Amicus Curiae Brief — Sosa v. Alvarez-Machain

IN THE

Supreme Court of the Anited 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

MEMBERS OF THE VICTIMS OF THE SEPTEMBER

11, 2001 TERRORIST ATTACKS IN SUPPORT OF

es

PENNY M. VENETIS

Counsel of Record

Rutgers Constitutional Litigation Clinic

123 Washington St.

Newark, New Jersey 07102

(973) 353-5687

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHIORITIES ....cccccccccsess il

INTEREST OF AMICI CURIAE .............. l

SUMMARY OF ARGUMENT ............... 7

PEE spe vkvecsceseseccssiuessenees 10

I. The United States, Which is at the Forefront

of Fighting Terrorism, Should Ensure that All

Victims of Terrorism Are Able To Sue

Pe GN GD Ne sccccdiccesisss 10

II. To Combat Terrorism Most Effectively, and in

Keeping with Congressional Intent, Victims of

Terrorism Should Have Access to U.S. Courts,

Regardless of Their Nationality ........... 15

A. The ATCA Affords Foreign Nationals

Who Are Victims of Terrorism the Only

Meaningful Opportunity tu Vindicate

Their Rights and Recover Damages .... 17

B. The ATCA Is a Powerful Tool for the

United States in its War Against Terrorist

Organizations ..... eee eeeeeeeseesees 21

C. Congress Has Repeatedly Sanctioned the

Courts’ Interpretation that the ATCA

Creates a Cause of Action ............ 26

CONCLUSION ........cccccecccccccvcccets

TABLE OF AUTHORITIES

CASE LAW: Page

Abdullah v. Pfizer, Inc., No. 01CIV8118, 2002 WL

31082956 (S.D.N.Y. Sept. 17,2002) ........-- 18

Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996)

D5 et PATER PPE OPT eT eee S TEE ET ESET 7,24

Alvarez-Machain v. United States, 331 F.3d 604

(9th Cir. 2003), cert. granted, 124 S. Ct. 807

GIOTDD . cc ccccccscncevccvescvcedpoccccees 7,24

Barclay's Bank PLC v. Franchise Tax Bd. of Cal.,

512 U.S. 298, 329 (1994) 1... cee eee ee eens 23, 24

Bigio v. Coca-Cola Co., 239 F.3d 440 (2d Cir.

BID cc ccvcccccceccsecsccccccnscvccccces 18

Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th

Ge FID ccc ccc cece nsccnctevecccccccvens 15

Burnett v. Al Baraka Inv. and Dev. Corp., 274 F. 9,17

Supp. 2d 86 (D.D.C. 2003) .......--- +e secre 18

Doe v. islamic Salvation Front, 257 F. Supp. 2d 115

(D.D.C. 2003)... .. cece cece cece errr renee 18

Doe v. Unocal Corp, 963 F. Supp. 880(C.D. Cal.

1997) 23

Eminete v. Johnson, 361 F.2d 73 (D.C. Cir. 1966),

cert. denied, 385 U.S. 929 (1966) ......-+++>: 8, 23

Estate of Cabello v. Fernandez-Larios, 157 F. Supp.

2d 1345 (S.D. Fla. 2001) .............0...2...

Filartiga v. Pena-lrala, 630 F.2d 876

I a

Flores v. Southern Peru Copper Corp., 343 F.3d 14

(2d Cir. 2003) ...........0... neaplag

Forti v. Suarez-Mason, 762 F. Supp. 2d 1531

ae a

W.S. Kirkpatrick & Co. v. Environmental Tectonics

Corp., 493 U.S. 400 (1990) ... 2... ee.

In re Krupp and Others, 15 1.L.R. 620 (U.S. Milit.

Trib. Nuremberg 1948) .............0000.....

In re Krauch and Others (1.G. Farben Trial), 15

I.L.R. 668 (U.S. Milit. Trib. Nuremberg 1949)

lwanowa v. Ford Motor Co., 67 F. Supp. 2d 424

ens eeccbickecactcacceheuceses

Japan Whaling Ass'n. v. American, 471 U.S. 221

(1985)

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1996) ....

Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D

Ga. 2002) .............05.. aces —_

a

Presbyterian Church of Sudan v. Talisman Energy

Co., 244 F. Supp. 2d 289 (S.D.N.Y. 2003) ......

24, 25

18, 20

Princz v. Federal Republic of Germany, 26 F.3d

1166 (D.C. Cir. 1994) 20... cece eee nes

Pugh v. Socialist People's Libyan Arab Jamahiriya,

290 F. Supp. 2d 94 (D.D.C. 2003) .........++:

Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C.

Cle. IDBS) cn ccccccccccccccccscccccsoscces

Smith y. Islamic Emirate of Afghanistan, 262 F.

Supp. 2d 217, 225-26 (S.D.N.Y. 2003) ........

Tachione v. Mugabe, 169 F. Supp. 2d 259

(S.D.N.Y. 2001) 2.0... cece eee eee eee eens

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

(D.C. Cir. 1984) 2.6... cece eee eee eee eens

_ United States v. Yousef, 327 F.3d 56 (2d Cir. 2003)

United States v. Yunis, 924 F.2d 1086 (D.C. Cir.

\

United States v. Flick, 6 Trials of War Criminals

Before the Nuremberg Military Tribunals Under

Control Council Law No. 10, 1191 (1949) ......

CONSTITUTIONAL PROVISIONS:

U.S. CONST. art VI, cl. 2 2.2... cece cere eee

STATUTES:

18 U.S.C. § 2332(0) IMF) ©... eee eee ees

19

28

25

22 U.S.C. §21Sin ........................ 22

19 U.S.C.A. § 2464 ................... 22

22 U.S.C.A. § 6412 ................... 22

The Alien Tort Claims Act, 28 U.S.C.

PEE 8.60 Fidédéncdcscikcccececcan passim

The Antiterrorism Act of 1992, Pub. L. 102-572,

106 Stat. 5406 (S 1569), 18 U.S.C. §§ 2331 9,11

STIS RSE NE as Ce ena 15

Antiterrorism and Effective Death Penalty A

ct, 28

U.S.C. § 1605(a)(7)(2003) ................ 11,12

The Foreign Sovereign Immunities Act, 28

, 28 U.S.C.

1602 (2003) ....................... om lies ro

Homeland Security of Act of 2002, Pub L. 107

; . 107-296

EE ee aed oer ct eh 3,12

H.R. Rep. No. 102-367 (1991), reprinted i

U.S.C.C.A.N. 84 .......... og e a8 we ‘ 28

Human Rights and Security Assistance, 27 U.S.C

2304(a)(1) (2003) ............. ines _ 8,22

S. Rep. 104-179 at 12, reprinted in 1996

-1V-

VBL LAM, OG, GB) ow. ccc ccc ccc ccccce 12

Statement by President Ronald Reagan (Aug. 27,

1986), reprinted in 1986 U.S.C.C_A.N. 1965 .. 11

Statement by President George H.W. Bush (Oct. 29,

1992), reprinted in 1992 U.S.C.C.A.N. 3942 . 1]

-V-

Statement by President William J. Clinton (Apr. 24,

1996), reprinted in 1996 U.S.C.C.A.N. 961-1

USA PATRIOT Act, Pub. L. 107-56, 115 Stat. 272

GREED oc ccccccccvoscscccccscosessceses

TREATIES OF THE UNITED STATES:

Convention for Suppression of Unlawful Seizure of

Aircraft (Hijacking), Hague Convention of 1970, 22

UST 1641 (1970)... 0. cece eee cece e eee ennee

International Convention for the Suppression of

Terrorist Bombings, Pub. L. 107-197, 116 Stat. 721

(H.R. 3275), reprinted in 37 1.L.M. 249 (1998) ...

International Convention for the Suppression of the

Financing of Terrorism (“Terrorist Financing

Convention”), reprinted in 39 1.L.M. 270 (1999) ..

1800 Treaty of Paris, 7 Bevans 801

(expired July 31, 1809) .......--- esse eeeees

Omnibus Diplomatic Security and Antiterrorism Act

of 1986, Pub. L. 99-399, 11 Stat. 853 (H.R. 4151) .

OTHER TREATIES:

Rome Statute of the International Criminal Court,

U.N. Doc.A/CONF.183/9 (1998) .......--5+55:

INTERNATIONAL DECLARATIONS:

12

3, 8,

12, 23

10, 27

10

20

Control Council Law No. 10, art. 1(2) .........

G.A. Res. 3034(XXVII), U.N. GAOR, 27th Sess.,

U.N. Doc. A/RES/3034(XXVII) (1972) .........

G.A. Res. 31/102, U.N. GAOR, 31st Sess., U.N.

Doc. A/RES/31/101 (1976) ...................

G.A. Res. 32/147, U.N. GAOR, 32d Sess., U.N. Doc.

Mosh OESTRONE

G.A. Res. 34/145, U.N. GAOR, 34th Sess., U.N.

Doc. A/RES/34/145 (1979) ...................

G.A. Res. 36/109, U.N. GAOR, 36th Sess., U.N.

Doc. A/RES/36/109 (1981) ...................

G.A. Res. 38/130, U.N. GAOR, 38th Sess. U.N

A/RES/38/130(1983) .............. Seyi ong

G.A. Res. 39/159, U.N. GAOR. 39th Sess.. U.N

A/RES/39/159(1984) .............. oy sg

G.A. Res. 40/61, U.N. GAOR, 40th Sess.. UN

A/RES/40/61 (1985) .............. jer vias

G.A. Res. 42/159, U.N. GAOR. 42d Sess.. UN

A/RES/42/159 (1987) cibirapismeneccaetoguremy

G.A. Res. 44/29, U.N. GAOR, 44th Sess.. UN

A/RES/44/29 (1989) .............. ma ae

G.A. Res. 49/60, U.N. GAOR, 49th Sess.. U.N

A/RES/49/60 (1995) ce ee

G.A. Res. 49/185, U.N. GAOR, 49th Sess., U.N.

Doc. A/RES/49/185 (1995) .......0000.......

-Vil-

19

13

13

13

13

13

13

13

13

13

13

13

13

G.A. Res. 54/110, U.N. GAOR, 54th Sess., U.N.

Doc. A/RES/54/110 (2000) ......... cece ewes

G.A. Res. 54/164, U.N. GAOR, 54th Sess., U.N.

Doc. A/RES/54/164 (2000)... 6. eee cee eee

G.A. Res. 55/158, U.N. GAOR, 55th Sess., U.N.

Doc. A/RES/55/158 (2001)... .. ccc cceceeeees

G.A. Res. 56/1, U.N. GAOR, 56th Sess., U.N. Doc.

RAIS CRED nc cccccsseseseccccvcess

G.A. Res. 57/27, U.N. GAOR, 57th Sess., U.N. Doc.

A/RES/57/27 (2003) 6. cee ee eee eens

G.A. Res. 57/338, U.N. GAOR, 57th Sess., U.N.

Doc. A/RES/57/338 (2003)... 6. ee eee eee es

G.A. Res. 58/48, U.N. GAOR, 58th Sess., U.N. Doc.

A/RES/58/48 (2004) 6c eee

G.A. Res. 58/81, U.N. GAOR, 58th Sess., U.N. Doc.

A/RES/58/81 (2004) 0. we eee eens

OTHER AUTHORITIES:

Mason Anderson, Ground Zero Crews

Find Relief at Red Cross, available at

http:/www.disasterrelief.org/Disasters/

O2020Sgroundzero .... 2... eee eee ee eens

Dan Barry, After the Attacks: The Tally;

With No Miracle in the Rubble,

Hope Shifts Grimly to Acceptance,

N.Y. TIMES, Sept. 17,2001, at Al2 ............

-Viil-

13

13

13

14

14

14

13

13,14

David J. Bederman, National Security.

Globalization, International Law and

United States Foreign Policy,

50 Emory L. J.717(2001) ...................

Big Oil's Dirty Secrets, ECONOMIST,

a a

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) ..........

David W. Chen, As Deadline for 9/11

Aid Nears, Many Relatives Haven't Filed,

N.Y. Times, Nov. 22, 2003, at Al .............

David Cole et al., /nterpreting the Alien Tort

Statute: Amicus Curiae Memorandum of

International Law Scholars and Practioners in

Trajano v. Marcos, 12 HASTINGS INT’L &

SS Me DEDUUED coccccccccccccceccecs

Glenn Collins, A Nation Challenged:

The Missing; As Providers, Friends, and

Shoulders to Lean On, They Put Others First,

N.Y. TIMES, Sept. 26, 2001, at Bl] ............

Anthony D’ Amato, Comment,

The Alien Tort Statute and the

Founding of the Constitution,

82 AM. J. INT’L L. 62 (1988) .................

Shaila K. Dewan, A Nation Challenged:

The Memorials, For the Families, A Chance

-1X-

6,7

4,5

27

to Share Tears and Love, N.Y. TIMES,

ee (8 ) | Bereerrererrerrerrrrre

Daphne Eviatar, Profits at Gunpoint:

Unocal’s Pipeline in Burma Becomes a

Test Case in Corporate Liability, NATION,

June 30, 2003, 8 16... cece reece ee eecees

THE FEDERALIST No. 3 (John Jay)

(Clinton Rosseter ed., 1961)... 6... eee eee eee

Benjamin Ferencz, Interview by The World Online

(Sept. 19, 2001), az

http://www. ratical.org/ratville/C AH/cahCAH.html

MAURICE GREENBERG ET AL., TERRORIST

FINANCING: REPORT OF AN INDEPENDENT TASK

FORCE SPONSORED BY THE COUNCIL ON FOREIGN

RELATIONS, Council on Foreign Relations

errr rrr rrr thet rrr roe

Steven Greenhouse, A Nation Challenged:

Windows on the World; a Showpiece’s Survivors

Wonder What To Do Now, N.Y. TIMES,

Sept. 21, 2001, at B12... 1... cee eee eee eee

Steven Greenhouse & Mireya Navarro,

Afier the Attacks: The Hidden Victims;

Those at the Towers’ Margins Elude List of

Missing, N.Y. TIMES, Sept. 17, 2001, at All .....

Human Rights Watch, September 11: One

Year On: A Message to the Human Rights

23

26

19

Committee (Sept. 9, 2002), at

http://www.hrw.org/press/2002/09/Sept| l.htm ...

N.R. Kleinfeld, U.S. Attacked:

Hijacked Jets Destroy Twin Towers and

Hit pentagon in Day of Terror,

N.Y. TIMES, Sept. 12, 2001, at Al

Charlie LeDuff, Last Steel Column from the

Ground Zero Rubble is Cut Down,

N.Y. TIMES, May 29, 2002, at B3

The Money: Drying Up the Funds for Terror.

Council on Foreign Relations:

Terrorism Questions and Answers, available at

http://cfrterrorism.org/responses/money.htm|

National Day of Prayer and Remembrance

Sor the Victims of the Terrorist Attacks on

September 11", 2001: A Proclamation, available at

http://www. whitehouse.gov/news/releases/

2001/09/20010913-7.html . 2.2... eee

Mireya Navarro, A Nation Challenged: The

Families; Waiting for Babies Who Will Never

Know Their Father, N.Y. TIMES, Dec. 5,

IE .subadeeWet dtu nb igectcavs die.

Colin Powell, What We Will Do In 2004,

N.Y. Times, Jan. 1,2004,atA25 .............

Secretary of State Colin Powell,

Remarks to Security Council of the United

-Xi-

"eee e828 8008 8 6 @ 6

eee © ® © © © we we ee

19

1,2

10

RESTATEMENT (THIRD) OF FOREIGN RELATIONS

Nations (Sept. 11, 2002) available at

RRR Paras inh pe ee

http://www.state.gov/secretary/rm/

DEE, dccvanenunsseceeseuncnecees 14

James Risen & David Johnston,

A Nation Challenged: The Pennsylvania Crash;

44 Victims are Remembered, and Lauded,

N.Y. TIMES, Sept. 18,2001, at Bl] ............

Presidential Address to the Nation, October 7,

2001, available at http://www.whitehouse.gov/

news/releases/2001/10/20011007-8.html ........ 3

Wendy S. Ross, Sept. 1] Attacks Were Crimes

Against Humanity, Says UNHCR's Robinson,

(Oct. 17, 2002), at http://usinfo.state.gov/topical/pol/

terror/O1101706.htm ........... 0. cece eee ee

President George W. Bush, reprinted in President

Hails Passage of Homeland Security Legislation,

Nov. 19, 2002, at http://www.whitehouse.gov/

news/releases/2002/11/20021119-4.html ........ 3

William A Schabas, Punishment of Non-State Actors

in Non-International Armed Conflict,

26 FORDHAM INT’L L.J. 907 (2003) ............

President George W. Bush, Remarks at Signing

of the PATRIOT Act (Oct. 26, 2001) reprinted in

President Bush Signs Anti-Terrorism Bill

http://www. whitehouse.gov/news

releases/2001/10/20011026-S.html ............. 3 Somini Sengupta, /.N.S. Urges Immigrants

to Report the Missing, N.Y. TIMES,

Press Release, Ambassador Cofer Black to Lead - ee eee nena eae

the U.S. Delegation to the Fourth Regular Session

of the Inter-American Committee Against

Terrorism (Jan. 22, 2004), available at

http://www.state.gov/r/pa/prs/ps/2004/28429.html 14 available at http://www.usdoj.gov/

victimscompensation/payments_deceased.html ...

Press Release, U.S. Pledges $1.6 million to the

Inter-American Committee Against Terrorism, September | 1" Victims Compensation

(Jan. 22, 2004) at Fund Frequently Asked Questions,

http://www.state.gov/r/pa/prs/ps/2—4/28661/htm .. 14 available at http://www.usdoj.gov/

victimcompensation/fag.html .................

Kenneth C. Randall, Federal Jurisdiction over

International Law Claims: Inquiries into the September 11" Victims Compensation

Alien Tort Statute, 18 N.Y.U. J. INT’L L. & POL. Fund General Program Information:

LPG kde cecccuccusdswasesedsasuces 26, 27 Q&A’s Regarding Lawsuits Against

September | 1" Victims Compensation Fund

Award Payment Statistics

-Xiil-

Terrorist Conspiracy Participants, available at

http://www.usdoj.gov/victimcompensation/

Pree

September 11" Victims List, at op

http://66.223.12.161/september!] | victims/

CE RS oc ccessvcccvededcesasecees

September 11" Victims: Victims

by Country and Citizenship, at -

http://66.223.12.161/september!] 1 victims

COUNTRY_CITIZENSHIP.htm. ..............

-xiv-

a

INTEREST OF THE AMICI CURIAE'

The undersigned amici curiae are surviving family

members of the victims of the terrorist attacks on the United

States of September 11, 2001.2 The amici curiae wish to

ensure that every survivor of terrorist attacks, and the family

members of those who perish in terrorist attacks, regardless

of their nationality, are able to pursue civil suits against

terrorists. As such, the victims of the September 11" attacks

and their surviving family members believe that this Court

should interpret the Alien Tort Claims Act, 28 U.S.C. § 1350

(2003) (“ATCA”), consistent with the lower federal courts,

as Creating both a cause of action and granting jurisdiction to

federal courts. Any other interpretation would be patently

unjust to foreign nationals harmed by terrorist attacks.

On September 11, 200] , four commercial airliners

were hijacked by the terrorist group Al Qaeda. The terrorists

crashed two of the hijacked airplanes into the Twin Towers

of the World Trade Center in New York City. Several

minutes later, they crashed the third hijacked airplane into

the Pentagon in Washington D.C. NR. Kleinfeld, U.S.

Attacked: Hijacked Jets Destroy Twin Towers and Hit

Pentagon in Day of Terror, N.Y. TIMES, Sept. 12, 2001, at

Al. The fourth hijacked airplane, believed to be aimed at

another government target in Washington, D.C., crashed in a

field in Pennsylvania after Passengers wrestled control of the

plane from the hijackers. James Risen & David Johnston, A

@Quases

1. No counsel for any party authored this brief either in whole or in part,

and no Persons other than counsel for the amici made any monetary

contributions to its preparation or submission. The written consent of the

Parties to the filing of this brief have been filed with the Clerk.

2. Fora list of the amici and the family members that were killed in the

attacks, see the attached appendix. Any mention of other victims or their

families in the brief does not imply their support of it.

]

Nation Challenged: The Pennsylvania Crash; 44 Victims are

Remembered, and Lauded, N.Y. TIMES, Sept. 18, 2001, at

Bll.

The world watched in horror as the three buildings

burned and the Twin Towers collapsed. See Kleinfeld,

supra, at Al. For weeks following the attacks, rescue

workers searched and searched for survivors, but only five

were found. Dan Barry, After the Attacks: The Tally; With

No Miracle in the Rubble, Hope Shifts Grimly to Acceptance,

N.Y. TIMES, Sept. 17, 2001, at Al2. The remains of many of

those missing were never recovered. See September |1]"

Victims List, at http://66.223.12.161/september! | victims/

victims_list.htm._ The clean-up effort took eight-and-a-half

months to complete. Charlie LeDuff, Last Steel Column from

the Ground Zero Rubble is Cut Down, N.Y. TIMES, May 29,

2002, at B3. During that time, workers spent twenty-four

hours each day, including Thanksgiving, Christmas, and New

Years Day, cleaning up the rubble and searching for human

remains. See Mason Anderson, Ground Zero Crews Find

Relief at Red Cross, at http://www.disasterrelief.org/

disasters/020205groundzero.

The scope and severity of the September 11"

terrorist attacks were articulated by President Bush, who

declared that:

[c]ivilized people around the world denounce

the evildoers who devised and executed these

terrible attacks. Justice demands that those

who helped or harbored the terrorists be

punished -- and punished severely. The

enormity of their evil demands it. We will use

all the resources of the United States and our

cooperating friends and allies to pursue those

responsible for this evil, until justice is done.

National Day of Prayer and Remembrance for the Victims of

the Terrorist Attacks on September 11", 2001: A

2

Proclamation, available at http://www. whi

.whiteh

releases/2001/09/ 20010913-7 html. —

Subsequently, the U.S. destroyed Al Qaeda’ ini

camps in Afghanistan, and waged on rt on a

ruling Taliban regime which provided cover for Al Qaeda

See | Presidential Address to the Nation, October 7 2001,

available at http://www.whitehouse.gov/news/releasea/2001)

10/2001 1007-8. html. The U.S. Congress passed sweepin

anti-terrorism legislation aimed at the interception oa

obstruction of terrorist activities, USA PATRIOT Act of

2001, 115 Stat. 272, Pub. L. 107-56 (2001), and established a

cabinet-level Department of Homeland Security devoted to

the protection of American soil from future terrorist attacks

Homeland Security Act of 2002, Pub. L. 107-296 (HR

5005). See also President George W. Bush, Remarks at the

Signing of the PATRIOT Act (Oct. 26, 2001), reprinted in

President Bush Signs Anti-Terrorism Bill, available at

http://www. whitehouse.gov/news/releases/2001/

10/2001 1026-5.html; Statement by the President (Nov. 19

ray ss in President Hails Passage of Homeland

rity Legislation, at http://

releases/2002/11/20021119-4 html. ne BONES!

Approximately 2,996 innocent

4 people died on

any 11, 2001." See September 11" Victims List, at

ttp://66.223. 2. 161/september] | victims/victims_list.html.

Most of the victims were U.S. nationals. Among the dead

Steven Greenhouse & Mireya Navarro, After the Attacks: The Hidden

a 7 —~- at the Towers Margins Elude List of Missing, N.Y. Times,

17, 1, at All; Somini Sengupta, /.N.S. Urges Immigrants to Report

the Missing, N.V. TIMES, Oct. 6, 2001, at D4.

3

however, were at least 209 foreign nationals.‘ As most of the

known victims of the World Trade Center attacks were men

in their 30's and 40's, many of them married, the number of

pregnant women widowed by the attacks was “believed to be

substantial.” Mireya Navarro, A Nation Challenged: The

Families; Waiting for Babies Who Will Never Know Their

Father, N.Y. TIMES, Dec. 5, 2001, at B1.

The economic impact of the attacks was especially

dire for those who lost their sole means of financial support

in the attacks. For example, among those who perished in

the Twin Towers were more than seventy food workers who

worked at Windows on the World, the restaurant at the top of

one of the Twin Towers, whose staff was noted for its

“United Nations-like diversity.” Shaila K. Dewan, A Nation

Challenged: The Memorials; For the Families, A Chance to

Share Tears and Love, N.Y. TIMES, Oct. 2, 2001, at BI.

Their pursuit of the American dream was cut short by the

cold-blooded acts of the terrorists. Steven Greenhouse, A

Nation Challenged: Windows on the World; a Showpiece’s

Survivors Wonder What to do Now, N.Y. TIMES, Sept. 21,

2001, at B12. Peruvian national, Ivhan Luis Carpio Bautista

turned 25 on September 11, 2001. He was so determined to

support his family in Peru that he worked as much overtime

as he could, even on his birthday. Mr. Carpio Bautista

perished in the attacks. Glenn Collins, A Nation Challenged:

The Missing; As Providers, Friends, and Shoulders to Lean

On, They Put Others First, N.Y. TIMES, Sept. 26, 2001, at

4. Many of those lost were nationals of other countries, including:

Australia, Belgium, Brazil, China, Colombia, Ecuador, Phillippines, France,

Italy, Ivory Coast, Jamaica, Javan, Lebanon, Lithuania, Mexico, Moldova,

New Zealand, Nigeria, Peru, Portugal, Russia, Sweden, Taiwan, United

Kingdom, Ukraine, Uzbekistan, Venezuela, September / |” Victims. Victims

by Country and Citizenship, at http://66.223.12.161/september! | Victims

/COUNTRY_CITIZENSHIP htm; Sarah Prestwood, ‘I'd Rather Have My

Husband Back’, WELLINGTON DOMINION, Sept. 28, 2001, at 9.

4

Bll. Leobardo Lopez Pascual, who worked mornings at

Windows on the World, sent money, clothes, and shoes to his

wife and four children in Mexico, while he shared a studio

apartment with a co-worker. He too perished in the attacks.

Id. Sophia Addo, another Windows on the World employee,

sent hundreds of dollars to her native Ghana each month to

support her parents and ten-year-old daughter. /d. She too

perished in the attacks. These three victims were just a few

of the workers who lived paycheck-to-paycheck to support

their families. The families of these workers and others like

them should be permitted to use the ATCA to sue Al Qaeda

for their loss.

Al Qaeda’s net worth is not known. See Council on

Foreign Relations, The Money: Drying Up the Funds for

Terror, in COUNCIL ON FOREIGN RELATIONS: TERRORISM

QUESTIONS AND ANSWERS, at http://cfrterrorism.org/

responses/money.html. It is known, however, that chief

among its sources of financial support is Osama Bin Laden’s

own personal wealth, believed to be as much as $300 million.

id. Some of Al Qaeda’s money also comes from wealthy

sympathizers who use sophisticated techniques to

camouflage the flow of their own assets to Al Qaeda. /d. Al

Qaeda has also made broad use of illegal activities such as

extortion, drug smuggling, and fraudulent charity operations

to draw money into its coffers. /d. It has also relied on a

wide variety of legitimate economic activities to provide

cover for its funding of terrorist acts. For example, Al Qaeda

has used both the Yemeni honey trade and the traditional

hawala system of informal community trust banking to both

raise money and surreptitiously transfer funds worldwide. /d.

It was a terrorist cell of nineteen Al Qaeda operatives

that perpetrated the attacks on September 11, 2001. That

terrorist cell used $500,000 to pay for false identities, flight-

school tuition and, eventually, plane tickets to board the

hijacked aircraft. /d. This cost is less than a fraction of Al

Qaeda’s resources, but arguably more than some victims’

families will ever own.

Alien victims of the attack suffered as much as

nationals; their families feel the same loss. It is therefore

imperative that all of the families of the victims of the

September | 1" attacks be permitted to pursue suits against Al

Qaeda and its vast financial resources.’ Such lawsuits will

5. Although a number of funds have been established to assist families

and survivors of the September | 1" attacks, the compensation provided by

these funds is inadequate. The federally-funded September 11" Victims

Compensation Fund of 2001 was established to provide families of victims

and survivors with the opportunity to receive support through financial

installments rated to the expected earnings of the deceased or injured over

the course of his or her natural lifetime. September 11” Victim

Compensation Fund Frequently Asked Questions, available at http://www.

usdoj.gov/ victimcompensation/faq.html (last updated Feb. 10, 2004). While

claimants to this Fund waive right to take suit against the airlines, the United

States, or any other non-terrorist entity involved in the attacks, September

11° Victims Compensation Fund General Program Information: Q&A's

Regarding Lawsuits Against Terrorist Conspiracy Participants, available at

http://www.usdoj.gov/victimcompensation /lawsuit_ga.html (last updated

May 8, 2003), participation in the fund is no bar to pursuing suits agains? the

terrorist who perpetuated the September | |" attacks.

However, the compensation fund is not without its drawbacks,

especially for poorer victims. Because the amount of compensation is tied

to the expected earnings of the deceased over the course of their natural

lifetime, families of victims who earned less money at the time of the attacks

will receive less money in compensation through the Fund. September / |”

Victims Compensation Fund Award Payment Statistics, available at

http://www .usdoj.gov/ victimscompensation/payments_deceased.html (last

updated Feb. 25, 2004). Additionally, the deadline for participation in the

fund passed on December 22, 2003. Victims Compensation Fund Frequently

Asked Questions, supra. It is reported that nearly half of those eligible for

compensation never applied for a claim. David W. Chen, As Deadline for

9/11 Aid Nears, Many Relatives Haven't Filed, N.Y . TIMES, Nov. 22, 2003,

at Al. There was confusion over the deadline, the filing time was lengthy

process of filing. /d. Though several members of Congress cited this as a

major problem, the deadline was never extended, leaving thousands of

6

not only potentially provide financial compensation to the

victims’ families, but will also provide a sense of vindication

to the family members of the men and women who were

murdered on September 11".

Moreover, to win the war on terror, the United States,

and all governments, must take all necessary steps to “cripple

terrorist organizations and stem the flow of funds.”

MAURICE GREENBERG ET AL., TERRORIST FINANCING:

REPORT OF AN INDEPENDENT TASK FORCE SPONSORED BY

THE COUNCIL ON FOREIGN RELATIONS 34 (2002).

Independent lawsuits by victims of terrorist acts can be

extremely helpful to the government (which has limited

resources) in its effort to track down terrorists and their

sources of funding.

SUMMARY OF THE ARGUMENT

The amici respectfully request that this Court affirm

the Ninth Circuit Court of Appeals’ holding that the Alien

Tort Claims Act, 28 U.S.C. § 1350, creates a cause of action

to sue for a violation of the law of nations. Alvarez-Machain

v. United States, 331 F.3d 604, 612 (9th Cir. 2003), cert.

granted 124 S. Ct. 807 (2003).° Federal courts over the past

twenty-five years have repeatedly and consistently held that

ATCA confers on foreign victims of torts a right to sue for

violations of the law of nations. See e.g., Filartiga v. Pena-

Irala, 630 F.2d 876, 884-86 (2d Cir. 1980); Abebe-Jira v.

Negewo, 72 F.3d 844, 848 (11th Cir. 1996).

deserving claimants out in the cold. /d.

6. This Court also granted certiorari in the companion case United States

v. Alvarez-Machain, 124 S. Ct. 821 (2003). —.

7

The amici, family members of victims who were

killed by terrorists on September 11", believe that the ATCA

provides the only meaningful Opportunity for foreign

nationals who are victims of terrorism, and survivors of those

victims, to be compensated monetarily. Permitting victims to

sue terrorists civilly for their heinous acts also provides a

sense of vindication for terrorism victims and their survivors.

The U.S. should avail itself of all means to cripple and

eradicate terrorism, including permitting alien victims to sue

terrorists and to use their private resources to track down

terrorists and their assets.

Amici submit this brief in direct response to the briefs

submitted by the Solicitor General and the Petitioner who

argue that the ATCA somehow impedes the war on terrorism,

and that terrorists could manipulate the ATCA to sue the

U.S., U.S. officials, and their allies. Br- for the U.S. at 52-53,

Br. for Pet. at 38-39. This argument is baseless. First, the

U.S. and other sovereign nations are immune from suit under

the ATCA. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206-

07 (D.C. Cir. 1985); The Foreign Sovereign Immunities Act,

28 U.S.C. § 1602 (2003). Second, because Congress has

mandated that a “principal goal” of U.S. foreign policy is to

“promote the increased observance of internationally

recognized human rights by all countries,” 22 U.S.C. §

2304(a)(1) (2003), it is presumed that the United States, in

fighting the war on terrorism, will abide by the law of nations

and respect human rights. Finally, U.S. military actions

cannot be challenged in federal courts, as they are non-

justiciable political questions. Eminete v. Johnson, 361 F.2d

73 (D.C. Cir. 1966), cert. denied, 385 U.S. 929 (1966).

Congress has had the opportunity to review and

repeal the ATCA many times, including, most recently, in the

wake of the September 11" attacks when it reorganized our

government (creating the Department of Homeland Security),

and enacted the comprehensive USA PATRIOT Act. Pub. L.

}

107-56, 115 Stat. 272 (2001). Had Congress believed that

any statute, including the ATCA, could impede the war on

terrorism, it would have repealed that statute when it

overhauled our laws.

Whereas U.S. citizens may sue terrorists for treble

damages pursuant to U.S. statutory law if they are harmed by

terrorist attacks, see 18 U.S.C. §§ 2331 et seg. (2003) (The

Antiterrorism Act of 1992), this avenue is foreclosed to

foreign nationals. As the U.S. District Court for the District

of Columbia recently held, however, foreign nationals may

invoke the ATCA to sue terrorists if their acts violate well-

recognized norms of customary international law. Burnett v.

Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 99-100

(D.D.C. 2003) (holding that alien survivors of victims of the

September 11" terrorist attacks can sue Al Qaeda because

hijacking violates well-established norms of customary

international law).

Judicially repealing the ATCA would create two

classes of terrorism victims and their survivors: those who

can sue for a violation of their rights and those who cannot.

Repeal of the ATCA would mean that aliens injured by

terrorist attacks within the U.S. could not sue those terrorists.

It would also mean that aliens injured by terrorist attacks

abroad could not sue terrorists living within our borders.

Such disparate treatment of alien victims of terrorist attacks

trivializes their suffering and signals that they do not deserve

justice. .

This dichotomy would not only harm the alien

victims and their survivors, but would also call into serious

question the U.S.’s moral stature in leading the global fight

to eradicate terrorism. It simply cannot be perceived by our

allies in the war against terrorism that the U.S. does not wish

to protect the interests of their nationals. This would be

exactly the kind of result that the ATCA was enacted to

prevent.

ARGUMENT

1. THE UNITED STATES, WHICH IS AT THE

FOREFRONT OF FIGHTING TERRORISM,

SHOULD ENSURE THAT ALL VICTIMS OF

TERRORISM ARE ABLE TO SUE

TERRORISTS IN U.S. COURTS.

The United States and the international community

have a long history of condemning and fighting terrorism.

Even before the September 11" attacks, Congress ratified

treaties and enacted legislation aimed at fighting international

terrorism. By doing so, the United States has established

that “(t]he war on terrorism remains our first priority.” Colin

Powell, What We Will Do in 2004, N.Y. TIMES, Jan. 1, 2004,

at A25.

In 1998, the United States and seventy-five other

nations ratified the International Convention for the

Suppression of Terrorist. Bombings (“Terrorist Bombings

Convention”), reprinted in 37 1.L.M. 249 (1998). In 2002,

Congress passed legislation implementing the Convention.

Pub. L. 107-197, 116 Stat. 721 (H.R. 3275) (codified as 18

U.S.C. § 2332f (2003)). In 1999, the United States joined

sixty-four other nations in ratifying the International

Convention for the Suppression of the Financing of

Terrorism (“Terrorist Financing Convention”), reprinted in

39 I.L.M. 270 (1999). In addition, thirty years before the

attacks on the Pentagon and World Trade Center, the United

States played a leading role in passing the Convention for the

Suppression of Unlawful Seizure of Aircraft (Hijacking)

(“Hague Convention of 1970"), 22 U.S.T. 1641 (1970).

Moreover, under the Omnibus Diplomatic Security

and Antiterrorism Act (“ODSAA”) of 1986, Congress

established extraterritorial criminal jurisdiction for acts of

. 10

international terrorism against Americans. Pub. L. 99-399,

100 Stat. 853 (H.R. 4151) (codified as amended in 18 U.S.C.

§ 2332 (2003)). Upon signing the ODSAA into law,

President Ronald Reagan declared that “[(t]his mark[{ed] yet

another step forward in our bipartisan effort to eradicate

international terrorism.” Statement by President Ronald

Reagan (Aug. 27, 1986), reprinted in 1986 U.S.C.C.A.N.

1965. President Reagan urged cooperation with all nations to

bring an end to terrorism, and stated that “we must remain

resolute in our commitment to confront this criminal

behavior in every way.” Jd.

A few years later, believing that there was a need for

a companion civil legal cause of action for U.S. victims of

terrorism, the Judiciary Committee recommended the

adoption of the Antiterrorism Act of 1992, to provide a

federal cause of action for treble damages for any national of

the United States injured by an act of international terrorism.’

Pub. L. 102-572, 106 Stat. 4506 (S 1569) (codified at 18

U.S.C. § 2333 (2003)). When the legislation was passed,

President George H.W. Bush stated that he was “pleased that

.. . an American national [will be allowed] to file suit in the

United States for the recovery of treble damages against the

perpetrators of international terrorism.” Statement by

President George H.W. Bush (Oct. 29, 1992), reprinted in

1992 U.S.C.C.A.N. 3942.

In 1996, Congress enacted the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), Pub. L. 144-132,

7. The U.S. District Court for the Southern District of New York recently

found that the September 11" terrorist attacks were acts of “international

terrorism” as contemplated by this statute, even though the attacks took place

entirely within the United States. See Smith v. Islamic Emirate of

Afghanistan, 262 F. Supp. 2d 217, 225-26 (S.D.N.Y. 2003). The District

Court reasoned that the attacks were international in nature because they

were carried out by foreign nationals who received their orders, funding, and

some training from foreign sources.

1]

110 Stat. 1214 (S 735), to further deter terrorism. President

Bill Clinton declared that “[b]y enacting this legislation, the

United States remain[ed] in the forefront of the international

effort to fight terrorism through tougher laws and resolute

enforcement.” Statement by President William J. Clinton

(Apr. 24, 1996), reprinted in 1996 U.S.C.C.A.N. 961-1.

Under the AEDPA, Congress waived portions of the Foreign

Sovereign Immunities Act of 1976, under specified

circumstances, to permit suits in U.S. courts by U.S. citizens

against foreign states that engage in acts of terrorism. 28

U.S.C. § 1605(a)(7)(2003). The legislative history shows

that Congress enacted the AEDPA to ensure that terrorists

restore their victims to their prior state of well-being. S. Rep.

104-179 at 12, reprinted in 1996 U.S.C.C.A.N. 924, 931.

Since September 11", the United States has been at

the forefront of the world-wide effort to combat terrorism.

First, the U.S. has made significant efforts to combat

terrorism within our own borders. We have restructured our

own government, creating a new Department of Homeland

Security to monitor terrorism and other activities that

threaten national security. Homeland Security Act of 2002,

Pub. L. 107-296, 116 Stat. 2135 (H.R. 5005) (codified

primarily at 6 U.S.C. § 101 (2003)). In addition, the United

States Congress passed the USA PATRIOT Act “to deter and

punish terrorist attacks in the United States and around the

world” and “to enhance law enforcement investigatory

tools.” Pub. L. 107-56, 115 Stat. 272 (H.R. 3162) (codified

as amended in scattered sections of titles 8, 18, 22, 28, 31,

42, 47, and 50 of the U.S. Code).

Second, the United States has worked with and

encouraged other nations to condemn terrorism

con

internationally... The U.S. adopted United Nations General

Assembly Resolutions which demand that all States

cooperate to fight terrorism. For example, United Nations

General Assembly Resolution 58/48, “Calls upon all Member

States to support international efforts to prevent terrorists

from acquiring weapons of mass destruction and their means

of delivery."” | Moreover, at the urging of the U.S., the

September 11" terrorist attacks, and terrorist attacks on the

UN Assistance Mission for Iraq in Baghdad on August 19,

8. See, e.g., G.A. Res. 54/110, U.N. GAOR, 54th Sess., U.N. Doc.

A/RES/S54/110 (2000); G.A. Res. 54/164, U.N. GAOR, 54th Sess., U.N.

Doc. A/RES/54/164 (2000); G.A. Res. 55/158, U.N. GAOR, 55th Sess.,

U.N. Doc. A/RES/55/158 (2001).

9. This strong opposition to terrorism is also illustrated in UN General

Assembly Resolutions. In various resolutions bearing essentially the same

title, (“Measures to Prevent International Terrorism’’), the UN has called for

States to take measures against international terrorism when that terrorism

“endangers or takes innocent human lives or jeopardizes fundamental

freedoms.” See G.A. Res. 3034(X XVII), U.N. GAOR, 27th Sess., U.N. Doc.

A/RES/3034(XXVII) (1972); G.A. Res. 31/102, U.N. GAOR, 31st Sess.,

U.N. Doc. A/RES/31/101 (1976); G.A. Res. 32/147, U.N. GAOR, 32d Sess..,

U.N. Doc. A/RES/32/147 (1977); G.A. Res. 34/145, U.N. GAOR, 34th

Sess., U.N. Doc. A/RES/34/145 (1979); G.A. Res. 36/109, U.N. GAOR,

36th Sess., U.N. Doc. A/RES/36/109 (1981); G.A. Res. 38/130, U.N.

GAOR, 38th Sess. U.N. Doc. A/RES/38/130 (1983); G.A. Res. 39/159, U.N.

GAOR, 39th Sess., U.N. Doc A/RES/39/159 (1984); G.A. Res. 40/61, U.N.

GAOR, 40th Sess., U.N. Doc A/RES/40/61 (1985); G.A. Res. 42/159, U.N.

GAOR, 42d Sess., U.N. Doc. A/RES/42/159 (1987); G.A. Res. 44/29, U.N.

GAOR, 44th Sess., U.N. Doc. A/RES/44/29 (1989). Similarly, UN Member

States have reaffirmed their “unequivocal condemnation” of acts of

terrorism, including those that “may jeopardize the security of States.” See

G.A. Res. 49/60, U.N. GAOR, 49th Sess., U.N. Doc. A/RES/49/60 (1995).

See also G.A. Res. 49/185, U.N. GAOR, 49th Sess., U.N. Doc.

A/RES/49/185 (1995) (condemning acts of terrorism “aimed at the

destruction of human rights”); G.A. Res. 58/81, U.N. GAOR, 58th Sess.,

U.N. Doc. A/RES/58/81 (2004) (reaffirming “strong condemnation of the

heinous acts of terrorism that have caused loss of human life, destruction,

and damage”’).

13

2003 were strongly condemned as acts of terrorism in UN

resolutions 56/1 and 57/338 respectively. Secretary of State

Colin Powell later described the UN’s ratification of 56/1 as

“the world answer[ing] President Bush's call for a great

global coalition against terrorism.” Remarks to Security

Council of the United Nations (Sept. 11, 2002), available at

http://www.state.gov/secretary/rm/2002/13407.htm. The

General Assembly’s strong condemnation of these terrorist

acts has been reiterated in subsequent resolutions, in which

the United States has reaffirmed its “strong condemnation of

the heinous acts of terrorism that have caused enormous loss

of human life, destruction, and damage.” See G.A. Res.

57/27, U.N. GAOR, 57th Sess., U.N. Doc. A/RES/57/27°

(2003) and G.A. Res. 58/81, U.N. GAOR, 58th Sess., U.N.

Doc. A/RES/58/81 (2004).

The U.S.’s condemnation of terrorism is also

demonstrated through its funding appropriations. The U.S.

has provided significant financial support to international

organizations to support their efforts in combating

terrorism.'® Further, the U.S. has sent delegates to participate

in international organizations that work to combat

terrorism.'' The U.S.-led international war on terrorism

10. In January, 2004, the U.S. delegation to the Organization of American

States Inter-American Committee Against Terrorism pledged $1.6 million

to support the fight against terrorism. Press Release, U.S. Pledges $1.6

million to the Inter-American Committee Against Terrorism (Jan. 22, 2004),

at http://www.state.gov/r/pa/prs/ps/2004/28661 .htm.

11. The Department of State declared that sending its Coordinator for

Counterterrorism to the Organization of American States Inter-American

Committee Against Terrorism “reflects [the U.S.’s] continued commitment

to developing a hemispheric strategy to improve security and combat

terrorism.” Press Release, Ambassador Cofer Black to Lead the U.S.

Delegation to the Fourth Regular Session of the Inter-American Committee

Against Terrorism (Jan. 22, 2004), available at http://www.state.gov/

r/pa/prs/ps/2004/28429 htm.

14

strongly reflects the U.S.’s dedication to human rights. Yet,

the Petitioner and his amici ask this Court to judicially repeal

the very statute that affords aliens the only redress against

human rights abuses, including terrorism. This frustrates our

national goals and interests and calls into question our moral

ability to effectively lead the international war against terror.

In keeping with our government’s strong objective to fight

and end terrorism, all victims of terrorism, regardless of their

~ nationality should be able to sue terrorists and recover

monetary damages.

II. TO COMBAT TERRORISM MOST

EFFECTIVELY, AND IN KEEPING WITH

CONGRESSIONAL INTENT, VICTIMS OF

TERRORISM SHOULD HAVE ACCESS TO U.S.

COURTS, REGARDLESS OF THEIR

NATIONALITY.

As the September 11" attacks showed, terrorist acts

against the United States result in death or injury to foreign

nationals as well as U.S. citizens. Under our domestic law,

American citizens may seek redress through tort actions

against terrorists. The Antiterrorism Act of 1992 (“ATA”),

18 U.S.C. §§ 2331- et seg. (2003), permits American citizens

who were injured “by reason of an act of international

terrorism” to bring suit “in any appropriate district court of

the United States” and recover treble damages against

terrorists. See also Boim v. Quranic Literacy Inst., 291 F.3d

1000, 1021 (7th Cir. 2002) (those who knowingly finance a

terrorist group may be liable); Pugh v. Socialist People’s

Libyan Arab Jamahiriya, 290 F. Supp. 2d 94 (D.D.C. 2003)

(action by survivors of airline bombing victims against

Libyan officials who “conspired and succeeded in destroying

a civilian commercial aircraft filled to capacity with innocent

and unsuspecting passengers” may stand). Congress enacted

15

the ATA in 1992, twelve years after the Second Circuit held

in Filartiga v. Pena-lrala, 630 F.2d 876 (2d Cir. 1980), that

the ATCA provides aliens with a cause of action to sue for a

violation of U.S. treaties or the law ‘of nations. By 1992,

numerous federal courts had adopted this analysis. See e.g.,

Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 n.5 (D.C.

Cir. 1985); Forti v. Suarez-Mason, 762 F. Supp. 2d 1531,

1539 (N.D. Cal. 1987).

It is highly laudable that Congress has passed

legislation to protect U.S. citizens against terrorism and deter

this “violation of the law of nations.” Br. for the U.S. at 28

n.6. Such legislation, however, provides no parallel access to

U.S. courts for aliens who have been victimized, even when

the terrorist attack occurs in the United States. Thus, it is

only through the ATCA (which Congress was certainly

aware of when it passed the ATA) that aliens may seek

redress for terrorist attacks.

Should this Court reverse the nearly twenty-five years

of law granting a federal forum to aliens who suffered grave

human rights abuses, two classes of victims of terrorist acts

will exist: those who may vindicate their rights, and those

who may not. That dichotomy would be patently unfair and

grossly unjust. Nothing can compensate the alien victims of

terrorism for their loss, but this Court should permit their

universal human rights to be vindicated through the only

means available to them at this time.

16

A. The ATCA Affords Foreign Nationals Who

Are Victims of Terrorism the Only

Meaningful Opportunity to Vindicate Their

Rights and Recover Damages.

The ATCA gives foreign nationals the only

meaningful opportunity to collect for money damages against

acts of terrorism in the U.S. courts. Altnough there is no

universally recognized definition of “terrorism,”'* see United

States v. Yousef, 327 F.3d 56, 106-07 (2d Cir. 2003); Tel-

Oren v. Libyan Arab Republic, 726 F.2d 774, 795 (D.C. Cir.

1984) (Edwards, J., concurring), certain acts of terrorists,

particularly the acts committed by Al Qaeda members on

September | 1", have long been recognized by U.S. courts as

violating accepted norms of customary international law. See

Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86,

99-100 (D.D.C. 2003).

Plaintiffs in Burnett, survivors of the alien victims of

September 11" attacks, among others, filed suit “to hold

accountable the persons and entities that funded and

supported . . . al Qaeda.” 274 F. Supp. 2d at 99-100. Ruling

in accordance with the great majority of federal courts, the

district court denied the defendants’ motion to dismiss and

found that the ATCA creates a cause of action. /d. at 99.

The court also held that plaintiffs satisfied the third element

of the ATCA claim, that the “tort is committed in violation of

the law of nations or a treaty of the United States.” /d. at 99-

100.

Specifically, the Burnett court found that “the

September 11 attacks began with the hijacking of four

12. Because customary international law is ever-evolving, see Filartiga,

630 F.2d at 880, as nations of the world unite to combat terrorism, U_S.

courts may eventually conclude that “terrorism” violates established norms

of customary international law.

17

airplanes, and aircraft hijacking is generally recognized as a

violation of international law of the type that gives rise to

individual liability” under ATCA. /d. at 100 (citing Bigio v.

Coca-Cola Co., 239 F.3d 440, 447-48 (2d Cir. 2000); Kadic

v. Karadzic, 70 F.3d 232, 240 (2d Cir.1996); Doe v. Islamic

Salvation Front, 257 F. Supp. 2d 115, 120 (D.D.C. 2003);

Presbyterian Church of Sudan v. Talisman, 244 F. Supp. 2d

289, 309 (S.D.N.Y. 2003); Abdullah v. Pfizer, Inc., No.

01CIV8118, 2002 WL 31082956, at *4 (S.D.N.Y. Sept. 17,

2002)); see also RESTATEMENT (THIRD) OF THE FOREIGN

RELATIONS LAW OF THE UNITED STATES § 404 (1987) (“A

state has jurisdiction to define and prescribe punishment for

certain offenses recognized by the community of nations as

of universal concern, such as piracy, slave trade, attacks on

or hijacking of aircraft, genocide, war crimes, and perhaps

certain acts of terrorism. . . .”); United States v. Yunis, 924

F.2d 1086, 1092 (D.C. Cir. 1991) ("Aircraft hijacking may

well be one of the few crimes so clearly condemned under

the law of nations that states may assert universal jurisdiction

to bring offenders to justice, even when the state has no

territorial connection to the hijacking and its citizens are not

involved." (internal citations omitted)).

The Burnett court reaffirmed the principle that “[{t}he

ATCA may be applied to certain actions of private, non-state

actors.” 274 F. Supp. 2d at 100 n9 (citing Sanchez-

Espinoza, 770 F.2d at 206). Airline hijacking is one of a

very limited number of such actions, as it is almost never

committed by a state actor. The fact that the attacks of

September 11" were committed by private persons is thus

irrelevant to the terrorists’ liability under the ATCA. See

Burnett, 274 F. Supp. 2d at 100.

The terrorists’ egregious acts on September 11" also

violated other long-recognized norms of customary

international law. The international community has reached

a general consensus that the acts of Al Qaeda on September

11" were a crime against humanity. As Mary Robinson (the

U.N. Commissioner for Human Rights at the time of the

attacks) remarked: the September 11" attacks on the United

States were “an attack on the rule of law, democracy and

human rights,” constituting “a crime against humanity.”

Wendy S. Ross, U.S. Dep’t of State, Sept. /] Attacks Were

Crimes Against Humanity, Says UNHCR’s Robinson (Oct.

17, 2001), at http://usinfo.state.gov/topicai/pol/terror/

01101706.htm. Benjamin Ferencz, the former U.S. Chief

Prosecutor at the Nuremberg war crimes tnals, condemned

the attacks of September 11" as “clearly a crime against

humanity . . . because it is deliberate and intentional killing

of large numbers of civilians for political or other purposes.”

Interview by World Online with Benjamin Ferencz (Sept. 19,

2001), at http://www.ratical.org/ratville/CAH/cahCAH.html.

See also Human Rights Watch, Human Rights News,

September 11: One Year On: A Message to the Human

Rights Community (Sept. 9, 2002), at

http://www.hrw.org/press/ 2002/09/septll.htm (“The

September 11] attacks were a crime against humanity that

flouted the fundamental values of international human nghts

and humanitarian law.”); William A. Schabas, Punishment of

Non-State Actors in Non-international Armed Conflict, 26

FORDHAM INT’L L.J. 907, 923 (2003).

Since the post-World War I] Nuremberg trials of Nazi

criminals, crimes against humanity have been recognized to

encompass: “murder . . . or other inhumane act committed

against any civilian population, or persecutions on political,

racial or religious grounds whether or not in violation of the

law of the country where perpetrated.” United States v.

Flick, 6 Trials of War Criminals Before the Nuremberg

Military Tribunals Under Control Council Law No. 10, 1200

(1952) (quoting Control Council Law No. 10, art. II). “[Tjhe

ruling of the Nuremberg Tribunal memorialized the

recognition of ‘crimes against humanity’ as customary

international law.” Estate of Cabello v. Fernandez-Larios,

19

157 F. Supp. 2d 1345, 1360 (S.D. Fla. 2001) (citing Princz v.

Federal Republic of Germany, 26 F.3d 1166, 1173 (D.C. Cir.

1994)). As such, crimes against humanity are actionable

under the ATCA. See Kadic, 70 F.3d at 236; Princz, 26 F.3d

at 1182-83; Estate of Cabello, 157 F.Supp.2d at 1360;

Flores v. Southern Peru Copper Corp., 343 F.3d 140, 156

(2d Cir. 2003) (citing BRIGADIER GENERAL TELFORD

TAYLOR, U.S.A., CHIEF OF COUNSEL FOR WAR CRIMES,

FINAL REPORT TO THE SECRETARY OF THE ARMY ON THE

NUERNBERG WAR CRIMES TRIALS UNDER CONTROL

COUNCIL LAW No. 10 109 (Aug. 15, 1949) (William S. Hein

& Co., Inc. 1997) (“[C]ertain ‘crimes against humanity’ are

proscribed by customary international law in part because of

‘[t]he force of circumstance’ and ‘the grim fact of worldwide

interdependence.””)). °

The Rome Statute of the International Criminal Court

provides that a “crime against humanity” is any of certain

enumerated acts prohibited by international law, including

murder and torture, “when committed as part of a widespread

or systematic attack directed against any civilian population,

with knowledge of the attack.” U.N. Doc. A/CONF.183/9

(1998), art. 7 (emphasis added). Federal courts have adopted

this definition. See Mehinovic v. Vuckovic, 198 F. Supp. 2d

1322, 1353 (N.D. Ga. 2002) (invoking the language of the

Rome Statute in a suit brought under ATCA and TVPA by

Bosnian torture victims); see also Tachione v. Mugabe, 169

F. Supp. 2d 259, 279 n.76 (S.D.N.Y. 2001); Jwanowa v. Ford

Motor Co., 67 F. Supp. 2d 424, 440 (D.N.J. 1999). Clearly,

the September | 1" attacks meet this standard.

Importantly, in Kadic, the Second Circuit held that

crimes against humanity do not require state action.’ 70

13. Additionally, the International Criminal Tribunal for the Former

Yugoslavia expressly reaffirmed the principle of individual responsibility for

20

F.3d at 236 (following the customary international law

invoked by the U.S. at Nuremberg); see also Control Council

Law No. 10, art. II(2) (Prohibition against crimes against

humanity applies to “[a}ny person, without regard to . . . the

capacity in which he acted.”); /n re Krupp and Others, 15

LL.R. 620, 626-27 (U.S. Milit. Trib. Nuremberg 1948)

(private individuals liable for crimes against humanity); /n re

Krauch and Others (1.G. Farben Trial), 15 1.L.R. 668, 678-

79 (U.S. Milit. Trib. Nuremberg 1949).

B. The ATCA Is a Powerful Tool for the

United States in its War Against Terrorist

Organizations.

Terrorist groups such as Al Qaeda need vast resources

to finance their attacks. See GREENBERG ET AL., supra, at 34.

Crippling the financial networks which allow terrorist groups

[t}he principle of individual responsibility and punishment

for crymes under international law recognized at

Nuremberg is the cornerstone of international criminal

law. This principle which is the enduring legacy of the

Nuremberg Charter and Judgment which gives meaning

to the prohibition of crimes under international law by

incur responsibility and are liable to punishment.

Prosecutor v. Dusko Tadic, 36 1.L.M. 908, 947 (1997). International law

does not require a crime against humanity to be both widespread and

systematic. /d. at 942 (emphasis added). One of these alternatives suffices

to meet the requisites of the “directed against a civilian population” prong.

Id. The Tribunal also noted that crimes against humanity could be

committed “in a systematic manner or on a large scale.” /d. The “large

scale” requirement is “sufficiently broad to cover various situations

involving multiplicity of victims, for example, as a result of the cumulative

effect of a series of inhumane acts or the singular effect of an inhumane act

of extraordinary magnitude.” /d. at 943.

21 r

to operate is essential to preventing future attacks. The

ATCA 1s key to this effort, as it enables alien victims of

terrorist attacks to sue their attackers and anyone who

financially supported the attacks. The ATCA also provides

alien victims with an incentive to assist the U.S. and our

allies in investigating and dismantling Al Qaeda’s financial

networks.

The Petitioner and the Solicitor General argue

baselessly that terrorists could invoke the ATCA to sue the

United States, its officials, or our nation’s allies in the war on

terrorism. Br. for Pet. 38-39, Br. for the U.S. at 52-53. It isa

gross distortion of the law to argue that the ATCA somehow

impedes the war on terrorism. First, the United States and

other sovereign nations are immune from suit under the

ATCA. Sanchez-Espinoza, 770 F.2d at 207; The Foreign

Sovereign Immunities Act, 28 U.S.C. § 1602 (2003).

Second, because Congress has. mandated that “a principal

goal” of United States foreign policy “shall be to promote the

increased observance of internationally recognized human

rights by all countries,” 22 U.S.C. § 2304(a)(1) (2003), it is

presumed that the United States, in fighting the war on

terrorism (either through its own agents and officers or those

of friendly nations), will respect human rights and abide by

the law of nations.'* Third, military actions of the United

14. Congress has consistently favored candid, public scrutiny of nations’

compliance with fundamental human rights to be an integral part of U.S.

foreign policy. To that end, Congress has directed the State Department to

comprehensively review and report annually on the status of internationally

recognized human rights in virtually every nation in the world, 22 U.S.C.A.

§ 215In; 19 U.S.C.A. § 2464, and on the status of religious freedom in

individual countries. 22 U.S.C.A. § 6412. Congress has also denied funding

to countries that commit a consistent pattern of gross violations of

internationally recognized human rights. 22 USCA § 2151n, 22 U.S.C. §

2304. In the 2002 State Department Reports, the United States

comprehensively evaluated foreign nations’ policies on terrorism. Thus, it

is disingenuous to claim, as Petitioner does (Brief for Pet. at 34-43), that

22

States cannot be challenged in federal courts as they are non-

justiciable political questions. Eminente v. Johnson, 361

F.2d 73 (D.C. Cir. 1966), cert. denied, 385 U.S. 929 (1966).

Thus, lawsuits filed by terrorists under the ATCA would

quickly be disposed of by the district courts.

In the wake of the September | 1" attacks, Congress

undertook a broad reorganization of the government’s law

enforcement powers. See USA PATRIOT Act, Pub. L. 107-

56, 115 Stat. 272 (2001). Had Congress believed that any

statute, including the ATCA, could impede the war on

terrorism, it would have repealed the statute in its overhaul of

our laws. To the contrary, Congress has ignored recent calls

by lobbyists to repeal or ainend the ATCA. See, e.g., Big

Oil's Dirty Secrets, ECONOMIST, May 10, 2003, at 53, 54;

Daphne Eviatar, Profits at Gunpoint: Unocal’s Pipeline in

Burma Becomes a Test Case in Corporate Liability, NATION,

June 30, 2003, at 16. By declining to repeal the ATCA, even

after the September 11" attacks, Congress once again

affirmed its confidence in the district courts to fairly

adjudicate human right claims on a case-by-case basis

pursuant to the ATCA. This Court would exceed its proper

role were it to repeal a cause of action that has existed for

well over 200 years to protect foreign policy concerns that

Congress apparently does not share. See Barclays Bank PLC

v. Franchise Tax Bd. of Cal., 512 U.S. 298, 329 (1994)."°

permitting suits by alien-victims of terrorist attacks would impede executive

foreign policy. See Doe v. Unocal Corp., 963 F. Supp. 880, 893 (C.D. Cal.

1997) (when “the coordinate branches of government have already

denounced the foreign state’s human rights abuses, it is hard to imagine how

judicial consideration of the matter will . . . substantially exacerbate

relations. . . .”).

15. In Barclay's Bank, this Court disavowed any competence to determine

whether a state law interfered with U.S. foreign relations or whether

conversely Congress had decided to allow the state to act. 512 U.S. at 324-

31. Noting that “[t}he judiciary is not vested with the power” to decide how

23

The act of state and political question doctrines

permit courts, on a case-by-case basis, to dismiss specific

claims where adjudication would exceed the judiciary’s

proper role. Petitioner’s suggestion that this Court should

preclude all ATCA claims based on alleged foreign policy

effects, Br. for Pet. at 34-43, however, conflicts with this

Court’s well-established separation of powers principles.

Courts ordinarily have the obligation to decide a properly

presented case, even where the controversy may potentially

implicate foreign affairs. See W.S. Kirkpatrick & Co. v.

Environmental Tectonics Corp., 493 U.S. 400, 409-10

(1990). Courts cannot “shirk this responsibility merely

because [a] decision may have significant political

overtones,” Japan Whaling Ass'n v. American Cetacean Soc.,

478 U.S. 221, 230 (1985), or because it may embarrass

foreign governments. W.S. Kirkpatrick & Co., 493 U.S. at

409-10. This Court has never declared that the mere

possibility certain cases will impact foreign affairs grants it

the authority to wholly foreclose a cause of action created by

Congress. Not surprisingly then, courts have unanimously

rejected the argument Petitioner and his amici make now:

that ATCA claims are inherently non-justiciable. See, e.g.,

Alvarez-Machain v. Uniied States, 331 F.3d 604, 614 (9th

Cir. 2003); Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th

Cir. 1996)."°

to balance the competing concerns involved, id. at 328, the Court presumed

that Congress’ inaction evinced “a willingness to tolerate” a state law that

had engendered considerable diplomatic protest from other nations. /d. at

324 n.22, 327. If Congressional inaction implies tolerance of state intrusion

into foreign relations, surely Congressional inaction demonstrates toleration

of purported foreign policy effects of a statute Congress itself enacted. /d.

at 328.

16. As existing justiciability doctrines clearly do not permit the wholesale

evisceration Petitioner and his supporting amici seek, Petitioner claims that

the “same concerns” underlying the act of state doctrine counsel in favor of

24

—_— “ea

A blanket preclusion of the claims of deserving

plaintiffs would have a profound impact on the war on

terrorism. Repeal of the ATCA would mean that aliens

injured by terrorists attack within the U.S. could not sue the

terrorists in our courts. It would also mean that alien victims

of terrorists acts that occur abroad could not sue terrorists

who are present on our shores. It would be disingenuous of

our government to close its courts to foreign nationals

harmed by terrorists at a time when the United States seeks

global cooperation to fight terrorism. This is especially so,

as the U.S. expressly claims the right to prosecute terrorists

who use bombs in the U.S., even if the victim is an alien. 18

U.S.C. § 2332f(b)(1)(F).

Just as the government has the right to pursue and

punish those involved in terrorist acts in the U.S. against

alien victims, the victims themselves should have civil

remedies in U.S. courts. Disparate treatment of alien victims

of terrorist attacks trivializes the alien victims’ suffering and

signals that they do not deserve justice. Alarmingly, it gives

the impression that the United States is committed to ending

terrorism only within our borders, and not throughout the

world. Such an impression severely compromises the U.S.’s

moral stature in its efforts to fight terrorism. It simply cannot

be perceived by our allies that we are unconcerned with

protecting their nationals.

that result. Br. for Pet. at 37. This Court, however, has rejected the notion

that “the underlying policies are a doctrine unto themselves, justifying

expansion of the act of state doctrine (or, as the United States puts it,

unspecified ‘related principles of abstention’) into new and uncharted

fields.” W.S. Kirkpatrick, 493 U.S. at 409.

25

C. Congress Has Repeatedly Sanctioned the

Courts’ Interpretation that the ATCA

Creates a Cause of Action.

The First Congress passed the ATCA as part of

section 9 of the Judiciary Act of 1789, which established the

court system of our fledgling nation and created federal

jurisdiction over issues of national importance, including

suits brought by aliens.'’ See Randall, supra, at 12; David

Cole et al., /nterpreting the Alien Tort Statute: Amicus

Curiae Memorandum of International Law Scholars and

Practitioners in Trajano v. Marcos, 12 HASTINGS INT’L &

Comp. L. REV. 1, 14 (1988). The ATCA was intended to

help secure the credibility of our nation within the

international community at a time when the United States

was young and weak. “Respect for international law was

seen by the founding and early generations of the Republic as

being an essential ingredient in the legitimacy of the nation.”

David J. Bederman, National Security: Globalization,

International Law and United States Foreign Policy, 50

Emory L.J. 717, 719 (2001).

Courts and legal scholars have gleaned the purpose

for the passage of the ATCA from the concerns and beliefs of

our leaders at the time it became law. See Tel-Oren, 726

F.2d at 782-84 (Edwards, J., concurring); Filartiga, 630 F.2d

at 887-88; see generally Anne-Marie Burley, The Alien Tort

Statute and the Judiciary Act of 1789: A Badge of Honor, 83

17. Our early leaders’ desire to uphold the law of nations is also reflected

in the debates at the Constitutional Convention. See Kenneth C. Randall,

Federal Jurisdiction over International Law Claims: Inquiries into the Alien

Tort Statute, 18 N.Y.U. J. INT’L L. & POL. 1, 12 (1985). John Jay declared

that “committing such questions to the jurisdiction and judgment of the

courts appointed by and responsible only to one national government cannot

be too much commended.” THE FEDERALIST No. 3, at 43 (John Jay)

(Clinton Rosseter ed., 1961).

26

AM. J. INT’L L. 461 (1989); Anthony D’Amato, Comment,

The Alien Tort Statute and the Founding of the Constitution,

82 AM. J. INT’L L. 62 (1988). The Founding Generation

knew there were consequences for failing to offer adequate

judicial remedies to aliens injured by violations of

international law. See, e.g., Burley, supra, at 487; Randall,

supra, at 12. By granting aliens access to a functioning court

system, the Founders demonstrated to the international

community that the United States would protect the interests

of citizens of other nations in a fair manner. The Founders

also ensured that “individuals who flouted international law

would find no quarter in the United States.” Burley, supra, at

487. These concerns are as valid today as they were in 1789.

Ignoring this legislative history, the Solicitor General

curiously claims that the ATCA was only meant to apply to

acts within the territory of the United States. Br. for the U.S.

at 55. Even assuming arguendo that such a reading of the

ATCA were correct (which it is not), this would not preclude

alien victims of terrorist attacks from seeking redress when

attacks take place in the United States. Yet the Solicitor

General asks this Court to deny even this opportunity for

alien victims and their survivors to recover for their loss.

The Solicitor General further argues that, at best, the

district courts can hear disputes arising from matters on the

high seas. See Br. for the U.S. at 34. It impliedly asks this

Court to find that the ATCA only applies to international law

as of 1789. This simply does not follow. The ATCA’s

language is not aimed at violations of international customary

law or treaties of the United States regarding acts upon the

high seas; or treaties involving technology of the 18th

Century. By its plain meaning, the Alien Tort Claims Act

contemplates any “violation of the law of nations or a treaty

of the United States.” 28 U.S.C. § 1350. The statute’s

language clearly contemplated that courts would apply

international law as it evolved. The Hague Convention of

27

1970 (codifying the international condemnation of aircraft

hijacking) is as equally binding on the United States as was

the Treaty of Paris of 1800, 7 Bevans 801 (expired July 31,

1809) (an agreement between the U.S. and the Empire of

France to keep pirates out of their respective ports and punish

any citizens who gave pirates aid). See U.S. CONST. art. VI,

cl. 2 (treaties are “the supreme Law of the Land”). The

nature of international law is that it must be examined “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

(citing Ware v. Hylton, 3 U.S. (3 Dall.) 199, 1 L. Ed. 568

(1796) (distinguishing between ‘ancient’ and ‘modern’ law

of nations)). Every court that has considered the question has

so held.

Congress reaffirmed the ATCA’s continued viability

when in 1991 it passed the Torture Victims Protection Act,

which it modeled after the ATCA. Congress noted that the

ATCA “has other important uses that should not be

replaced,” and that it “should remain intact to permit suits

based on other norms that already exist or may ripen in the

future.” H.R. Rep. 102-367(1), at 4 (1991), reprinted in 1992

U.S.C.C.A.N. 84, 86. The Solicitor General misleadingly

remarks that Congress twice chose not to alter the ATCA’s

language, citing only to Congress’s consideration of the

statute in 1911 and 1948. Br. for the U.S. at 18-19. The

Solicitor General fails to discuss that Congress also

reaffirmed the ATCA in 1991. The members of Congress in

1991 acted in accord with the wishes of the members of

Congress of 1789, 1911, and 1948, recognizing that the

inexorable march of time permits courts to apply evolving

norms of international law in an ever-changing world.

28

NR mee

CONCLUSION

Our nation is engaged in a global war on terrorism.

Congress enacted the ATCA so that foreign nationals would

have the authority to seek redress for violations of the law of

nations, which the attacks of September 11" most certainly

were. The efforts to defeat groups like Al Qaeda, and to

shatter their support networks, will not succeed with half-

hearted efforts to find them and seize their assets. The

Solicitor General, by asking this Court to unjustly deny alien

victims of terrorist attacks the right to a civil remedy,

undermines the very goals he purports to protect. The ATCA

is an effective weapon for pursuing those responsible for the

attacks of September 11" and holding them responsible for

their murderous actions. Thus, this Court should not

judicially repeal the ATCA, nor should it overrule the

twenty-five years of case law that holds the ATCA creates a

cause of action.

Respectfully submitted,

PENNY M. VENETIS

Counsel of Record

Constitutional Litigation Clinic

Rutgers School of Law - Newark

123 Washington Street

Newark, NJ 07102

(973) 353-5687

Counsel for Amici Curiae

February 27, 2004 ~

29

Appendix A

List and Descriptions of Amici Curiae

List of Amici Curiae

Barry Amundsen (brother of Craig Amundsen)

Kimi Beaven (wife of Alan Beaven)

Kelly Campell (sister-in-law of Craig

Amundsen)

Charles Greene (brother of Donald Greene)

Douglas F. Greene (brother of Donald Greene)

Regan Grice-Vega (wife of Peter Vega)

John Leinung (father of Paul Battaglia)

Elaine Leinung (mother of Paul Battaglia)

Alissa Rosenberg-Torres (wife of Luis Torres)

Paula Shapiro (mother of Eric Eisenberg)

Jack Shapiro (grandfather of Eric Eisenberg)

Dorothy Shapiro (grandmother of Eric Eisenberg)

Descriptions of Victims

Craig Amundsen worked as a computer graphics illustrator

for the Army's deputy chief of staff for personnel command

at the Pentagon. A husband and father of two children, Mr.

Amundsen, age 28, is also survived by family and friends in

Missouri and lowa, where he was raised.

Paul Battaglia started off as an intern during high school

with Marsh & McLennan, which he parlayed into a full-time

position as risk consultant upon graduation from SUNY

Binghamton. He was 22 years old when he died. ;

Alan Beaven, age 48, was killed on fligit 93 in Pennsylvania

while trying, with other passengers, to take control of that

flight after it was hijacked. A citizen of New Zealand, Alan

Beaven was an accomplished environmental lawyer who

specialized in clean-water cases. Before his death, Mr.

Beaven was about to try one last case before taking a year-

long sabbatical. Mr. Beaven had three children.

Eric Eisenberg, employed by Aon, was 32 years old when

he died. He was an expert computer technician. His mother,

who spoke with him after the first plane hit the tower,

believes he stayed behind to help evacuate other neople.

Donald Greene died on Flight #93, which crashed in

Pennsylvania. The CEO and first vice president of Safe-

Flight, an aviation company based in New York, Mr. Greene

was a licensed pilot. He was the father of two children.

Luis Torres was, briefly, a paratrooper in the Columbian

military. A native of Colombia, he came to the U.S. via

Mexico in the late 1980's. He started a new job as a senior

currency broker at Cantor Fitzgerald on September 10, 2001.

Peter Vega was a firefighter with Ladder Company 118 in

Brooklyn. A husband and father, Mr. Vega, age 36, was

married for five years before his death. He was a veteran of

the U.S. Air Force.