# Amicus Curiae Brief — Sosa v. Alvarez-Machain

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## Record

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

## Text

OMT

No. 03-339

Supreme Court of the United States

JOSE FRANCISCO SOSA,
Petitioner,
VS.

HUMBERTO ALVAREZ-MACHAIN, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
~ FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE
NATIONAL AND FOREIGN LEGAL SCHOLARS
IN SUPPORT OF RESPONDENTS
DAVID S. WEISSBRODT WILLIAM J. ACEVES

Professor of Law Counsel of Record
UNIVERSITY OF MINNESOTA Professor of Law
LAW SCHOOL CALIFORNIA WESTERN
434 Mondale Hall SCHOOL OF LAW
_ 229-19th Avenue South 225 Cedar Street
Minneapolis, Minnesota 55455 San Diego, California 92101
(612) 625-5027 (619) 515-1589

Counsel for Amici Curiae
NATIONAL AND FOREIGN LEGAL SCHOLARS

Lawyers + Appellate Brief Printers © (213) 613-1013 » (949) 720-1510

i BEST AVAILABLE COPY

No. 03-339

Supreme Court of the United States

JOSE FRANCISCO SOSA,

Petitioner,
vs.

HUMBERTO ALVAREZ-MACHAIN, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT -

BRIEF OF AMICI CURIAE
NATIONAL AND FOREIGN LEGAL SCHOLARS
IN SUPPORT OF RESPONDENTS

DAVID S. WEISSBRODT WILLIAM J. ACEVES
Professor of Law Counsel of Record
UNIVERSITY OF MINNESOTA Professor of Law
LAW SCHOOL CALIFORNIA WESTERN
434 Mondale Hall SCHOOL OF LAW
229-19th Avenue South 225 Cedar Street
Minneapolis, Minnesota 55455 San Diego, California 92101
(612) 625-5027 (619) 515-1589

Counsel for Amici Curiae
NATIONAL AND FOREIGN LEGAL SCHOLARS

TABLE OF CONTENTS

L THE ALIEN TORT CLAIMS ACT
PROVIDES SUBJECT MATTER
JURISDICTION AND A CAUSE OF
ACTION FOR SERIOUS VIOLATIONS
OF INTERNATIONAL LAW ................ 3

A. This Approach is Consistent with the
Language and History of the Alien
a 4

B. This Approach is Consistent with the
United States Government’s Prior
Interpretations of the Alien Tort
Ee 11

od This Approach is Consistent with the
Torture Victim Protection Act of

THE ALIEN TORT CLAIMS ACT DOES
NOT ENFORCE UNRATIFIED TREATIES

OR NON-BINDING U.N. RESOLUTIONS ....

ALIEN TORT CLAIMS ACT LITIGATION
IS NOT BARRED BY THE GENERAL
PRESUMPTION AGAINST THE
EXTRATERRITORIAL APPLICATION

ALIEN TORT CLAIMS ACT LITIGATION
SHOULD NOT BE PRESUMPTIVELY
BARRED BY ALLEGED “SEPARATION

OF POWERS CONCERNS.” .............

“eee eeeeeneeeeeeeeneeeeeeeeeeeee

17

.. 25

TABLE OF AUTHORITIES
Page

CASES
Abebe-Jira v. Negewo,

72 F.3d 844 (11th Cir. 1996) ............. 4,9, 15, 19
Aguinda v. Texaco, Inc.,

303 F.3d 470 (2d Cir. 2002) ............... 19, 20, 27
Al Odah v. United States,

321 F.3d 1134 (D.C. Cir. 2003) ............... 10, 26
Alvarez-Machain v. Sosa,

eS eee 2
Amerada Hess Shipping Corp. v. Argentine Republic,

GSO F208 428 GO Cie, BGBT) . ww cc ccccccccccccccs 2
American Insurance Association v. Garamendi,

I 60s bdudcbsdaccdececencece 15
Amilon Metals, Inc. v. FMC Corp.,

775 F. Supp. 668 (S.D.N.Y. 1991) ................ 20
Anderman v. Federal Republic of Austria,

256 F. Supp.2d 1098 (C.D. Cal. 2003) ............. 26

Baker v. Carr,
CI oo i oo 10, 26, 27

-iV-

Banco Nacional de Cuba v. Sabbatino,

PO SEED cccccccccccccccosencoces 23, 27
Beanal v. Freeport-McMoran, Inc.,

Se Wee Oe GEG BUUED ccccccccvcccceecs 18, 20
Bolchos v. Darrel,

3 Fed. Cas. $10 (D. S. Car. 1795) ... 0. ccc cecccccce: 4

Cabello v. Fernandez-Larios,
157 F. Supp. 2d 1345 (S.D. Fla. 2001) .............. i]

Canadian Overseas Ores, Ltd. v. Compania de Acero
del Pacifico S.A.,
$28 F. Supp. 1337 (S.D.N.Y. 1962) ........ccccecs 20

Cohen v. Hartman,
SP GD GED cocccccocccoceoecces 20

Davis v. Passman,
I i i ee 7

De Wit v. KLM Royal Dutch Airlines,
570 F. Supp. 613 (S.D.N.Y. 1983)................ 20

Doe v. Exxon Mobil Corp.,
BSE ESS7 GOL. Cis. FEED oc ccccccccccccvcccece 2

Doe v. Islamic Salvation Front (FIS),
Ss Eh Pe CEE occ cccccccoseosesies 10

ia i tl

-y-

Doe v. Unocal,

963 F. Supp. 880 (C.D. Cal. 1997) ................ 19
Estate of Cabello v. Fernandez-Larios,

er NED coccbenetcoesécscccséesées 19
Estate of Rodriquez v. Drummond Company,

256 F. Supp. 2d 1250 (N.D. Ala. 2003) ..... 4, 8, 18, 19
Filartiga v. Pena-lrala,

630 F.2d 876 (2d Cir. 1980) ................. passim
Flores v. Southern Peru Copper Corp.,

343 F.3d 140 (2d Cir. 2003) .................. 19, 20

~=

Food and Drug Administration v. Brown & Williamson,

SPT dec usadiedsdebheddentiavade 16

Forti v. Suarez-Mason,
672 F. Supp. 1531 (N.D. Cal. 1987),
reconsidered on other grounds,
694 F. Supp. 707 (N.D. Cal. 1988) ......... 7,9, 19, 20

Ge v. Peng,
201 F. Supp. 2d 14 (D.D.C. 2000) ................. 4

Guinto v. Marcos,
654 F. Supp. 276 (S.D. Cal. 1986) ................ 20

Hamid v. Price Waterhouse,
51 F.3d 1411 (9th Cir. 1995) .................... 20

Hilao v. Estate of Marcos,
25 F.3d 1467 (9th Cir. 1994),

cert. denied, 513 U.S.1126 (1995) ......... 7, 8, 15, 19
Iwanowa v. Ford Motor Co.,

67 F. Supp. 2d 424 (D.N.J. 1999) . 0.0... cece cece. 9
Jama v. INS,

22 F. Supp. 2d 353 (D.N.J. 1998) ....... 0. eee eeee 4,9
Japan Whaling Association v. American Cetacean Society,

GP Ss SE ED ccccececcecesccscesccesoncs 27
Jones v. Petty Ray Geophysical Geosource, Inc.,

722 F. Supp. 343 (S.D. Tex. 1989) ..........00 005. 20
Kadic v. Karadzic,

70 F.3d 232 (2d Cir. 1995) .......ccecesceees passim

’ McKenna v. Fisk,
SEED bb codecdcrneddéceseoaeasacas 23

Mehinovic v. Vuckovic,
198 F. Supp. 2d 1322 (N.D. Ga. 2002) ............. 19

Mostyn v. Fabrigas,
1 Cowp. 161 (K.B. 1774) ... 0... ccc cece cece eee 22

Moxon v. The Fanny,
BF We Gs See Gk Ob DIRE cc ccccccccvecsecccces 21

Mushikiwabo v. Barayagwiza,
1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. 1996) ....... 19

-Vii-

National Coalition Gov't of Burma v. Unocal, Inc.,

176 F.R.D. 329 (C.D. Cal. 1997) ................5. 2
Papa v. United States,

281 F.3d 1004 (9th Cir. 2002) ............00.002., 9
Paul v. Avril,

812 F. Supp. 207 (S.D. Fla. 1993) .............. 9,19
Piper Aircraft Co. v. Reyno,

A in od tc anton wsapeteeuntes 27
Presbyterian Church of Sudan v. Talisman Energy, Inc.,

244 F. Supp. 2d 289 (S.D.N.Y. 2003)......... 8, 19, 25
Sarei v. Rio Tinto PLC,

221 F. Supp. 2d 1116 (C.D. Cal. 2002) ......... 20, 27
Shanker Hedge v. British Airways,

1982 U.S. Dist. LEXIS 16469 (N.D. Ill. 1982)....... 20
Stout v. Wood,

1 Blackf. 71 (Ind. Circ. Ct. 1820) ................. 22

Tachiona v. Mugabe,
234 F. Supp. 2d 401 (S.D.N.Y. 2002).............. 19

Tamari v. Bache & Co. S.A.L.,
TIO P.26 1103 (7a Cir. 1964) 0... cc ccc ccc cccccs 20

Tel-Oren v. Libyan Arab Republic,
726 F.2d 774 (D.C. Cir. 1984),
cert. denied, 470 U.S. 1003 (1985) ...... 2, 8-10, 13, 14

-Vili-
The Nereide,
13 U.S. (9 Cranch) 388 (1815) ........ 02 eee eee eee 17
The Paquete Habana,
STS UB. GFE CIBSGD ccccccccvccccccccccccces 17, 24
Trajano v. Marcos,
978 F.2d 493 (9th Cir. 1992) ............. 2, 8, 20, 25

United States v. La Jeune Eugenie,
26 F. Cas. 832 (C.C.D. Mass. 1822) ............4. 23

United States v. Smith,
SD Ue Ge PD CO GREED ccc ccccccccccsccens 17

United States v. Yousef, |
327 F.3d 56 (2d Cir. 2003) «0.6... e cece e eee e eee 21

W.S. Kirkpatrick v. Environmental Tectonics,
GE PED cecccccesecccccessstesscess 28

Ware v. Hylton,
DUS. BB) TIP TD ccccccccccccccesvceens 24

Watts v. Thomas,
5 Ky. (2 Bibb) 458 (1811) 2... cece eee eee ees 22

Wiwa v. Royal Dutch Petroleum Company,
226 F.3d 88 (2d Cir. 2000) ......... cece eeeeee 15, 19

Xuncax v. Gramajo,
886 F. Supp. 162 (D. Mass. 1995) ...........4. 9,19

-ix-
Zapata v. Quinn,
Pe SE os Kav eeacdcedwedeces 19
STATUTES
18 U.S.C. § 2333 ... pices biiceecssaeeuekads 29
NEE 9b 444 bok bUAdA CREE EiNadeweael 4,21
EEE ged iicde gry pie tunduavienis passim

OPINIONS OF THE ATTORNEY GENERAL

Abduction and Restitution of Slaves,

Pe TENE ccocevasbecesbexeccedacs 5
Breach of Neutrality,

FS A PNUD cc dc cdvccucosecucees 5, 22
Mexico Boundary — Diversion of the Rio Grande,

SOG AY Gat, FIO CIGS) occ cccccccccccceccecs 5
OTHER AUTHORITIES

Anne-Marie Burley, “The Alien Tort Statute and the
Judiciary Act of 1789: A Badge of Honor,”
83 Am. J. Int'l L. 461 (1989) .............4.. 6, 23, 24

-J-

Anthony D’ Amato, “Judge Bork’s Concept of the
Law of Nations is Seriously Mistaken,”
79 Am. J. Int'l L. 92 (1985) 2.0... cee ee ee eee eens 6

Anthony D’ Amato, “The Alien Tort Statute and the
Founding of the Constitution,”
82 Am. J. Int’l L. 62 (1988)... 6... eee eee eee eee 6,7

Brief of the United States as Amicus Curiae Filed in
Opposition to Petition for Certiorari, Tel-Oren v.
Libyan Arab Republic, No. 83-2052 (January 1985) .. 10

Cheshire's Private International Law,
(Bth ed. 1970) .... cc ccccccccccceccccccccscces 22

Edwin D. Dickinson, “The Law of Nations as
Part of the National Law of the United States,”
O00 OF Bin, £, Bigm, BE CIGGED cw cccccsccccccvoceces 5

H.R. Rep. No. 367, 102d Cong., Ist Sess., pt. 1 (1991) . 14

Jeffrey M. Blum & Ralph G. Steinhardt,
“Federal Jurisdiction Over International Human
Rights Claims: The Alien Tort Claims Act After
Filartiga v. Pena Irala,”
22 Harv. Int'l L.J. 53 (1981) 2... ee ee 26

Jordan Paust, International Law as Law of the United
States (2d ed. 2003)... 2. ccccccccccceee 4,6,7,17

Louis Henkin, Foreign Affairs and the U.S. Constitution
BAG CBG OE. GDB) .n nc ccccccccccccccccscccseces 28

-Xi-

Louis Henkin, “International Law as Law in the United
States,”
82 Mich. L. Rev. 1555 (1984) ................ 5, 8, 28

M.W. Janis, “Jeremy Bentham and the Fashioning of
‘International Law,””
78 Am. J. Int’l L. 405 (1984)... 0... eee eee. 4

Memorandum for the United States as Amicus Curiae,
Filartiga v. Pena-Irala, (2d Cir. 1980), reprinted in

19 Int'l Legal Materials 585, 606 (1980) ....... passim
Restatement (Third) of the Foreign Relations

Law of the United States (1987) .............0055. 17
S.Rep. No. 249, 102d Cong., Ist Sess. (1991) ......... 14

Statement of Interest of the United States, Kadic v.
Karadzic, No. 94-9035 (2d Cir. 1995) .......... 12, 18

The Documentary History of the Supreme Court of the
United States,

1789-1800 (Maeva Marcus, ed. 1988) .............. 6

U.N. 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) ............... 11

U.N. Commission on Human Rights, Question of the
Human Rights of All Persons Subjected to Any Form
of Detention or Imprisonment, U.N. Doc.
E/CN.4/1996/29/Add.2 (1996) ................ 11,12

-Xli-

U.N. Convention on Torture, Hearings before the
Committee on Foreign Relations, U.S. Senate, 100th
Cong., 2d Sess. (Jan. 30, 1990) .... 1... ee ee ee eeees 25

William Dodge, “The Constitutionality of the
Alien Tort Statute: Some Observations on

Text and Context,”
42 Va. J. Int’l L. 687 (2002) ....... 0c cece eee eees 24

William S. Dodge, “The Historical Origins of the
Alien Tort Statute: A Response to the ‘Originalists’,”

19 Hastings Int'l & Comp. L. Rev. 221 (1996) ........ 6

132 Cong. Rec. S 7062 (June 6, 1986) .......---+++: 6

—_————-—— ~ - -

|

INTEREST OF THE AMICI

This Brief of Amici Curiae is respectfully submitted
jointly by two groups: (1) United States scholars; and (2)
foreign scholars.' Each of the scholars has studied or written
extensively on subjects pertaining to international law, human
rights law, or foreign affairs law.’

Amici believe that efforts to restrict the nature and scope
of the Alien Tort Claims Act (“ATCA”) conflict with the text
of the statute, the historical record, and well-established case
law. Since the seminal ruling of Filartiga v. Pena-Irala, 630
F.2d 876 (2d Cir. 1980), federal courts have applied the
ATCA to impose civil liability for only the most serious
violations of international law. For the past twenty-four
years, federal courts have adopted a balanced interpretation
and application of the ATCA. Amici support this nuanced
approach to ATCA litigation.’

SUMMARY OF ARGUMENT
The Alien Tort Claims Act explicitly authorizes civil
actions brought by aliens for torts committed in violation of
the law of nations or a treaty of the United States. 28 U.S.C.
§ 1350. Courts construing the plain wording of the statute in

' No counsel for either party authored the brief in whole or in part. No
person or entity, other than amici curiae, its members, and counsel,
made a monetary contribution to the preparation or submission of the
brief. All parties have consented to the filing of this brief. Their
consents have been filed with the Court.

? Amici consist of over 75 scholars from throughout the world, including
Australia, Canada, Ireland, Mexico, the Netherlands, New Zealand, the
United Kingdom, and the United States. A complete list of amici is
located in the Appendix.

* Amici take no position on the other issues raised in this litigation.

2

its historical and doctrinal context have concluded that it
provides subject matter jurisdiction and a cause of action for
serious violations of international law, including human rights
abuses.

The Petitioner and the Justice Department have sought
to undermine this well-established understanding of the
ATCA. First, they argue that the Alien Tort Claims Act is
purely a jurisdictional statute. Second, they assert that U.S.
courts may not consider unratified treaties or non-binding
U.N. resolutions in construing the status of customary
international law. Third, they allege that the ATCA cannot be
applied extraterritorially. Finally, they suggest that ATCA
litigation raises separation of powers concerns.

Taken together, these submissions offer no coherent
vision of the ATCA. Indeed, the Justice Department’s most
recent analysis flatly contradicts the positions it expressed in
Filartiga v. Pena-Irala, 630 F.2d at 876, Kadic v. Karadzic,
70 F.3d 232 (2d Cir. 1995), and National Coalition Gov't of
Burma v. Unocal, Inc., 176 F.R.D. 329 (C.D. Cal. 1997).* In

* The Justice Department Brief is at least the eighth filing since 1980 in
which the Government has offered its interpretation of the ATCA. The
United States has also filed briefs addressing the scope of the ATCA in
Filartiga v. Pena-lrala, 630 F.2d 876 (2d Cir. 1980) (supporting
jurisdiction); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.
Cir. 1984), cert. denied, 470 U.S. 1003 (1985) (opposing certiorari);
Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421 (2d
Cir. 1987) (arguing that the ATCA does not provide jurisdiction over
foreign sovereign); Trajano. v. Marcos, 978 F.2d 493 (9th Cir. 1992)
(offering restrictive interpretation of the ATCA); Kadic v. Karadzic, 70
F.3d 232 (2d Cir. 1995) (supporting jurisdiction); Alvarez-Machain v.
Sosa, 331 F.3d 604 (9th Cir. 2003) (en banc) (opposing jurisdiction);
Doe v. Exxon Mobil Corp., 1-01-CV-1357 (D.C. Cir. 2003) (opposing
jurisdiction).

3

stark contrast, the judiciary has developed a coherent and
consistent body of ATCA jurisprudence for twenty-four years.
The arguments set forth by the Petitioner and the Justice
Department are unpersuasive; they comtradict the express
terms of the statute and do not comport with the historical
record. They invite the courts to amend the statute without
considering the views of Congress, which not only adopted
the ATCA in 1789 but which extended it in the Torture
Victim Protection Act of 1991. Additionally, they threaten to
usurp the constitutional role of the courts to decide cases and
controversies properly presented to them.
~ Forthese reasons, the Court should reject the arguments
of the Petitioner and the Justice Department and affirm the
long-recognized (and balanced) interpretation of the Alien
Tort Claims Act.

ARGUMENT

Il. THE ALIEN TORT CLAIMS ACT PROVIDES
SUBJECT MATTER JURISDICTION AND A
CAUSE OF ACTION FOR SERIOUS
VIOLATIONS OF INTERNATIONAL LAW.
Enacted as part of the First Judiciary Act of 1789, the

Alien Tort Act 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.” 28 U.S.C. § 1350. Since Filartiga v.

Pena-lrala, 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.

4

A. This Approach is Consistent with the Language

and History of the Alien Tort Claims Act.

By its terms, the ATCA covers lawsuits: (1) by an alien;
(2) for a tort; (3) committed in violation of the law of nations
or a treaty of the United States.* See Estate of Rodriquez v.
Drummond Company, 256 F. Supp. 2d 1250, 1259-1260
(N.D. Ala. 2003); Ge v. Peng, 291 F. Supp. 2d 14, 19-20
(D.D.C. 2000); Jama v. INS, 22 F. Supp. 2d 353, 363 (D.N.J.
1998); Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir.
1996); Kadic v. Karadzic, 70 F.3d 232 at 238. The statute
contains no additional reference to Congressional
incorporation or to a case “arising under” federal law. Cf. 28
U.S.C. § 1331. -

This was clearly understood by eighteenth-century
courts, as suggested in the first reported case involving the
ATCA.® In Bolchos v. Darrel, 3 Fed. Cas. 810 (D. S. Car.
1795), a French plaintiff sought restitution for the seizure and
sale of slaves who had been taken from a captured Spanish
prize vessel. Jurisdiction was premised on the ATCA. The
court found that it had jurisdiction, dismissing “all doubt
upon this point.” /d. At no time did the court indicate that
independent congressional authorization was necessary to
allow the lawsuit to proceed.

This approach to the ATCA is also found in the
opinions of the Attorney General. In 1795, Attorney General
William Bradford addressed a situation in which American
citizens trading off Sierra Leone were alleged to have joined

5 The term “law of nations” is now synonymous with international law.
See Jordan Paust, International Law as Law of the United States, 63,
229-236, 311-312 (2d ed. 2003); M.W. Janis, “Jeremy Bentham and the
Fashioning of ‘International Law,"” 78 Am. J. Int'l L. 405 (1984).

® See generally Paust, supra, at 7-9, 233-234, 286-288, 391-392.

5

a French fleet in attacking and plundering British property on
that coast. The opinion, only six years removed from the
adoption of the First Judiciary Act, provides some insight into
the contemporary understandings of the ATCA. After
discussing the availability of criminal prosecution, the
Attorney General addressed the ATCA.

[T]here can be no doubt that the company or
individuals who have been injured by Uiese
acts of hostility have a remedy by a 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; . . .

Breach of Neutrality, 1 Op. Att'y Gen. 57, 59 (1795)
(emphasis in original). See also Mexico Boundary —
Diversion of the Rio Grande, 26 Op. Att'y Gen. 250, 253
(1907) (“I repeat that the statutes thus provide a forum and a
right of action.”); Abduction and Restitution of Slaves, | Op.
Att'y Gen. 29, 30 (1792) (apparent reference to a possible
civil action under the ATCA where the defendant had
committed piracy by stealing slaves from a Frenci colony).
The reason for this uniformity of urderstanding
regarding the ATCA is evident: the law of nations was
considered a part of the common law. See Louis Henkin,
“International Law as Law in the United States,” 82 Mich. L.
Rev. 1555 (1984); Edwin D. Dickinson, “The Law of Nations
as Part of the National Law of the United States,” 101 U. Pa.
L. Rev. 26 (1952). Thus, “the First Congress understood that
torts in violation of the law of nations would be cognizable at

6

common law, just as any other tort would be.”” William S.
Dodge, “The Historical Origins of the Alien Tort Statute: A
Response to the ‘Originalists’,” 19 Hastings Int'l & Comp. L.
Rev. 221, 239 (1996). In cases alleging violations of the law
of nations, the courts of the fledgling nation should be open
to aliens seeking a remedy.*

Thus, the arguments raised by the Petitioner and the
Justice Department, that the ATCA requires explicit statutory
authorization and an express right of action to implement its
provisions, are contrary to the historical record. Indeed, these
additional requirements would necessarily defeat the
application of the law of nations in domestic courts by
erecting a test that no case can pass, thus rendering the ATCA

. See also Paust, supra, at 14-15, 229-236, 311-312; Anthony D'Amato,
“Judge Bork’s Concept of the Law of Nations is Seriously Mistaken,
79 Am. J. Int'l L. 92 (1985).

* In 1790, Chief Justice John Jay made this point in a grand jury charge:

We had become a Nation — as such we were responsible to others
for the observance of the Laws of Nations; and as our national
Concerns were to be regulated by national Laws [,] national
Tribunals became necessary for the Interpretation & Execution
of them both.

“John Jay’s Charge to the Grand Jury of the Circuit Court for the District
of New York, April 12, 1790,” in 2 The Documentary History of the
Supreme Court of the United States, 1789-1800 25, 27 (Maeva Marcus,
ed. 1988) (emphasis added). See generally Anthony D’ Amato, “The Alien
Tort Statute and the Founding of the Constitution,” 82 Am. J. Int'l L. 62
(1988); Anne-Marie Burley, “The Alien Tort Statute and the Judiciary Act
of 1789: A Badge of Honor,” 83 Am. J. Int'l L. 461 (1989).

eo er

meaningless.”

In addition, the Petitioner’s position rests on a self-
serving anachronism. The concept of a “cause of action” only
“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, 442
U.S. 228, 237 (1979). Thus, the Petitioner apparently
believes 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 con- Although “[t]he Framers might not have
anticipated the fact that the law of nations would come to
prohibit one alien from torturing another, . . . it is unrealistic
to think that they would have wanted the federal courts to
shrink from enforcing the law of nations ‘in its modern state
of purity and refinement.’”” William Dodge, “The
Constitutionality of the Alien Tort Statute: Some
Observations on Text and Context,” 42 Va. J. Int’l L. 687,
701 (2002). See also Burley, supra, at 482 (ATCA was
adopted as “a moral imperative —- a matter of national
honor.”). As several courts have properly observed,
“Tb]ecause of the nature of the alleged acts, the United States
has a substantial interest in affording alleged victims of

principle can be considered as incorporated into the public code of
nations.”). See also The Paquete Habana, 175 U.S. 677 (chronicling
the development of the law of nations); Ware v. Hylton, 3 U.S. (3 Dall.)
199 (1796) (distinguishing between “ancient” and “modern” law of
nations). “Thus it is clear that courts must interpret international law not
as it was in 1789, but as it has evolved and exists among the nations of
the world today.” Filartiga, 630 F.2d at 881.

This was the position of the Justice Department in the Filartiga
litigation. “The law of nations in Section 1350 refers to the law of
nations as that body of law may evolve. There is no reason to believe
that Congress intended to freeze the meaning of the law of nations in
this statute as of 1789, any more than it intended the simultaneous grant
of jurisdiction over maritime actions to be limited to maritime law as it
then existed. Since the law of nations had developed in large measure
by reference to evolving customary practice, the framers of the first
Judiciary Act surely anticipated that international law would not be
static after 1789." Memorandum for the United States as Amicus
Curiae, Filartiga v. Pena-lrala, 19 Int'l Legal Materials at 588.

25

atrocities a method to vindicate their rights.””° Presbyterian
: — of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d at

It is not surprising, therefore, that efforts to add a locus
requirement to the ATCA have been explicitly rejected by the
courts. See, e.g., Trajano v. Marcos, 978 F.2d at 500 (“We
are constrained by what § 1350 shows on its face: no

limitations as to the citizenship of the defendant or the locus
of the injury”).

IV. ALIEN TORT CLAIMS ACT LITIGATION

SHOULD NOT BE PRESUMPTIVELY BARRED

BY ALLEGED “SEPARATION OF POWERS

CONCERNS.”

Both the Petitioner and the Justice Department argue
that ATCA cases inherently pose separation of powers
concerns. Petitioner’s Brief, at 8; Justice Department’s Brief,
at 46. In support of this assertion, they allege that ATCA
litigation will create tensions with other nations and

© See also Testimony of Abraham Sofaer, the State Department's Legal
Adviser, with respect to the Convention against Torture.

The Administration . . . believes . . . that, as a member of the
international community, we must stand with other nations in
pledging to bring to justice those who engaged in torture,
whether in U.S. territory or in the territory of other countries.

U.N. Convention on Torture, Hearings before the Committee on Foreign
Relations, U.S. Senate, 100th Cong., 2d Sess. (Jan. 30, 1990), at 8
(emphasis added).

26

undermine the war on terrorism.” Their arguments suggest
that courts are incapable of regulating ATCA litigation and
that a permanent barrier is needed to deter these lawsuits.
Despite such broad assertions, it is inaccurate to suggest
that the federal courts cannot protect the United States from
abusive litigation. The courts have developed several
doctrines of judicial abstention to ensure respect for
separation of powers, including the political question
doctrine, the act of state doctrine, and the doctrine of forum
non conveniens. Other judicial doctrines — from standing
requirements to statutes of limitations — also impose rigorous
requirements on ATCA litigation. But these doctrines
require the courts to consider them on a case-by-case basis.”
For example, the political question doctrine constitutes
one form of judicial abstention that allows courts to protect
the separation of powers. Baker v. Carr, 369 U.S. 186, 217
(1962). See, e.g., Anderman v. Federal Republic of Austria,
256 F. Supp.2d 1098 (C.D. Cal. 2003) (dismissal pursuant to
political question doctrine). The act of state doctrine serves

2” In support of its assertion that ATCA cases could have serious
implications for the current war on terrorism, Justice Department cites
Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003). Justice
Department’s Brief, at 52-53. But it is unclear how Al Odah could
possibly be viewed as having “serious implications for our current war
on terrorism,” especially when the case was dismissed by the D.C.
Circuit Court of Appeals. If anything, Al Odah confirms that the federal
courts are fully capable of dismissing ATCA claims if these cases do not
meet the exacting standards of the statute. Al Odah’s connection to the
ATCA is unclear in any event, since two members of the three-judge
panel concluded that the ATCA was irrelevant to the case.

8 See Jeffrey M. Blum & Ralph G. Steinhardt, “Federal Jurisdiction Over
International Human Rights Claims: The Alien Tort Claims Act After
Filartiga v. Pena-lrala,” 22 Harv. Int'l LJ. 53 (1981).

27

a related function, precluding courts “from inquiring into the
validity of the public acts of a recognized foreign sovereign
power committed within its own territory... .” Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964).
See, e.g., Sarei v. Rio Tinto PLC, 221 F. Supp. 2d at 1116
(dismissal pursuant to act of state doctrine). The doctrine of
forum non conveniens provides yet another form of judicial
abstention that allows the federal courts to dismiss lawsuits
that are more properly litigated in a foreign jurisdiction.
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). See, e.g.,
Aguinda v. Texaco, Inc., 303 F.3d at 470 (dismissal pursuant
to doctrine of forum non conveniens).

The Petitioner and Justice Department appear to
disregard these judicial doctrines when they imply that the
federal courts are incapable of addressing separation of
powers concerns in ATCA litigation. But overbroad concerns
such as these have been dismissed by this Court before.

There are sweeping statements to the effect
that all questions touching foreign relations
are political questions. ... Yet it is error to
suppose that every case or controversy which
touches foreign relations lies beyond judicial
cognizance. Our cases in this field seem
invariably to show a discriminating analysis of
the particular question posed, in terms of the
history of its management by the political
branches, of its susceptibility to judicial
handling in the light of its nature and posture
in the specific case, and of the possible
consequences of judicial action.

Baker v. Carr, 369 U.S. at 211-212. See also Japan Whaling

28

Association v. American Cetacean Society, 478 U.S. 221,230
(1986) (“Under the Constitution, one of the Judiciary's
characteristic roles is to interpret statutes, and [it] cannot shirk
this responsibility merely because our decision may have
significant political overtones.”). And as this Court noted in
W.S. Kirkpatrick v. Environmental Tectonics, 493 U.S. 400,
409 (1990), courts “[h]ave the power, and ordinarily the
obligation, to decide cases and controversies properly
presented to them.”

In short, “[t}here is, then, no Supreme Court precedent
for extraordinary abstention from judicial review in foreign
affairs cases.” Louis Henkin, Foreign Affairs and the U.S.
Constitution 146 (2d ed. 1996). Rather, ATCA lawsuits
should be considered on a case-by-case basis.” “We believe
a preferable approach is to weigh carefully the relevant
considerations on a case-by-case basis. This will permit the
judiciary to act where appropriate in light of the express
legislative mandate of the Congress in section 1350, without
compromising the primacy of the political branches in foreign

In its Filartiga submission, the Justice Department acknowledged that
courts in ATCA litigation must engage in a careful analysis of the
underlying international norms before allowing such lawsuits to

proceed.

[Before 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.

Memorandum for the United States as Amicus Curiae, Filartiga v. Pena-
Irala, \9 Int'l Legal Materials at 604.

29

affairs.” Kadic v. Karadzic, 70 F.3d at 249.

The final irony is that the Petitioner and Justice
Department suggest that ATCA litigation would undermine
the war on terrorism and the fight against international crime.
But the opposite is true: it is precisely through civil litigation
that victims of international crimes, including terrorism, can
seek compensation for their injuries and punish perpetrators
of these atrocities.” It would be wrong to create blanket
immunity for defendants accused of such horrific acts and, in
the process, to take away the one (and perhaps only) weapon
available to victims of serious human rights abuses.

CONCLUSION

The Alien Tort Claims Act plays a critical role in
upholding fundamental principles of international law and has
done so for almost a quarter-century. It provides victims of
serious human rights abuses — from slavery and genocide to
torture and terrorism — with the ability to seek redress for their
injuries in U.S. courts.

The Petitioner and the Justice Department should not
be allowed to eviscerate a statute that has been affirmed by
the three branches of government on numerous occasions. To
do so would cause further injury to victims of serious human
rights abuses and would send the wrong message to
perpetrators of such egregious acts.

* Cf. The Anti-Terrorist Act of 1990, 18 U.S.C. § 2333.

February 26, 2004

30

Respectfully Submitted,

William J. Aceves

Counsel of Record

Professor of Law

California Western School of Law
225 Cedar Street

San Diego, CA 92101

David S. Weissbrodt
Professor of Law
University of Minnesota
Law School

434 Mondale Hall
229-19th Avenue South
Minneapolis, MN 55455

Counsel for Amici Curiae

TE on

Al

APPENDIX
LIST OF AMICI’

Wendy A. Adams is an Assistant Professor of Law at McGill
University in Canada.

Philip Alston is a Professor of Law at New York University
School of Law.

Jose E. Alvarez is a Professor of Law at Columbia Law
School.

Diane Marie Amann is a Professor of Law at the University of
California, Davis, School of Law.

Penelope Andrews is a Professor of Law at the City University
of New York School of Law.

Deborah Anker is Director of the Harvard Immigration and
Refugee Clinical Program at Harvard Law School.

Bridget Arimond is a Clinical Assistant Professor of Law and
Assistant Director of the Center for International Human Rights
at Northwestern University School of Law.

Jeffery Atik is a Professor of Law and Sayre Macneil Fellow
at Loyola Law School.

M. Cherif Bassiouni is the President of the International
Human Rights Law Institute and a Professor of Law at the
DePaul University College of Law.

' Institutional references provided for identification purposes only.

A2

Richard Bilder is the Foley & Lardner-Bascom Professor of
Law at the Universit. ©” Wisconsin (Madison).

Christopher Blakesley is a Professor of Law at the University
of Nevada, Las Vegas, Boyd School of Law.

Carolyn Patty Blum is a Clinical Professor of Law (Emeritus)
at the University of California, Berkeley, Boalt Hall School of
Law, and an Adjunct Professor of Law at Columbia Law
School.

Kathryn Lee Boyd is an Associate Professor of Law at
Pepperdine University School of Law.

Rosa Ehrenreich Brooks is an Associate Professor of Law at
the University of Virginia School of Law.

Bartram S. Brown is the Co-Director of the Program in
International and Comparative Law and a Professor of Law at
Chicago-Kent College of Law.

Peter Burns is a Professor of Law at the University of British
Columbia.

Andrew Byrnes is the Director of the Graduate Program and
a Professor of Law at The Australian National University.

Douglass W. Cassel is a Clinical Professor of Law at
Northwestern University School of Law.

Hilary Charlesworth is a Professor of Law and the Director
of the Centre for International and Public Law at The
Australian National University.

A3

Christine M. Chinkin is a Professor of Law at the London
School of Economics and Political Science, and an Affiliated
Overseas Professor at the University of Michigan Law School.

Roger S. Clark is the Board of Governors Professor of Law at
Rutgers University School of Law (Camden).

Sarah Cleveland is a Professor of Law at the University of
Texas (Austin).

Marjorie Cohn is a Professor of Law at Thomas Jefferson
School of Law.

James M. Cooper is an Assistant Dean for Mission
Development and an Adjunct Professor of Law at California
Western School of Law.

Alberto Costi is a Senior Lecturer at Victoria University in
New Zealand.

Rhonda Copelon is a Professor of Law and Director of the
International Women’s Human Rights Law Clinic at the City
University of New York School of Law.

Anthony D’Amato is the Judd & Mary Morris Leighton
Professor of Law at Northwestern University School of Law.

Lori Fisler Damrosch is the Henry L. Moses Professor of
International Law and Organization at Columbia Law School.

Constance de la Vega is a Professor of Law at the University
of San Francisco School of Law.

A4

Laura Dickinson is an Associate Professor of Law at the
University of Connecticut School of Law.

Robert F. Drinan, S.J. is a Professor of Law at Georgetown
University Law Center.

Paul R. Dubinsky is an Associate Professor of Law at New
York Law School.

George E. Edwards is a Professor of Law and Director of the
Program in International Human Rights Law at Indiana
University School of Law (Indianapolis).

Stephanie Farrior is a Professor of Law at the Pennsylvania
State University, Dickinson School of Law.

*

Gregory H. Fox is a Professor of Law at Wayne State
University Law School.

Robert K. Goldman is a Professor of Law and Louis C. James
Scholar at American University, Washington College of Law.

Jose A. Guevara is a Professor of Law and Head of the
Human Rights Program at the Ibero Americana University in

Malvina Halberstam is a Professor of Law at the Cardozo
School of Law at Yeshiva University.

Gunther Handi is the Eberhard Deutsch Professor of Public
International Law at Tulane Law School.

AS

Hurst Hannum is a Professor of International Law and Co-
Director of the Center for Human Rights & Conflict Resolution
at the Fletcher School of Law and Diplomacy at Tufts
University.

Laurence R. Helfer is a Professor of Law and Lloyd Tevis
Fellow at Loyola Law School, and a Visiting Research Scholar
at the Woodrow Wilson School of Public and International
Affairs at Princeton University.

Mark W. Janis is the William F. Starr Professor of Law at the
University of Connecticut School of Law.

Menno T. Kamminga is a Professor of Law and Co-Director
of the Maastricht Centre for Human Rights at Maastricht
University in the Netherlands.

Linda M. Keller is an Assistant Professor of Law at Thomas
Jefferson School of Law. ——

Jules Lobel is a Professor of Law at the University of
Pittsburgh School of Law.

Bert B. Lockwood is a Professor of Law and Director of the
Urban Morgan Institute for Human Rights at the University of
Cincinnati College of Law.

Ellen Lutz is a Senior Research Fellow in International Law at
the Fletcher School of Law and Diplomacy at Tufts University.

Beth Lyon is an Assistant Professor of Law at Villanova
University School of Law.

A6

Linda A. Malone is the Marshall- Wythe Foundation Professor
of Law at the College of William and Mary School of Law.

Jennifer Martinez is an Assistant Professor of Law at Stanford
Law School.

Garth Meintjes is Associate Director of the Center for Civil
and Human Rights and Concurrent Associate Professional
Specialist in Law at Notre Dame Law School.

Juan E. Méndez is the Director of the Center for Civil and
Human Rights and a Professor of Law at Notre Dame Law
School.

Mayo Moran is an Associate Professor of Law at the
University of Toronto.

James A.R. Nafziger is the Thomas B. Stoel Professor of Law
and Director of International Programs at Willamette University
School of Law.

John Noyes is a Professor of Law at California Western School
of Law.

Mary Ellen O’Connell is a Professor of Law at The Ohio State
University, Moritz College of Law.

Diane Orentilicher is a Professor Law at American University,
Washington College of Law.

Hari Osofsky is an Assistant Professor of Law and Director of
the Center for International and Comparative Law at Whittier
Law School.

nee he ee

A7

Jordan J. Paust is the Foundation Professor of Law and the
Director of the International Law Institute at the University of
Houston Law Center.

John Quigley is a Professor of Law at The Ohio State
University, Moritz College of Law.

Jane Rocamora is a Supervising Attorney at the Harvard
Immigration and Refugee Clinic at Harvard Law School.

Naomi Roht-Arriaza is a Professor of Law at the University of
California, Hastings College of the Law.

Leila Nadya Sadat is a Professor of Law at Washington
University School of Law.

William A. Schabas is a Professor of Law and Director of the
Irish Centre for Human Rights at the National University of
Ireland (Galway).

Paul Schiff Berman is a Professor of Law at the University of
Connecticut School of Law.

Craig Scott is a Professor of Law at Osgoode Hall Law School
at York University in Canada.

James Silk is the Executive Director of the Orville H. Schell,
Jr. Center for International Human Rights and Director of the
Allard K. Lowenstein International Human Rights Clinic at Y ale
Law School.

A8

Edwin M. Smith is the Leon Benwell Professor of Law,
International Relations, and Political Science, and the Academic
Director of International Programs at the University of
Southern California Law Center.

David Sloss is an Assistant Professor of Law at St. Louis
University School of Law.

Henry J. Steiner is the Jeremiah Smith, Jr. Professor of Law
and Director of the Human Rights Program at Harvard Law
School.

Fernando R. Tesé6n is the Tobias Simon Eminent Scholar and
a Professor of Law at Florida State University.

Jon M. Van Dyke is a Professor of Law at the University of
Hawaii.

Beth Van Schaack is an Assistant Professor of Law at the
Santa Clara University School of Law.

Ana Vega is a Professor in the Human Rights Program at the
Ibero Americana University in Mexico City, Mexico.

Penny M. Venetis is a Clinical Professor of Law at Rutgers
University School of Law (Newark).

Graham J. Virgo is Reader in English Law at the Faculty of
Law at the University of Cambridge.

David S. Weissbrodt is the Fredrikson and Byron Professor of
Law at the University of Minnesota Law School.

A9

Richard J. Wilson is a Professor of Law and Director of the
International Human Rights Law Clinic at American University,
Washington College of Law. x
Jeanne M. Woods is the Henry F. Bonura, Jr. Distinguished
Professor of Law at Loyola University School of Law.

Eric Yamamoto is a Professor of Law at the University of
Hawaii.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0704%3A21. Public record. Not legal advice.