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The business community, feeling the sting of international human rights litigation, and the Bush administration will try to persuade the U.S. Supreme Court this week to eliminate tort liability under a 215-year-old statute. The alignment, presaged in recent cases in the lower courts, comes in Sosa v. Alvarez-Machain, a challenge seeking to reverse more than 20 years of court interpretation of the Alien Tort Statute of 1789. Under those rulings, the statute has permitted aliens to sue for damages in U.S. courts for injuries that violate international law. Sosa itself has nothing to do with corporations. But recent cases under the statute have accused large companies of committing human rights abuses in their business activities abroad. The business community, which has filed a number of amicus briefs in Sosa, clearly sees the case as an opportunity to achieve the kind of “tort reform” Congress has shown little interest in legislating. The Bush administration, too, is attacking the modern application of the statute, arguing that it interferes with foreign relations, creates separation of powers problems and threatens the war on terrorism. Federal appeals courts including the 9th U.S. Circuit Court of Appeals, from which Sosa comes, “have launched a misguided legal revolution,” said Jose Francisco Sosa’s high court counsel, Carter G. Phillips of Sidley Austin Brown & Wood. If business and the administration succeed in the high court, the doors to federal courthouses largely will be closed to these types of suits. Human rights litigators say that would not only be an incorrect reading of the statute and a flouting of the First Congress’ intent but a tragedy for foreign victims of rape, torture and other abuses. The circuits’ “remarkable uniformity of view” has made the Alien Tort Statute “a beacon to the world,” said Humberto Alvarez-Machain’s high court counsel, Paul L. Hoffman of Los Angeles’ Schonbrun De-Simone Seplow Harris & Hoffman. The case also reveals a sharp split among scholars over the role of federal courts in applying international law. And it has struck a chord with victims’ organizations, including some of the family members of those killed in the Sept. 11 terrorist attacks. In an amicus brief, the families challenge the Bush administration’s view of the way the statute undermines the war on terrorism. “Many of the victims’ families found this very offensive, and we wanted to make sure the court was aware of it,” said the brief’s author, Penny M. Venetis of Rutgers Constitutional Law Clinic. She said the statute “provides the only remedy to certain individuals who have lost their loved ones to acts of terrorism.” The Alien Tort Statute, also known as the Alien Tort Claims Act, originally appeared in Section 9 of the first Judiciary Act of 1789, which created the U.S. judicial court system. It provides that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” DORMANT TILL 1982 The act was largely dormant until 1982, when the 2nd Circuit decided Filartiga v. Pena-Irala and provided what the Bush administration calls “the modern conception” of the act, “a far-reaching cause of action on behalf of aliens for violations of international law anywhere in the world.” Dolly Filartiga had fled Paraguay and sought political asylum in the United States in 1978. She discovered that Americo Norberto Pena-Irala, the inspector general of police in Ascension, Paraguay — who she said tortured and murdered her brother — had also entered the United States. Represented by lawyers at the Center for Constitutional Rights, she sued Pena-Irala under the act, seeking compensatory and punitive damages for the torture and death. Her lawyers, Rhonda Copelon and Peter Weiss, contended that just as piracy was a violation of the law of nations when the act was adopted, torture was a crime against the law of nations in 1979, when the case was argued. The 2nd Circuit agreed, and Filartiga subsequently won a $10.4 million judgment. But by the time of the award, Pena-Irala had been deported. “I think it was certainly clear in 1789 that individuals could violate international law in some ways and could be held responsible either criminally or civilly or both for doing so,” said William S. Dodge of the University of California Hastings College of Law, who has joined an amicus brief of federal jurisdiction and legal history scholars supporting Alvarez-Machain. “During the 19th century, international law came to be viewed more exclusively as regulating state-to-state interactions.” After the Nuremberg trials, the idea of individual responsibility took hold once again, he added. Dodge identified three waves of alien tort litigation. First, the prototypical Filartiga case — torture, killing or disappearance abroad committed by one alien against another alien. The second wave of suits came in the mid-1990s, said Dodge, and were brought against U.S. corporations and some foreign corporations for participating in human rights abuses abroad. Unocal, Chevron, Texaco, Union Carbide, Exxon Mobil, Gap Inc., Coca-Cola, Del Monte and others have been sued for complicity in various alleged human rights violations. The final wave — a much smaller group of cases — includes suits against U.S. government officials or those acting at their direction. The Sosa case is part of the third wave. Sosa was one of several Mexican nationals working for the Drug Enforcement Administration when DEA officials authorized the kidnapping of Alvarez-Machain for alleged involvement in the torture and murder in Mexico of a DEA agent. Alvarez-Machain was kidnapped from his office in Guadalajara in 1990 and taken to El Paso, Texas. He stood trial and was acquitted. Alvarez-Machain sued Sosa and others in 1993 under the Tort Claims Act, claiming an illegal arrest and detention. At trial, Alvarez-Machain won a $25,000 judgment for emotional distress, an award affirmed by the 9th Circuit. In the high court, Phillips, counsel to Sosa, argues that the Alien Tort Claims Act is strictly jurisdictional in nature. The statute, he said, does not create a cause of action or contain any rights-creating language that shows Congress intended to create a private cause of action. ‘RECEIVED LEARNING’ The federal circuits that have ruled otherwise, said Phillips, “haven’t given this a whole lot of thought.” The 9th Circuit, he said, “is perfectly comfortable inferring causes of action from any statutory scheme. None of the courts of appeals has really analyzed this. This is sort of received learning. They picked up where everybody started. If you go back to square one, there’s no way you can infer a cause of action.” The solicitor general agreed and argued in the government’s brief that not only is the statute strictly jurisdictional but that courts cannot infer a cause of action based on sources of customary international law. Doing that, he said, is “profoundly out of line with the separation of powers.” The Constitution assigns to the political branches, not the courts, responsibility for managing the nation’s foreign affairs, he argued. Hoffman, Alvarez-Machain’s counsel, called their arguments “absurd.” “If you accept their argument, the First Congress in the Judiciary Act basically passed this thing that had no meaning then and no meaning now,” he said. “So for 215 years we’ve had this statute on the books, and it doesn’t mean anything. “Their argument is until Congress passed a cause of action, no one could do anything. That’s absurd. You didn’t even have a concept of a cause of action until 50 years later. The Founders understood the law of nations was part of common law.” Hoffman added that Phillips’ argument that the federal circuits have not given the statute “a whole lot of thought” is a hard sell and “a little bit insulting.” There has been remarkable uniformity, he said, among the judges who have interpreted the statute, and they sit across the political spectrum. The open-ended nature of what some international law scholars consider to be a tort based on the law of nations has disturbing implications, said Paul B. Stephan of the University of Virginia School of Law. He filed an amicus brief supporting Sosa by another group of federal jurisdiction and international law scholars. “The benign story is you trust the common law power of judges to figure this out,” he said. “The less benign story is opportunistic attorneys can exploit this not really for human rights work but for old-fashioned holding up of corporations. “I’m concerned about the deterrent effect on firms engaging in transactions that might be good transactions. This is just another cost.” The statute is jurisdictional, said William Casto of Texas Tech University School of Law, but that means the courts then have to find the basis of the claim. “I assume the government wants to take vigorous and aggressive action overseas in the war on terrorism, action that may violate international law,” he said. “The government doesn’t want lawsuits in the United States over vigorous conduct.” Ultimately, he said, it is Congress that determines the federal courts’ jurisdiction. A decision is expected by July. This article originally appeared in The National Law Journal , a publication of American Lawyer Media.

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