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The United States under the Bush administration has developed a paradoxical approach to human rights. The war on Iraq, which started as the search for Saddam Hussein’s yet-to-be-discovered weapons of mass destruction, is now hailed as the liberation of the Iraqi people from his oppressive regime and evidence of the administration’s dedication to human rights. At the same time, the administration is mounting a fierce attack on a long-standing law under which U.S. courts have, over the last 25 years, agreed to hear cases brought by victims of oppressive regimes such as Paraguay, Bosnia, Nigeria, Ethiopia, Burma, Indonesia and China. Traditionally, under the Alien Tort Claims Act, U.S. courts have heard cases brought by torture victims and others involving egregious human rights violations perpetrated by foreign officials; these suits occurred when those officials had the poor judgment to travel in the United States (making them subject to suit here). Now, however, the Bush administration is trying to put the brakes on lawsuits brought under the act by foreign individuals who allege that they were grievously injured by individuals found in the United States and by U.S. corporations complicit in gross human rights abuses. In 1789, long before the United States became the world’s sole superpower, at a time when the fledgling republic needed the protection of international law, Congress included in the first Judiciary Act a one-sentence law giving the federal district courts “jurisdiction of any civil action, for a tort only, committed in violation of the law of nations or a treaty of the United States.” The act lay largely dormant until 1979, when the Center for Constitutional Rights was alerted by Amnesty International to the fact that a Paraguayan police official accused of torturing to death the son of an opponent of General Alfredo Stroessner, Paraguay’s brutal dictator, was in Brooklyn, N.Y., awaiting deportation for overstaying his visa. The case led to a landmark decision, Filartiga v. Pe�a-Irala, holding that torture was a violation of international law and awarding the plaintiffs-the father and sister of the victim-$10 million in damages. (The damages are still uncollected). The Filartiga case, based on the principle that Congress properly provided remedies for victims of international law violations, is now taught in human rights classes throughout this country and around the world. No court so far has taken issue with this principle in the many subsequent cases that have applied it, and the vast majority of academic commentators have endorsed it. Curious amici Now the U.S. Department of Justice (DOJ) has filed a series of amicus briefs-mostly in cases accusing U.S. corporations of human rights violations abroad-taking a position diametrically opposite to that of the Department of State and DOJ at the time of Filartiga. The Justice Department asserts that the law confers subject-matter jurisdiction but no private right of action; that U.S. courts have no business deciphering and enforcing their own concepts of international law, which is notoriously vague and ambiguous; and that the cases under the act constitute an impermissible interference by the judiciary with the president’s plenary power over foreign affairs and may obstruct the fight against terrorism. The first point-a technical one-was analyzed by the 2d U.S. Circuit Court of Appeals opinion in Filartiga, which reached the opposite conclusion. Filartiga has been followed in five other circuits. In its various briefs, DOJ has not explained what the 1789 Congress might have had in mind by creating a jurisdictional grant for the benefit of aliens while barring their access to the courthouse door. The second point echoes this administration’s general aversion to international treaty law and customary law. There are ways, tested by time and experience, of demonstrating what is a gross violation of an international human-rights norm. The cases to which the government objects involve such violations as summary execution, torture, mass rape, slave labor and arbitrary arrest and detention. DOJ would be hard-pressed to show that these are not universally recognized as contrary to international law. The third point is the most troublesome, because it urges courts to return to the period preceding the Universal Declaration of Human Rights, when international law was viewed largely as governing relations between governments, leaving individuals without remedies for violations of international law committed against them. President Bush is evidently not content with attempting to derail a series of suits under the Alien Tort Claims Act pending in various circuits, and discourage future ones. On May 22, he issued Executive Order 13303, which, among other things, immunizes any U.S. commercial entity from the execution of any judgment against Iraqi petroleum and petroleum products within the possession of such entity. Self-help for victims through access to the courts, whether they be citizens or aliens, is an integral part of our proud democratic tradition. It is to be hoped that, as we preach to other nations the importance of an independent judiciary, our courts will ignore the urging of the administration to reject claims of gross human rights violations brought against persons (including corporations) found within our borders. Peter Weiss, an international and human rights lawyer, is a vice president of the Center for Constitutional Rights.

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