Amicus Curiae Brief — Sosa v. Alvarez-Machain

TT

~ Supreme Court, U.S

FILED

? , JAN 2 3 2004

(x) OFFICE OF THE CLERK

No. 03-339

In the

Supreme Court of the United States

>

JOSE FRANCISCO SOSA,

Petitioner,

Vv.

HUMBERTO ALVAREZ-MACHAIN, et al.,

Respondents.

+

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

—+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

—e—

J. DAVID BREEMER ANTHONY T. CASO

Of Counsel

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amicus Curiae Pacific Legal Foundation

i

QUESTIONS PRESENTED

The Alien Tort Act (ATA), 28 U.S.C. § 1350, provides as

follows: “The 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.”

The questions presented are:

1. Whether the ATA is simply a grant of jurisdiction, or

whether, in addition to granting jurisdiction, it provides a cause

of action upon which aliens may sue for torts in violation of the

law of nations or treaties of the United States.

2. If the ATA provides a cause of action, whether the

actions it authorizes are limited to suits for violations of jus

cogens norms of international law.

3. Whether a detention that lasts less than 24 hours,

results in no physical harm to the detainee, and is undertaken by

a private individual under instructions from senior United

States law enforcement officials, constitutes a tort in violation

of the law of nations actionable under the ATA.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........... cece eeee ee eeeeeeee i

TABLE OF AUTHORITIES ...........0-c ccc eeeeeeeeeee ili

INTEREST OF AMICUS CURIAE ...........--0seeeeeee l

STATEMENT OF THE CASE .......... 0c eeeeeeceeeees 2

SUMMARY OF ARGUMENT ...........50 cece eee ee eee 3

ADIT IGT o.oo cccccccccseccccosssccsenecuseueeueees 4

I. APPLICATION OF INTERNATIONAL

PRINCIPLES WITHOUT CONGRESSIONAL

ACQUIESCENCE RAISES SERIOUS

SEPARATION OF POWERS CONCERNS ........... 4

A. The Lower Court’s Decision Usurps Congress’

Exclusive Power to Define the “Law of Nations”... 5

B. The Lower Court’s Decision Assumes

Lawmaking Powers That Properly Reside in

COMBPEES .ccccccccccccveccesesccesesseeeees 7

Il. TO AVOID SEPARATION OF POWERS

PROBLEMS, THE COURT SHOULD REQUIRE

CONGRESSIONAL CONSENT BEFORE AN

INTERNATIONAL PRINCIPLE BECOMES

ACTIONABLE IN THE UNITED STATES AS

“THE LAW OF NATIONS” .... 0.6.02 ee ee eee ee eee 10

CONCLUSION .nccccccccccccscccccccccscscssceseses 16

TABLE OF AUTHORITIES

Page

Cases

Alvarez-Mechain v. United States,

331 F.3d 604 (9th Cir. 2003)... 2... ee cece eee 4,10

Beharry v. Ashcroft, 329 F.3d 51

(2d Cir. 2003) ..... cc cceeececceceeeeeeeseeee 1,13

Beharry v. Reno, 183 F. Supp. 2d 584 (E.D.N.Y. 2002)

rev'd on other grounds, sub nom. Beharry v. Ashcroft,

329 F.3d 51 (2d Cir. 2003) .... 2... cece eee eees 12-13

Black & White Taxicab & Transfer Co. v.

Brown & Yellow Taxicab & Transfer Co.,

276 U.S. 518 (1928) 2.0... cece cece cece e eee eeees 8

City of Milwaukee v. Illinois and Michigan,

451 U.S. 304 (1981) 2.2... ccc ee eee eee eee eens 8

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938) 22... ccc cece eee eee eee eees 7-8

Flores v. Southern Peru Copper Corp.,

343 F.3d 140 (2d Cir. 2003) ... 0.6... cece eee ences 13

Food and Drug Admin. v.

Brown & Williamson Tobacco Corporation, -

529 U.S. 120 (2000) ... 2... cece cece eee ween eeeee l

Oliver Am. Trading Co. v. United States of Mexico,

264 U.S. 440 (1924) 2.2... ccc cece cee eee eee eees 8

Raines v. Byrd, 521 U.S. 811 (1997) «0.66.0 cece e eens 5

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

$31 U.S. 159 (2001) 2.0... cece eee cece eee erences 1

Swift v. Tyson, 41 U.S. (16 Pet.) 1(1842) ....----. ee eees 7

iV

TABLE OF AUTHORITIES—Continued

Page

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. 1984) .......-.0055- 2, 10, 15

The Paquete Habana, 175 U.S. 677 (1900) ........-+5.: 9

The Western Maid, 257 U.S. 419 (1922) ..........+- 15-16

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. STD (IDSZ) ..ccccccccccccccccccccces 6, 16

United States Constitution

US. Comat. amt. £ 82 on cccccccccccccccccccccccceces +

ast. 1, 6B, oh. 10 2. ccccccccccccccccccccsccccces 4-5

GR BOB cccccccccccccccccccccccccccesccocsses 4

Gt, TE BB. ccccccccccccccccccccecccccccccccees 4

Supreme Court Rules

BeBe STEED oc ccccccccccccccccccevccccceccssesees l

TD ckcccececcdoceccencectecncensesesousccess l

Miscellaneous

Belt, Stuart Walters, Missiles Over Kosovo:

Emergence, Lex Lata, of a Customary Norm Requiring

the Use of Precision Munitions in Urban Areas,

47 Naval L. Rev. 115 (2000) ...........- 0 ee ee eens 11

Bradley, Curtis A., Customary International Law

and Private Rights of Action,

1 Chi. J. Int’] L. 421 (2000)... 2... cee eee eee eee 15

Bradley, Curtis A. & Goldsmith, Jack L.,

Customary International Law as Federal Common

Law: A Critique of the Modern Position,

110 Harv. L. Rev. 815 (1997) .... 2.6... ee eee newness 9

v

TABLE OF AUTHORITIES—Continued

Page

Cassidy, Julie, The Enforcement of Aboriginal

Rights in Customary International Law,

4 Ind. Int’] & Comp. L. Rev. 59 (1993) .......-++-- 11

Clark, Bradford R., Federal Common Law:

A Structural Reinterpretation,

144 U. Pa. L. Rev. 1245 (1996) ......----eeeeeeeee 8

de la Vega, Connie, The Right to Equal Education: Merely a

Guiding Principle or Customary International Legal

Right?, 11 Harv. BlackLetter L.J. 37 (1994) ........- 11

Falk, Richard A., The Role of Domestic Courts in the

International Legal Order (1964) .......-+++++++55 13

Farrand, Max, ed., Yale Univ. Press 1966) (1911)

Committee of Detail, The Records of the

Federal Convention of 1787 ... 22.02 000e0eeeeeeeee 5

Fletcher, William A., The General Common Law

and Section 34 of the Judiciary Act of 1789: The

Example of Marine Insurance,

97 Harv. L. Rev. 1513 (1984) .......- eee eee ee eee 8

International Covenant on Civil and Political Rights

(ICCPR), Senate Comm. on Foreign Relations Report, S.

Rep. No. 102-23 (1992) ......--eeeeeeeeeeeeeeeeees 12

Jarvis, Jason, Constitutional Constraints on the

International Law-Making Power of the Federal

Courts, 13 J. Transnat’] L. & Pol’y 251 (2003) ..... 6-7

Jay, Stewart, The Status of the Law of Nations in Early

American Law, 42 Vand. L. Rev. 819 (1989) .....-- 5-6

vi

TABLE OF AUTHORITIES—Continued

Page

Kaufman, Martin S., et al., Brief Amicus Curiae of Pacific

Legal Foundation and Atlantic Legal Foundation in

Support of Respondents-Appellants in Beharry v.

Ashcroft, at http://www.atlanticlegal.org/beharry.pdf

(June, 2000) (last visited Jan. 16, 2004) ............. 2

Kearns, Anthony P., Note, The Right to Food

Exists Via Customary International Law,

22 Suffolk Transnat’! L. Rev. 223 (1998). .......... 11

Lee, John, The Underlying Legal Theory to Support a

Well-Defined Human Right to a Healthy Environment

as a Principle of Customary International Law,

25 Colum. J. Envtl. L. 283 (2000). ...........-54-- 11

Lessig, Lawrence, Erie-Effects of Volume 110:

An Essay-on Context in Interpretive Theory,

110 Harv. L. Rev. 1785 (1997) ..........0- cee eeeee 8

Madison, James, Notes on Debates of the Convention of

1787, Aug. 17, 1787, at http://www.yale.edu/lawweb/

avalon /debates/817.htm (last visited Jan. 16,2004) .. 14

Maier, Harold G., The Authoritative Sources of

Customary International Law in the United States,

10 Mich. J. Int’] L. 450 (1989) ............000005- 10

Meyer, David A., Note, The 1954 Hague Cultural

Property Convention and Its Emergence Into

Customary International Law,

11 B.U. Int’) L.J. 349 (1993) . 2... eee ee eee 11

O’Connor, Sandra Day, Proceedings of the Ninety-Sixth

Annual Meeting of the American Society of

International Law: Keynote Address,

96 Am. Soc’y Int’! L. Proc. 348 (2002) ............ 14

Vii

TABLE OF AUTHORITIES—Continued

Page

| Popiel, Brian R., Comment, From Customary

| Law to Environmental Impact Assessment:

| A New Approach to Avoiding Transboundary

Environmental Damage Between Canada

and the United States,

22 B.C. Envtl. Aff. L. Rev. 447 (1995) ........++++- 11

Siegal, Charles D., Deference and Its Dangers:

Congress’ Power to ‘Define . . . Offenses

Against the Law of Nations,’

21 Vand. J. Transnat’] L. 865 (1988) ........-++-- 5-6

Signatures to United Nations Covenant on Civil

and Political Rights, http://www.hrweb.org/legal/

cprsigs.html (last visited Jan. 16, 2004) ........-. 13-14

Stewart, David P., United States Ratification of the

Covenant on Civil and Political Rights: The

Significance of the Reservations, Understandings, and

Declarations, 42 DePaul L. Rev. 1183 (1993) .....-- 12

| 2 Story, Joseph, Commentaries on the Constitution

| (2d ed. 1851) 2... . cece eee e cece eee eeeeeee 3,5

Trimble, Phillip R., A Revisionist View of

| Customary International Law,

| 33 UCLA L. Rev. 665 (1986) .......---ee ee eeeee 13,15

Wendelowski, Karyn I., Comment,

A Matter of Trust: Federal Environmental

Responsibilities to Native Americans

Under Customary International Law,

20 Am. Indian L. Rev. 423 (1995-96) ........-+++: 11

Wilets, James D., Jnternational Human Rights

Law and Sexual Orientation,

18 Hastings Int’l & Comp. L. Rev. 1(1994) ...... 11-12

——————— =< Oe ™—~—

Viii

TABLE OF AUTHORITIES—Continued

Page

Young, Ernest A., Sorting Out the Debate Over

Customary International Law,

42 Va. J. Int’] L. 365 (2002) .......... cece eeee 9,15

l

INTEREST OF AMICUS CURIAE!

Pacific Legal Foundation (PLF) is the largest and most

experienced nonprofit public interest law foundation of its kind

in America. Litigating nationwide since 1973, PLF provides a

voice in the courts for thousands of Americans who believe in

a constitutionally grounded government, including adherence to

the principles of separation of powers, democratic consent, and

limited federal judicial powers. PLF has participated as amicus

curiae in a vast assortment of cases heard by this Court over

that time and, in so doing, has consistently argued that courts

must avoid expanding the language of a legislative act where

there is clear potential for a separation of powers problem. See,

e.g., Solid Waste Agency of Northern Cook County v. United

States Army Corps of Engineers, 531 U.S. 159 (2001); Food

and Drug Admin. v. Brown & Williamson Tobacco

Corporation, 529 U.S. 120 (2000).

PLF believes that its public policy perspective and

litigation experience will provide an additional viewpoint on

the issues presented in this case. PLF has formally adopted an

objective committing the Foundation to litigation for the

purpose of reaffirming that international legal principles may

not be judicially applied absent the consent of the political

branches of the United States government. Acting on this

objective, PLF participated along with Atlantic Legal

Foundation as amicus curiae before the Second Circuit Court of

Appeals in Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003), a

case directly raising the issue of the role of customary

! Pursuant to this Court’s rule 37.2(a), all parties have consented to

the filing of this brief. A stipulation letter evidencing such consent

has been lodged with the Clerk of the Court.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or part and that no person or

entity made a monetary contribution specifically for the preparation

or submission of this brief.

2

international law in United States lav. “ee Martin S. Kaufman,

et al., Brief Amicus Curiae of Pacific Legal Foundation and

Atlantic Legal Foundation in Support of Respondents-

Appellants in Beharry v. Ashcroft, at http://www.

atlanticlegal.org/ beharry.pdf (June, 2000) (last visited Jan. 16,

2004). Intending to broaden its activity in this area, PLF has

since committed to participating as amicus curiae in this

important case.

STATEMENT OF THE CASE

The most controversial and far-reaching question raised by

the Ninth Circuit’s treatment of the Alien Tort Act (ATA) in the

present case is what is required to state a violation of the “law

of nations” actionable under the ATA. The lower court

concluded that an international principle can be part of the “law

of nations” and a violation of the principle therefore actionable

under the ATA, even if the political branches of the United

States government have not consented to such a definition of

the “law of nations.” Consequently, this case raises a specific

issue, and the only issue addressed by amicus, concerning the

role of the political branches, and particularly Congress, in

determining what constitutes the “law of nations” for purposes

of application in the United States.”

? Amicus agrees with Petitioner’s arguments that the ATA does not

provide a cause of action given the absence of an express grant in the

statute. Amicus also believes that such a cause of action should not

be implied given the potential for interference with the conduct of

foreign affairs delegated to the political branches of government. See

Tel Oren v. Libyan Arab Republic, 726 F.2d 774, 801-05 (D.C. Cir.

1984) (Bork, J., concurring). These dangers largely depend,

however, on the content of any right of action, not just its bare

existence. Amicus accordingly believes it appropriate and necessary

to direct this Court’s attention to that content issue, particularly to

the question of whether only legislatively adopted and accepted

international principles can be actionable under the ATA.

3

Respondent Alvarez-Machain was present during the 1985

torture and murder of Drug Enforcement Agency agent Enrique

Camanara-Salazar in Mexico. Alvarez-Machain was later

indicted for participation in the murder of Camanara-Salazar

and a warrant was issued for his arrest. In 1990, agents of the

United States abducted Alvarez-Machain in Mexico and

returned him to the United States to stand trial. After he was

acquitted, Alvarez-Machain returned to Mexico and filed suit

against the United States and its agents, seeking damages for his

abduction and detention. One of his theories was that

defendants were liable for their actions under the ATA and,

more specifically, because the abduction and detention violated

principles of “international customary law.”

On June 3, 2003, an en banc panel of the Ninth Circuit

Court of Appeals held that Alvarez-! .achain could indeed hold

the United States and its agents liable for the tort of arbitrary

detention pursuant to a customary international legal principle

forbidding such detention. In so doing, the court held that

congressional consent to an international legal principle as part

of the “law of nations” is not a prerequisite to an ATA suit

under that “law.” In short, the Ninth Circuit effectively

concluded that, if enough other countries besides the United

States favor an international principle, federal courts may

enforce the principle against the United States under the ATA.

SUMMARY OF ARGUMENT

Unlike the “law of the United States,” which is made by

Congress and can be ascertained by examining the United

States Code, there is no clear source or meaning for the “law of

nations.” See 2 Joseph Story, Commentaries on the

Constitution § 1163 (2d ed. 1851) “{O)}ffenses against the law

of nations . . . cannot with any accuracy be completely

ascertained, and defined in any public code, recognized by the

common consent of nations.”). Yet, if the ATA is to have

content and force, the “law of nations” must be defined by

4

someone. Both by explicit command and structural imperative,

the Constitution compels the conclusion that only Congress

should have this power. Indeed, to avoid a construction of the

statute that raises troubling constitutional issues, the Court

should conclude that the “law[s] of nations” actionable under

the ATA are those international principles which have been

defined or recognized as part of the “law of nations” by the

Congress or that have been otherwise adopted as judicially

applicable law by the Congress through constitutional process.

ARGUMENT

I

APPLICATION OF INTERNATIONAL

PRINCIPLES WITHOUT CONGRESSIONAL

ACQUIESCENCE RAISES SERIOUS

SEPARATION OF POWERS CONCERNS

The Ninth Circuit’s fundamental conclusion is that federal

courts may identify international rules as the “law of nations”

applicable in the United States under the ATA, even in the

absence of congressional recognition of a principle as part of

the “law of nations” or the law of the United States. See

Alvarez-Mechain v. United States, 331 F.3d 604, 620 n.15 (9th

Cir. 2003); id. at 650 (O’Scannlain, J., dissenting); id. at 664

(Gould, J., dissenting). But this conclusion is not consistent

with the language of the Constitution and the separation of

powers principles upon which it is structured.

The Constitution grants only Congress the power to

“define” offenses “against the law of nations.” U.S. Const.

art. I, § 8, cl. 10. More generally, it establishes a government

of separated powers, with lawmaking powers vested in

Congress, executive powers in the President, and judicial

powers—the power to interpret and enforce the law—in the

federal courts. See U.S. Const. art. I, § 1; art. II, § 1; art. III,

§ 1. This structure, and the Constitution, are imperiled when

the judiciary treads upon a power expressly delegated to another

5

branch or otherwise exceeds the proper scope of its authority.

See, e.g., Raines v. Byrd, 521 U.S. 811, 820(1997) (recognizing

an “overriding and time-honored concern about keeping the

Judiciary’s power within its proper constitutional sphere”’). The

lower court’s conclusion that no congressional authorization is

necessary for federal courts to apply a rule as the “law of

nations” conflicts with these separation of powers standards.

A. The Lower Court’s Decision Usurps Congress’

Exclusive Power to Define the “Law of Nations”

The framers of the Constitution, many of whom were part

of the Congress that passed ATA, anticipated that the fledgling

United States would respect the “law of nations,” which at that

time consisted (at most) of “the law merchant, maritime law,

and the law of conflicts of laws, as well as the law governing

the relations between states.” Stewart Jay, The Status of the

Law of Nations in Early American Law, 42 Vand. L. Rev. 819,

821-22 (1989). But they well-understood that the “law of

nations” was vague, could not be positively grounded in any

source, and therefore subject to conflicting interpretations. See

2 Joseph Story, Commentaries on the Constitution § 1163

(“{O}ffenses against the law of nations . . . cannot with any

accuracy be completely ascertained, and defined in any public

code, recognized by the common consent of nations.”);

Committee of Detail, The Records of the Federal Convention

of 1787, at 157 (Max Farrand ed., Yale Univ. Press 1966)

(1911) (Madison’s notes) (stating that the “law of nations is too

- vague and deficient to be a rule”).

To reconcile the desire to respect the law of nations with

the need to determine first what that law is, the constitutional

framers granted to Congress the power “[t]o define and punish

... offenses against the law of nations.” U.S. Const. art. I, § 8,

cl. 10. See Charles D. Siegal, Deference and Its Dangers:

Congress’ Power to ‘Define . . . Offenses Against the Law of

Nations,’ 21 Vand. J. Transnat’] L. 865, 874 (1988). Indeed,

during the constitutional debates, it was decided that the term

6

“define” should be added to the original draft of the Offenses

Clause, which only referred to a congressional right to

“punish.” See id. at 875. Though the intent was probably not

to allow Congress to declare the law of nations, the addition

seems to have been meant to allow Congress to resolve and

clarify ambiguities before proposed international principles

became incorporated into United States law. Jd. at 874 (“[T]he

framers wanted to put Congress in a position to deal with

uncertainties as to what the offenses were. There is some

evidence that the framers believed [power under] the clause was

not restricted to the ‘offenses against the law of nations’

recognized in 1789.”). Indeed, the power to “define” “offenses

against the law of nations” necessarily implies a power to

define the “law of nations” itself, for one cannot identify a legal

violation until the law is itself known, as the lower court’s

decision in this case aptly illustrates.

The federal courts have no similar constitutional authority.

Although the framers initially considered giving the courts

broad and express authority to adjudicate cases “arising under”

the law of nations, this idea did not prevail. See Stewart Jay,

The Status of the Law of Nations in Early American Law, 42

Vand. L. Rev. at 830. General power to define offenses against

the law of nations can be found only in the enumeration of

Congress’ powers. Since it is established that powers delegated

to one branch of government should be considered exclusive,

and not imparted to another branch through its “aggregate

powers,” the power to define offenses against the law of nations

should be considered a unique prerogative of Congress. See,

e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

588-89 (1952) (legislative power granted to Congress was an

exclusive grant, which power could not also be found in

executive branch through its aggregate powers). Courts

encroach upon this prerogative when they independently

enforce a principle as a violation of law of the nations. See

Jason Jarvis, Constitutional Constraints on the International

7

Law-Making Power of the Federal Courts, 13 J. Transnat’! L.

& Pol’y 251, 252 (2003) (“compliance with the Constitution

mandates the federal courts’ complete withdrawal from the

determination or enforcement of non-statutory customary

international law”). This is exactly what occurred in this case:

the Ninth Circuit defined and punished “arbitrary detention” as

a violation of the “law of nations,” actionable under the ATA,

even though Congress has not reached the same conclusion.

B. The Lower Court’s Decision Assumes Lawmaking

Powers That Properly Reside in Congress

The judiciary runs afoul of separation of powers principles

when it engages in the functional equivalent of lawmaking, as

well as when it usurps a power delegated to another branch of

government. Ina series of cases ending in the seminal decision

of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), this Court

wrestled with the question of whether courts improperly

legislate when they apply rules grounded in a free-floating

general common law, “a transcendental body of law outside of

any particular State,” Erie, 304 U.S. at 79, rather than an act of

a sovereign authority. During the Nineteenth Century, this

Court repeatedly held that courts were within their proper

powers when they resorted to this general law. See, e.g., Swift

v. Tyson, 41 U.S. (16 Pet.) 1 (1842). But, after almost a century

of sustained criticism, the Court reversed course in Erie.

Erie declared that “there is no general federal common

law.” Erie, 304 U.S. at 79. Instead, “law in the sense in which

courts speak of it today does not exist without some definite

authority behind it.” Jd. This conclusion followed from the

conviction that an “unconstitutional course” was set out by “the

ruling in Swift v. Tyson that the supposed omission of Congress

to legislate as to the effect of decisions leaves the federal courts

free to interpret general law for themselves.” Erie, 304 U.S. at

91 (Reed, J., dissenting). Continued application of general

common law principles not grounded in any federal or state

legislative authority amounted to an ‘““unconstitutional

8

assumption of powers by the Courts of the United States.’”

Erie, 304 U.S. at 79 (quoting Black & White Taxicab &

Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276

U.S. 518, 533 (1928) (Holmes, J., dissenting) (emphasis added).

As recognized in Erie, the constitutional infirmity arising

from application of a “general law” unlinked to a legislative act

rested not only in federalism, as is commonly understood, but

also in the separation of powers doctrine. See Lawrence Lessig,

Erie-Effects of Volume 110: An Essay on Context in

Interpretive Theory, 110 Harv. L. Rev. 1785, 1793 (1997).

Thus, Erie made clear that even if the federal government had

power to make law binding on the states, the federal courts had

no independent authority to do so. Erie, 304 U.S. at 78. Erie

therefore ended the judicial practice of making decisions of

federal law that were not grounded in the Constitution or a

congressional act. See City of Milwaukee v. Illinois and

Michigan, 451 U.S. 304, 313 (1981) (“{A] federal court could

not generally apply a federal rule of decision, despite the

existence of jurisdiction, in the absence of an applicable Act of

Congress.”); Bradford R. Clark, Federal Common Law: A

Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1261-62

(1996) (“[A]Jn essential premise of the Court’s decision in Erie

... appears to be that unilateral lawmaking by federal courts in

this context violates the Constitution’s separation of powers.”).

Judicial decisionmaking under the “law of nations” is no

different than decisionmaking under the general common law

doctrine renounced in Erie. Indeed, the “law of nations” has

historically been considered part of that same doctrine. See

Oliver Am. Trading Co. v. United States of Mexico, 264 U.S.

440, 442-43 (1924); William A. Fletcher, The General Common

Law and Section 34 of the Judiciary Act of 1789: The Example

of Marine Insurance, 97 Harv. L. Rev. 1513, 1517-21 (1984).

Swift v. Tyson, the decision expressly overruled by Erie, applied

a general “law merchant” which was understood to be linked to -

the “law of nations.” Logically, Erie halted federal judicial

9

development and application of rules arising under the “law of

nations,” but untethered to any legislative act. Though Erie

generally directed courts to look to state legislative acts, in the

absence of positive federal guidance, this does not throw the

“law of nations” into state hands because here, there is an

exclusive federal guide: it is Congress through its powers under

the Offenses Clause. Consequently, Erie prevents courts from

applying modern customary international principles absent

congressional consent. See Curtis A. Bradley & Jack L.

Goldsmith, Customary International Law as Federal Common

Law: A Critique of the Modern Position, 110 Harv. L. Rev.

815, 852-53 (1997) (after Erie, a federal court cannot apply

customary international law “in the absence of some domestic

authorization to do so, as it could under the [nullified] regime

of general common law”).

Some of the Court’s early decisions may appear

inconsistent with the notion that courts can only apply the “law

of nations” after Congress has clarified the scope of that law in

the United States. See, e.g., The Paquete Habana, 175 U.S.

677, 700 (1900). But these decisions predate Erie, and there is

no persuasive reason for concluding that their broad

understanding of a judicial right to apply the “law of nations”

survived Erie. The argument that the “law of nations” is a

uniquely feder.' area that should not be subject to the control of

the states fails as a ground for expansive judicial power, the

particular concern is indeed federal, but, again, it is one that has

already been delegated by the Constitution to Congress through

the Offenses Clause, not to federal courts.

Therefore, any doubt as to how Erie applies to early

decisions relying on a legislatively ungrounded “law of nations”

should be resolved here in favor of Erie’s unmitigated

renunciation of those decisions. See, e.g., Ernest A. Young,

Sorting Out the Debate Over Customary International Law, 42

Va. J. Int’l L. 365, 393-463 (2002) (reviewing arguments for

allowing application of the “law of nations” as common law

10

after Erie and concluding that such a position is inconsistent

with Erie and in violation of constitutional principles). After

Erie, the “law of nations” can be applied in court only after

congressional action. Harold G. Maier, The Authoritative

Sources of Customary Inte-nai‘onal Law in the United States,

10 Mich. J. Int’] L. 450, 465 (1989) (“[M]Jodern decisions by

United States courts based on principles of customary

international law derived their authority from the United States

body politic.”). The alternate course, finding an unspoken

exception in Erie for continued independent judicial

development of the “law of nations,” would “run counter to

constitutional limits on the role of federal courts.” Te/-Oren,

726 F.2d at 812.

TO AVOID SEPARATION

OF POWERS PROBLEMS, THE COURT

SHOULD REQUIRE CONGRESSIONAL

CONSENT BEFORE AN INTERNATIONAL

PRINCIPLE BECOMES ACTIONABLE IN THE

UNITED STATES AS “THE LAW OF NATIONS”

The Ninth Circuit’s assumption of judicial power to

define the “law of nations” under the ATA is inextricably

linked to its conclusion that such “law” can be ascertained from

the principles in international human rights treaties and

declarations. See Alvarez-Machain, 331 F.3d at 617-18. In

several ways, this approach exacerbates the basic separation of

powers problems identified above, see infra Part I, and

reinforces the conclusion that congressional consent is a

necessary condition for judicial application of the “law of

nations.”

First, independent judicial authority to define the “law ef

nations” opens the door for courts to assert increased control

over policy questions better left in Congress’ hands. Modern

international human rights instruments purport to govern vast

11

areas of national social and economic policy; indeed, scholars

have already identified the following as potential customary

international principles: the right to food,’ the right to equal

education,‘ rights to a healthy environment,” a state obligation

to use “precision munitions,” inviolability of aboriginal

territory,’ “cultural property” rights* and sexual orientation

rights.” While these may be goals worthy of pursuit, the manner

> Anthony P. Kearns, Note, The Right to Food Exists Via Customary

International Law, 22 Suffolk Transnat’! L. Rev. 223 (1998).

* Connie de la Vega, The Right to Equal Education: Merely a

Guiding Principle or Customary International Legal Right?,

11 Harv. BlackLetter LJ. 37 (1994).

> See, e.g., John Lee, The Underlying Legal Theory to Support a

Well-Defined Human Right to a Healthy Environment as a Principle

of Customary International Law, 25 Colum. J. Envtl. L. 283 (2000);

Karyn I. Wendelowski, Comment, A Matter of Trust: Federal

Environmental Responsibilities to Native Americans Under

Customary International Law, 20 Am. Indian L. Rev. 423 (1995-96);

Brian R. Popiel, Comment, From Customary Law to Environmental

Impact Assessment: A New Approach to Avoiding Transboundary

Environmental Damage Between Canada and the United States,

22 B.C. Envtl. Aff. L. Rev. 447 (1995).

® Stuart Walters Belt, Missiles Over Kosovo: Emergence, Lex Lata,

of a Customary Norm Requiring the Use of Precision Munitions in

Urban Areas, 47 Naval L. Rev. 115 (2000).

’ Julie Cassidy, The Enforcement of Aboriginal Rights in Customary

International Law, 4 Ind. Int’! & Comp. L. Rev. 59 (1993).

* David A. Meyer, Note, The 1954 Hague Cultural Property

Convention and Its Emergence Into Customary International Law,

11 B.U. Int’! LJ. 349 (1993).

. James D. Wilets, International Human Rights Law and Sexual

(continued...)

12

and extent to which they are enforced in the United States is for

the American people to determine through their congressional

representatives, not the courts.

So far, Congress has resolutely refused to allow

international human rights treaties and the policies they favor

to supplant or supplement United States law in any way. See

David P. Stewart, United States Ratification of the Covenant on

Civil and Political Rights: The Significance of the

Reservations, Understandings, and Declarations, 42 DePaul L.

Rev. 1183, 1206 (1993) (reservations attached to international

treaties out of “a desire not to effectuate changes to domestic

law”); International Covenant on Civil and Political Rights

(ICCPR), Senate Comm. on Foreign Relations Report, 8. Rep.

No. 102-23, at 14 (1992) (reservations to ICCPR preserving

: differences between United States law and the requirements of

. the ICCPR were designed to ensure that “changes in U.S. law

in these areas will occur through the normal legislative

process’’) (emphasis added).

But, the Ninth Circuit’s recognition of an independent

judicial power to define the “law of nations” allows courts to

enforce international treaty policies and principles, under the

ATA, even when they lack congressional support. This not

only renders superfluous the Senate’s right to consent or reject

far-reaching treaties, it also provides the judiciary with a

powerful mechanism for tinkering with American policy. Just

as the Ninth Circuit used its assumed power to define the “law

of nations” to pass judgment on United States policy regarding

extraterritorial arrest, a future court might use the same

technique to influence United States’ environmental or

immigration policy. See, e.g., Beharry v. Reno, 183 F. Supp. 2d

584 (E.D.N.Y. 2002) (customary international principle against

arbitrary detention required federal immigration statute to

* (...continued)

Orientation, 18 Hastings Int’! & Comp. L. Rev. 1, 119 (1994).

13

provide an additional hearing to an alien set to be deported,

even in face of conflicting plain language of statute), rev ‘d on

other grounds, sub nom. Beharry v. Ashcroft, 329 F.3d 51 (2d

Cir. 2003); Flores v. Southern Peru Copper Corp., 343 F.3d

140, 144 (2d Cir. 2003) (under the ATA, plaintiffs allege

violation of customary international law rights to “sustainable

development” and “health”).

Moreover, an assumed judicial power to define the law of

nations by reference to international treaty principles clearly

gives foreign nations, even those that are outwardly hostile to

the United States, a powerful mechanism for creating United

States law. See Richard A. Falk, The Role of Domestic Courts

in the International Legal Order 72 (1964) (assumption of

international relations powers “principally entrusted by the

Constitution to the Congress or the Executive” converts courts

into “agent[s] of the international order”). International human

rights agreements, and the potential customary international

principles which they advance are, after all, created by nations

which “are neither representative of the American political

community nor responsive to it.” Phillip R. Trimble, A

Revisionist View of Customary International Law, 33 UCLA L.

Rev. 665, 721 (1986). This is vividly illustrated by noting that

the following nations have adopted the ICCPR, the instrument

on which the Ninth Circuit heavily relies in this case to find a

“law of nations” principle barring arbitrary arrest:

Iraq (pre-liberation)

Iran

North Korea

Afghanistan (pre-liberation)

Syria

Libya

Sudan

14

Somalia

Haiti

Colombia

See Signatures to United Nations Covenant on Civil and

Political Rights, http://www.hrweb.org/legal/cprsigs.html (last

visited Jan. 16, 2004).

While it may not be intrinsically objectionable for

principles favored by these and other nations to influence the

direction of United States law, see Sandra Day O’Connor,

Proceedings of the Ninety-Sixth Annual Meeting of the

American Society of International Law: Keynote Address, 96

Am. Soc’y Int’! L. Proc. 348, 352 (2002) (“{A]cting in accord

with international norms may increase the chances for broader

alliances.”), it is undoubtedly objectionable when this occurs

through a judicial process that is largely immune from, and

unaccountable to, the will of the majority of Americans. See

James Madison, Notes on Debates of the Convention of 1787,

Aug. 17, 1787, at http://www.yale.edu/lawweb/avalon

/debates/8 17.htm (last visited Jan. 16, 2004) (“stating that ‘no

foreign law should be a standard farther than is expressly

adopted”).

To preserve Congress’ right to determine whether foreign

principles will become part of United States law, and to avoid

judicial encroachments on Congress’ policy making role, as

well as on its power to define offenses against the law of

nations, congressional acquiescence’ should be required before

'0 It is not necessary to identify all the congressional actions that

might constitute consent to, or recognition of, a principle as part of

the “law of nations,” for purposes of allowing judicial application of

the principle under the ATA. However, it is worth noting that a prior

congressional consent requirement may be satisfied, as a practical

matter, if the ATA is held to permit suits for some jus cogens norms,

(continued...)

15

federal courts may apply and interpret an international principle

as “the law of nations” in the United States, under the ATA or

otherwise. See Trimble, A Revisionist View of International

Law, 33 UCLA L. Rev. at 716 (“courts should never apply

customary international law except pursuant to political branch

direction’’).

As Justice Holmes explained a decade before Erie:

[W]e must realize that however ancient may be the

traditions of [international] maritime law, however

diverse the sources from which it has been drawn, it

derives its whole and only power in this country

from its having been accepted and adopted by the

United States .... When a case is to be governed by

'? (...continued)

such as torture or piracy, or for some norms of the “law of nations”

as understood at the time ATA was enacted, since a case can be made

that congressional acts or the Constitution already recognize these

limited norms as part of United States law. See, e.g., Tel-Oren, 726

F:2d at 813-14 (Congress may have meant ATA to allow suits for

violations of rights of Ambassadors, safe-conduct, and for piracy,

since these were well-understood at that time to implicate the law of

nations and were specifically addressed in early federal statutes);

Curtis A. Bradley, Customary International Law and Private Rights

of Action, 1 Chi. J. Int’] L. 421, 424 (2000) (discussing Congress’

creation of a cause of action for torture and extrajudicial killing by

1991 enactment of the Torture Victim Protection Act). But the

important point is not that some specific and narrow class of widely

respected international norms are actionable, it is that some norms

are actionable because they enjoy the support of the American people

through the actions of their representatives. See, e.g., Young,

Sorting out the Debate, 42 Va. J. Int’! L. at 448 (noting that in ATA

cases applying jus cogens norms, there appears to be “‘a domestic law

filtering mechanism that determines which international norms are

‘in’ and which are ‘out’ for domestic purposes—an inquiry

reminiscent of the . . . position that customary law may be applied

only with some sort of domestic authorization”).

16

foreign law or by general maritime law that is only a

short way of saying that for this purpose the

sovereign power takes up a rule suggested from

without and makes it part of its own rules.

The Western Maid, 257 U.S. 419, 432 (1922) (emphasis added).

_ By following the path set out long ago in Western Maid,

the Court will reaffirm the constitutional promise to “integrate

the dispersed powers into a workable government. .. . [to]

enjoin[{] upon its branches separateness but interdependence,

autonomy but reciprocity.” Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. at 635 (Jackson, J., concurring).

CONCLUSION

For the foregoing reasons, the decision of the Ninth

Circuit Court of Appeals should be reversed.

DATED: January, 2004.

Respectfully submitted,

J. DAVID BREEMER ANTHONY T. CASO

Of Counsel Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

10360 Old Placerville Road, 10360 Old Placerville Road,

Suite 100 Suite 100

Sacramento, California 95827 Sacramento, California 95827

Telephone: (916) 362-2833 Telephone: (916) 362-2833

Facsimile: (916) 362-2932 Facsimile: (916) 362-2932

Counsel for Amicus Curiae Pacific Legal Foundation