# Opposition Brief — Sosa v. Alvarez-Machain

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0704%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 692

## Text

(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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0704%3A04. Public record. Not legal advice.