and administered by the courts of

appropriate jurisdiction as often as questions of right

depending upon it are duly presented for their

determination. For this purpose, where there is no

treaty, and no controlling executive or legislative act

or judicial decision, resort must be had to the customs

and usages of civilized nations; and as evidence of

these, to the works of jurists and commentators . . . .

Id., at 700.

’Filartiga has been followed, inter alia, by circuit and/or

district courts in: (i) First Circuit: see, e.g., Xuncax v.

Gramajo, 886 F. Supp. 162, 178-83 (D. Mass. 1995); (ii)

Second Circuit: see, e.g., Kadic v. Karadzic, supra; (iii) Third

Circuit: see, e.g., lwanowa v. Ford Motor Company, 67 F.

10

several have dismissed cases that did not establish a violation

of international law). Not even the D.C. Circuit’s fractured

decision in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774

(D.C. Cir. 1984) (per curiam), cert. denied, 470 U.S. 1003

(1985), cited prominently by Petitioner and by the

Government, created a conflict with Filartiga. In Tel-Oren,

the panel (Edwards, Bork and Robb, JJ.) divided three ways

in refusing to extend the Fildrtiga holding to a claim of

terrorism against the Palestine Liberation Organization, but

nowhere did it state a holding conflicting with Fildrtiga. In

fact, Judges Edwards and Bork were careful to point out that

their reading of the ATCA did not conflict with the decision

of any other circuit, including Filartiga. See Tel-Oren, 726

F.2d at 790-91 ( Edwards, J); id. at 819-20 (Bork, J.). In the

nearly twenty years since Tel-Oren, not a single court has

found its contradictory opinions to be persuasive authority,

much less that it created a conflict demanding certiorari

review. Nothing in the recent lone opinion of Judge

Randolph in Al Odah v. United States, 321 F.3rd 1134, 1148

Supp.2d 424, 438-41 (D.N.J. 1999); (iv) Fifth Circuit: see,

e.g., Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164-

65 (Sth Cir. 1999); (v) Ninth Circuit: see, e.g., Alvarez-

Machain v. United States, 96 F.3d 1246 (9th Cir. 1996),

amended by 107 F.3d 696, 702-703 (1997), cert. denied, 522

U.S. 814 (1997); In re Estate of Marcos, 25 F.3d 1467, 1472-

76 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995);

Trajano v. Marcos, 978 F.2d 493, 498-503 (9th Cir. 1992),

cert. denied, 508 U.S. 972 (1993)); (vi) Eleventh Circuit: see,

e.g., Abebe-Jira v. Negewo, 72 F.3d 844, 846-48 (11th Cir.),

cert. denied, 519 U.S. 830(1996); (vii) D.C. Circuit: see, e.g.,

Doe v. Islamic Salvation Front (FIS), 993 F. Supp. 3, 7-8

(D.D.C. 1998).

(D.C. Cir. 2003). (Randolph J., concurring), alters the reality

that there is no conflict among the circuits on this

interpretation of ATCA.

B. The Coherent Jurisprudence of the Courts Under

the ATCA Is Correct as a Matter of Law.

There is good reason that no circuit split exists on the

issue of whether the ATCA both establishes subject matter

jurisdiction and in narrow circumstances recognizes a cause

of action: the argument to the contrary is inconsistent with the

plain language of the statute and the decisions of this Court.

By its terms, the statute covers (i) “any civil action,” (ii) by an

“alien” plaintiff, (iii) suing for a “tort,” (iv) “in violation of”

international law in either customary or treaty form.

Assuming that the plaintiff is an alien, the statu:e is satisfied

so long as the underlying wrong takes tortious form and is in

violation of international law. There is no additional

requirement that Congress “implement” customary

international law or that the case “arises under” federal law.

Cf. 28 U.S.C. § 1331.

In Hilao, supra, the Ninth Circuit carefully examined

the ATCA and distinguished it from other jurisdictional

statutes:

[I]n contrast to section 1331, “which requires that an

action ‘arise under’ the laws of the United States,

section 1350 does not require that the action ‘arise

under’ the law of nations, but only mandates a

‘violation of the law of nations’ in order to create a

cause of action.” Tel-Oren v. Libyan Arab Republic,

[726 F.2d 774, 779] (D.C. Cir. 1984) (Edwards, J.,

concurring), cert. denied, 470 U.S. 1003 (1985). It is

<=.

12

unnecessary that international law provide a specific

right to sue. International law “does not require any

particular reaction to violations of law. .. . Whether

and how the United States wished to react to such

violations are domestic questions.” /d., at 777-78

(quoting L. Henkin, FOREIGN AFFAIRS AND THE

CONSTITUTION 224 (1972)). “Nothing more than a

violation of the law of nations is required to invoke

section 1350.” /d. at 779.

On the basis of its careful examination of the ATCA’s text,

relevant case law, and other statutory provisions, the Ninth

Circuit concluded that the ATCA “creates a cause of action

for violations of specific, universal and obligatory

international human rights standards... .” Hilao, 25 F.3d at

1475. In this case, the en banc decision adopts the same

approach.

This analysis is consistent with the understanding of

eighteenth-century courts, as suggested by the first reported

case involving the ATCA, Bolchos v. Darrel, 3 Fed. Cas.

1810 (D.S. Car. 1795), in which the plaintiff sought

restitution for the value of slaves on a captured Spanish ship.

The court made no mention of any additional Congressional

action needed to allow the plaintiff to invoke substantive

rights under the law of nations. Those rights already existed

in American law by virtue of the incorporation of the law of

nations into the common law of the United States.° “[T]he

First Congress understood that torts in violation of the law of

nations would be cognizable at common law, just as any other

* | James Kent, COMMENTARIES ON AMERICAN LAW 195 (13

ed. 2001).

13

tort would be” and that the courts of the fledgling nation

should be open to aliens seeking a remedy for violations of

international law. Contemporaneous statements by the

Attorney General reaffirmed the status of the ATCA as the

basis for an alien’s suit to enforce international norms.*

In addition, the Petitioner’s and the Government’s

position rests on a bizarre anachronism. The very notion of a

“cause of action” entered the legal lexicon of this country

almost 60 years after the adoption of the ATCA. It only

’ William S. Dodge, “The Historical Origins of the Alien Tort

Statute: A Response to the ‘Originalists’,” 19 HASTINGSINT’L

& Comp. L. REV. 221, 239 (1996).

* In 1795, for example, the U.S. Attorney General was asked

to consider the potential liability of U.S. citizens who had

aided the French in attacking the British colony in Sierra

Leone. The opinion, only six years removed from the

adoption of the First J udiciary Act, reveals that the First

Congress understood t hat torts in violation of the law of

nations would be cognizable at common law, just as any other

tort would be:

.. there can be no doubt that the company or

individuals who have been injured by these acts of

hostility have a remedy by civil suit in the courts of

the United States; jurisdiction being expressly given

to these courts in all cases where an alien sues for a

tort only, in violation of the law of nations, or a treaty

of the United States.

1 Op. Att'y Gen. 57, 59 (1795) (emphasis in original). See

also 26 Op. Att'y Gen. 250, 253 (1907) (“I repeat that the

statutes thus provide a forum and a right of action.”).

14

“became a legal term of art when the New York Code of

Procedure of 1848 abolished the distinction between actions

at law and suits in equity and simply required a plaintiff to

include in his complaint ‘[a] statement of the facts

constituting the cause of action.’”” Davis v. Passman, 424

U.S. 228, 237 (1979). Petitioner and the Government

apparently believe that the ATCA lay dormant from the day

of its passage in 1789 until sometime in the nineteenth

century when it suddenly sprang into meaning with the arrival

of the cause-of-action concept. But that position renders

incomprehensible such Supreme Court decisions as 7he

Paquete Habana, 175 U.S. 677 (1900), and The Nereide, 13

U.S. (9 Cranch) 388 (1815), in which this Court approved the

application of customary international law in U.S. courts even

in the absence of positive Congressional enactment.

In summary, the en banc decision below rests on an

interpretation of the ATCA traceable to the Second Circuit’s

decision in Filartiga, adopted by every circuit to address and

resolve the question, in a sequence of cases denied additional

review by this Court. Certiorari should not be used to resolve

largely academic questions in a case that fails the standards

set forth in Sup. CT. R.10.

os The Coherent Jurisprudence of the Courts Under

the ATCA Does Not Compromise the Ability of the

Political Branches to Conduct Foreign Affairs.

Petitioner and the Government argue that certiorari is

appropriate because the ATCA interferes with the essential

foreign affairs prerogatives of the political branches. But “it

is error to suppose that every case or controversy which

touches foreign relations lies beyond judicial cognizance.”

15

Baker v. Carr, 369 U.S. 186, 211 (1962). Petitioner’s

concerns reflect more hyperbole than analysis: over the years,

the political branches — especially the executive branch — have

sometimes supported the exercise of jurisdiction under the

ATCA and sometimes opposed it. Nor do the Petitioner and

the Government acknowledge that the courts have developed

a variety of techniques and doctrines to screen out frivolous,

vexatious, or politically charged cases.

i. The Executive Branch

As noted above, contemporaneous analyses by the

Attorney General established that the ATCA provided a civil

remedy for aliens injured by a tortious violation of the law of

nations. In our own time, in multiple public pronouncements,

the U.S. Department of State has also recognized that the

ATCA establishes both subject matter jurisdiction and a cause

of action for serious violations of international law. In

describing the ATCA in its official submission to the U.N.

Committee against Torture, for example, the Government of

the United States declared that

U.S. law provides statutory rights of action for civil

damages for acts of torture occurring outside the

United States. One statutory basis for such suits, the

Alien Tort Claims Act. . . represents an early effort to

provide a judicial remedy to individuals whose rights

have been violated under international law.”

* Committee against Torture, Consideration of Reports

Submitted by States Parties Under Article 19 of the

Convention: United States of America, U.N. Doc.

CAT/C/28/Add.5 (2000), at 60 (emphasis supplied).

16

Petitioner’s argument is also contradicted by executive branch

submissions in human rights litigation under the ATCA. In

Filartiga, for example, the government argued that the law of

nations as it had evolved obligated every state to respect the

right of its own citizens to be free of torture and that this

obligation bound the United -States as well even in the

absence of additional Congressional enactments. According

to the government, the modern-day torturer had — like the

pirate in the eighteenth century — become hostis humani

generis, the enemy of all mankind, and therefore liable

wherever he might be found.'® The United States took a

similar position fifteen years later in Kadic v. Karadzic.'' That

the current Justice Department has taken a different view of

some pending ATCA litigation does not imply that the

meaning of this 21 4-year old statute should change from year-

to-year and administration-to- administration.

ii. The Congress

Congress has twice legislated in this area over the past

decade, and both times it has left the ATCA intact, in the

process expanding, not restricting, the categories of

international human rights claims cognizable in federal

° See Memorandum for the United States as Amicus Curiae,

Filartiga v. Pena-Irala, (2d Cir. 1980), reprinted in 19 INT’L

LEG. MATS. 585 (1980), at 601-606.

'' See Statement of Interest of the United States, Kadic v.

Karadzic, No. 94-9035 (2d Cir. 1995).

17

court.'? The TVPA inter alia codified the holding in Filartiga

and extended it to citizens of the United States.'* Congress

was fully aware of the fractured opinions in Tel-Oren, supra,

and, according to its principal sponsor, the TVPA was

adopted to “lay it all to rest”.'* In multiple judicial decisions,

the courts have found significance in the fact that Congress

had a clear opportunity to revise or restrict the ATCA in light

of Tel-Oren and did precisely the opposite. See. e.g., Wiwa v.

Royal Dutch Petroleum Company, 226 F.3d 88, 105 (2d Cir.

'2 See TVPA, 28 U.S.C. § 1350 note (extending claims for

torture and extrajudicial execution to U.S. citizens as well as

aliens); and t he “ terrorist s tate” e xception to the F oreign

Sovereign Immunities Act, 28 U.S.C. § 1605(a)(7) (2000)

(creating exception to sovereign immunity for lawsuits

alleging specified human rights violations against certain

States).

‘> According to the House Report, “(t]he TVPA would

establish an unambiguous and modern basis for a cause of

action that has been successfully maintained under an existing

law, section 1350 of-the Judiciary Act of 1789... .” H.R.

Rep. No. 367, 102d Cong., Ist Sess., pt. | (1991).

Significantly, the House Report referred to the Filartiga

decision with approval, affirmed the importance of ATCA,

and indicated that it “should not be replaced.” /d. The Senate

Report contains almost identical language. S. Rep. No. 249,

102d Cong., Ist Sess. (1991).

'4 Torture Victim Protection Act of 1989, Hearings Before -

the Subcomm. on Immigration and Refugee Affairs of the

Senate Comm. on the Judiciary, 101st Cong. 36, 65 (1990)

(statement of Senator Spector).

~

18

2000), cert. denied, 532 U.S. 941 (2001). Accord Hilao v.

Marcos, 25 F.3d at 1475; Abebe-Jira v. Negewo, 72 F.3d 844,

848 (11th Cir. 1996). Certiorari jurisdiction should not be

extended for the purpose of restricting a statute that Congress

has endorsed in its current form and has shown no interest in

restricting.

iii. The Courts

For Petitioner and the Government to suggest that the

courts are powerless to protect themselves from abusive or

politically dangerous cases is disingenuous: the judiciary has

developed the political question doctrine and the act of state

doctrine, inter alia, to ensure respect for separation of powers,

and statutory immunities and the forum non conveniens

doctrine may apply in appropriate cases." It is significant for

example that the executive branch has previously argued that

there are circumstances in which the failure to allow ATCA

litigation to go forward could adversely affect U.S. foreign

'*, See generally Kadic v. Karadzic, 70 F.3d 232, 248-249 (2d

Cir. 1995) (“We do not read Filartiga to mean that the federal

judiciary must always act in ways that risk significant

interference with United States foreign relations”). Accord

Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (Sth Cir.

1999) (dismissed for failure to prove international standards);

Abdullahi v. Pfizer, Inc.,2002 WL 31082956 (S.D.N.Y., Sept.

17, 2002) (dismissed under forum non conveniens doctrine);

Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116 (C.D.Cal.

2002) (act of state doctrine barred adjudication of

environmental tort and racial discrimination claims).

19

policy: “a refusal to recognize a private cause of action in

these circumstances might seriously damage the credibility of

our nation’s commitment to the protection of human rights.”

Memorandum for the United States as Amicus Curiae,

Filartiga v. Pena-lrala, (2d Cir. 1980), supra, at 604. The

government fully recognized then in its Filartiga brief that

some ATCA cases could be highly-charged but not for that

reason nonjusticiable:

Because foreign officials are among the prospect ve

defendants in suits alleging violations of fundamental

human rights, such suits unquestionably implicate

foreign policy considerations. But not every case or

controversy which touches foreign relations lies

beyond judicial cognizance.... [B]efore entertaining a

suit alleging a violation of human rights, a court must

first conclude that there is a consensus in the

international community that the right is protected and

that there is a widely shared understanding of the

scope of this protection. [citation omitted] When

these conditions have been satisfied, there is little

danger that judicial enforcement will impair our

foreign policy efforts.

Id., at 602-604. Accord Statement of Interest of the | 'nited

States, Kadic v. Karadzic (2d Cir. 1995), at 3 (“Although

there might be instances in which federal courts are asked to

issue rulings under the Alien Tort Statute or the Torture

Victim Protection Act that might raise a political question,

this is not one of them.”’). In short, the courts have access to

effective, but fact-dependent doctrines that distinguish proper

from improper cases under the ATCA. Granting certiorari in

a case where the limits of these doctrines were not tested is

unnecessary and unwise.

20

iv. Proving the content of custom

Petitioner and the Government assert that certiorari is

appropriate because ATCA courts have turned to unratified

and non-self-executing treaties, as well as the submissions of

academics, to give content to the law of nations. But the

courts in ATCA cases have relied on precisely the

evidentiary authorities this Court has identified as appropriate

in identifying international customary law. Contrary to the

Petitioner’s assertion, the ATCA does not and cannot enforce

unratified or non-self-executiig treaties. Nor does it convert

non-binding resolutions of the United Nations into law. But

by its terms, the ATCA does require the courts to determine

the content of the law of nations, and that process is

necessarily more complicated than consulting a treaty’s text:

customary international law arises out of a generally

consistent state practice recognized out of a sense of legal

obligation (opinio juris). The evidence of both the objective

element and the subjective element can take many forms, so

long as it reflects states’ practice and the sense of obligation.

See, e.g., Restatement (Third) U.S. Foreign Relations Law,

§ 102(2). See also The Paquete Habana, supra; United States

v. Smith, 18 U.S. (5 Wheat.) 153 (1820); The Nereide, 13

U.S. (9 Cranch) 388, 423 (1815).

In Filartiga, for example, the Second Circuit

concluded that torture was a violation of the law of nations on

the basis of multiple, reinforcing forms of evidence, consulted

not because they were binding per se as a treaty might be, but

because they offered evidence that states considered torture

illegal. No government disagreed with that conclusion, even

though it was based inter alia on treaties in consistent form —

including some to which the United States was not a party —

21

a draft convention prohibiting torture, laws and constitutions

of states around the world, resolutions of international

organizations condemning torture, the defenses offered by

non-conforming states, and the writings of publicists.

Filartiga, 630 F. 2d, at 882-84. Although the law of nations

has no public law number, this Court has identified the

sources t hat t he c ourts s hould c onsult to give it content:

“where there is no treaty, and no controlling executive or

legislative act or judicial decision, resort must be had to the

customs and usages of civilized nations; and as evidence of

these, to the works of jurists and commentators .” The

Paquete Habana, 175 US., at 700. This accepted

methodology was applied in this case.

Cases following Filartiga show a judiciary thoroughly

familiar with this process, successfully distinguishing

between norms that are “specific, universal, and obligatory,”

In re Estate of Ferdinand Marcos, Human Rights Litigation,

25 F.3d 1467, 1475 (9" Cir. 1994), and those that are not.'®

'© Cf, Guinto v. Marcos, 654 F. Supp. 276, 280

(S.D.Cal.1986) ("violation of the First Amendment right of

free speech does not rise to the level of such universally

recognized rights and so does not constitute a ‘law of nations’

»

22

The Courts Are Not Divided on the “Proper

Reach” of the ATCA: Jus Cogens Violations Are

Sufficient but Not Necessary to Satisfy the

Jurisdictional Requirements of the ATCA.

Petitioner argues that the Ninth Circuit’s standard of

liability “squarely conflicts” with the Second Circuit's

liability standard, Pet. Br., at 22, alleging that the Second

Circuit requires ATCA plaintiffs to establish not just a

violation of customary international law but a violation of jus

cogens, invoking the Latin phrase that refers to an elite subset

of peremptory norms that can in principle invalidate a state’s

treaties.'’ Certiorari is inappropriate to consider this issue

(and the academic esoterica on which it rests) because there

is no conflict between the standards in the two circuits:

Petitioner’s allegations rest on a mischaracterization of the

” Originally, jus cogens was a doctrine of Roman contract

law, holding that the freedom of contract was necessarily

limited by certain natural law principles of good morals and

public justice. Its related meaning in contemporary

international law is established by Section 102 of the

Restatement (Third) of Foreign Relations Law:

Some rules of international law are recognized by the

international community of states as peremptory,

permitting no de rogation, ani p revailing o ver and

invalidating international agr2ements and other rules

of international law in conflict with them. Such a

_Peremptory norm is subject to modification only by a

subsequent norm of international law having the same

character.

American Law Institute, RESTATEMENT (THIRD) OF FOREIGN

RELATIONS LAw, §102, cmt. k.

23

Second Circuit cases, and subsequent Second Circuit

decisions not cited by the Petitioner have explicitly affirmed

that violations of customary international law — even when

they fall short of jus cogens violations — are fully actionable

under the ATCA in that Circuit. See Flores v. S. Peru Copper

Corp., 2003 U.S. App. LEXIS 18098 (August 29, 2003). The

consistent position of every court to address and resolve the

issue is that any interpretation of ATCA requiring jus cogens

violations would be contrary to the plain language of the

statute and misconceive the relationship between the law of

nations and jus cogens. The circuit courts have therefore

repeatedly and uniformly resisted the invitation of defendants,

like the Petitioner in the proceedings below, to rewrite the

ATCA to require jus cogens violations.

A. There Is No Split Among The Circuits On The

Necessity Vel Non of a Jus Cogens Violation under

the ATCA.

The Second and the Ninth Circuit courts are not split

on the issue of whether ATCA is available only to enforce jus

cogens norms, and Petitioner’s argument to the contrary is

based on his exaggerated and implausible parsing of the

language in two Second Circuit cases, Kadic v. Karadzic, 70

F.3d 232 (2™ Cir. 1995), and Bigio v. Coca-Cola Co., 239

F.3d 440 (2™ Cir. 2000), for the proposition that Second

Circuit ATCA jurisprudence recognizes only violations of jus

cogens norms, at ieast with regard to individual — not state —

defendants. However, as appellants must concede, Pet. 23

n.6, neither Kadic nor Bigio states that ATCA claims against

individuals are limited to jus cogens violations. Despite the

Second Circuit’s use of the term “universal concern,” Bigio,

24

239 F.3d at 448, the two cases do not offer an exclusive

listing of the actions that fall under this category — much less

state that “universal concern” is coterminous with jus cogens.

At most, these cases demonstrate two endpoints of the

ATCA’s application — one at which the ATCA definitely

applies (e.g., war crimes, torture and genocide), another at

which it definitely does not (e.g., purchase by private

individuals of property a state had previously unlawfully

confiscated). They do not require a jus cogens norm for

ATCA purposes.

The Second Circuit has recently confirmed that there

is no conflict between its approach and that of the Ninth

Circuit. In Flores v. Southern Peru Copper Corporation,

2003 U.S. App. LEXIS 18098 (August 29, 2003), the Second

Circuit affirmed that ATCA claimants were only required to

allege a violation of customary international law. /d. at *38.

Flores involved an ATCA claim against a private corporation

for environmental degradation. The court made no mention

of any requirement to plead or prove jus cogens norms under

ATCA and engaged in traditional customary law analysis.

The Flores standard is entirely congruent with the

Ninth Circuit’s approach in this case and in prior decisions. In

In re Estate of Ferdinand E. Marcos, 25 F.3d 1467, 1474 (9th

Cir. 1994) (“Estate II”), the Ninth Circuit held that under

ATCA “{aJctionable violations of international law must be

of a norm that is specific, universal, and obligatory.” Accord

Martinez v. City of Los Angeles, 141 F.3d 1373, 1383 (9th

Cir. 1998). The Ninth Circuit has ruled that a jus cogens

violation is sufficient to satisfy the “specific, universal, and

obligatory” standard, Hilao v. Estate of Ferdinand Marcos,

103 F.3d 789, 795 (9th Cir. 1996) (“Hilao IT’), but it has

25

never endorsed the more restrictive proposition that a jus

cogens violation is necessary. To the contrary, in Martinez,

the Ninth Circuit ruled that arbitrary arrest and detention were

actionable under the ATCA without demonstrating that the

prohibition on such conduct rose to the level of jus cogens.

Similarly, in Hilao I], the Ninth Circuit explicitly noted that

torture is “prohibited not only by a specific, universal, and

obligatory norm but by one that reaches the level of jus

cogens.” 103 F.3d at 794. This language would be

incomprehensible if the “specific, universal, and obligatory”

criteria referred only to jus cogens.

The less strained interpretation is that the “specific,

universal, and obligatory” standard allows the court to

distinguish between genuinely customary international law

and merely idiosyncratic or aspirational norms. The first

courts to articulate the “specific, universal, and obligatory”

test did so precisely to guide these sometimes difficult

judgments. Guinto v. Marcos, 654 F. Supp. 276 (S.D. Cal.

1986); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1539-40

(N.D. Cal. 1987). In short, no circuit court has limited the

application of the ATCA to jus cogens violations, even in

cases involving private actors.'*

'§ The question of the ATCA’s applicability to private actors

is irrelevant to the resolution o ft his c ase as it has been

conceded since the beginning of this case that the appellant

was acting under the color of law. United States v. Caro-

Quintero, 745 F. Supp. 599 (C.D. Cal. 1990).

26

B. The Plain Language Of The ATCA Requires That

Plaintiff's Meet the Exacting Requirements of

Proving A Violation of The Law of Nations, Not

the Extraordinary Requirements of Proving a

Violation of Jus Cogens.

The words actually used by Congress in the ATCA

refer only to “the law of nations or a treaty of the United

States.” There is no additional requirement that the plaintiffs’

claims fall within an elite subset of customary law norms

designated jus cogens.

It is clear under this Court’s precedents, that a

customary norm need not qualify as jus cogens in order to be

justiciable generally. See, e.g., The Paquete Habana, 175

U.S. 677 (1900), (the government’s interference with

domestic coastwise fishing vessels in time of war violated an

established customary international norm, but there was no

demonstration that such actions also satisfied the

extraordinary test of jus cogens.). None of the cases require

more under ATCA. See, e.g., Filartiga v. Pena-lrala, 630 F.

2d 800 (2d Cir. 1980) (holding that torture is a clear violation

of customary international law without also demonstrating

that the prohibition of torture amounted to jus cogens).

In summary, the actual language of the statute — “the

law of nations or a treaty of the United States” — adopts a high

but not the highest (and most controversial) jurisdictional

threshold. There is no textual or historical basis for requiring

the violation of a jus cogens norm under ATCA, and there is

no split among the courts on this point.

27

Ill. There Is No Split among the Lower Courts on the

Proposition That Arbitrary Arrest and Detention

Are Violations of “The Law of Nations Or a Treaty

of the United States.”

The Ninth Circuit en banc ruled correctly that

arbitrary arrest and detention are valid claims under the

ATCA. There is no authority for the truth or the relevance of

Petitioner’s view that the freedom from arbitrary arrest and

detention, traceable to the Magna Carta,'’ “undermines the

federal government’s anti-crime and anti-terrorism efforts.”

Pet. Br., at 27. To make this claim in the context of a case

involving a defendant acquitted of all charges is an outrage.”°

The right to be free from arbitrary arrest and detention is

fundamental to a democratic and free society. Petitioner

'? “No free man shall be taken or imprisoned. ..except by the

lawful judgment of his peers or by the law of the land.”

20 Especially outrageous is Petitioner’s invocation of 21

U.S.C. § 878(a)(3), dealing with the enforcement powers of

DEA agents. Pet. Br., at 28. First, Petitioner is not and was

not a DEA agent. International bounty hunters do not stand in

the shoes of U.S. enforcement agents. Second, the fact that

the United States has jurisdiction to prescribe (i.e. that its

substantive criminal laws may apply extraterritorially)

distinctly does not mean that it has jurisdiction to enforce

(i.e., that any U.S. agent may violate another state’s territorial

sovereignty). Enforcement powers, like arrest and detention,

are inherently territorial, unless Congress explicitly rules

otherwise. Section 878 is utterly silent on its applicability

abroad.

28

would evidently like this Court to retry the issue of whether

Respondent’s brutal and lawless treatment amounted to a

violation of international law — an issue it lost at the trial

level and twice at the appellate level, once before the panel

and once before the court en banc.

The right to be free of governmental abuse, especially

in the process of arrest and detention, has been reaffirmed in

international declarations such as the Universal Declaration

of Human Rights, adopted Dec. 10, 1948, G.A. Res. 217A

(III), U.N. Doc. A/810 at 71 (1948) (Article 9), numerous

regional agreements such as the European Convention for the

Protection o f H uman R ights and F undamental F reedoms,

signed Nov. 4, 1950, entered into force, Sept. 3, 1953, 213

U.N.T.S.222, E.T.S. No. 5 (Article 5), and in binding

international covenants such as the International Covenant on

Civil and Political Rights, adopted Dec. 16, 1966, entered into

force March 23, 1976, G.A. Res. 2200A (XXI), 21 U.N.

GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999

U.N.T.S. 171 (Article 9). It is also enshrined in national

constitutions and laws, most notably the Fourth Amendment

to the U.S. Constitution.

Applying these uncontroversial standards, the courts

have repeatedly and uniformly affirmed the principle that

arbitrary arrest or detention violates international law. See,

e.g., Martinez v. City of Los Angeles, 141 F.3d 1373, 1384(9"

Cir. 1998); De Sanchez v. Banco Central de Nicaragua, 770

F.2d 1395, 1397 (5" Cir. 1985); Xuncax v. Gramajo, 886 F.

Supp. 162, 184-85 (D. Mass. 1995); and Paul v. Avril, 901 F.

Supp. 330, 335 (S.D. Fla. 1994); Forti v. Suarez Mason, 672

F. Supp. 1531, 1541 ( N.D. Cal. 19 87). There is no split

among the circuit courts on this issue, and certiorari is

29

inappropriate to engineer a retrial on the underlying issue of

the Petitioner’s liability.

CONCLUSION

This Court’s certiorari jurisdiction should not be used

to resolve academic debates, as is inevitable when there is no

disagreement among the lower courts on the questions

presented. The petition for a writ of certiorari should be

denied.

~

October 6, 2003

Respectfully Submitted,

Paul L. Hoffman

Ralph G. Steinhardt, III

Erwin Chemerinsky

Mark D. Rosenbaum

Alan I. Rubin

Attorneys for Respondent

Dr. Humberto Alvarez-

Machain

30