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In a case watched closely by human rights groups and business organizations alike, the Supreme Court on Tuesday struggled to decide when foreigners can use U.S. courts to litigate over foreign violations of international law. Some justices seemed inclined to favor at least a limited right to bring such suits, while others saw the litigation as “serious interference with the political branches to conduct foreign affairs,” as Justice Antonin Scalia put it. Justice Sandra Day O’Connor repeatedly voiced the wish that Congress would take care of the situation through new legislation. The key issue in Sosa v. Alvarez-Machain, No. 03-339, and United States v. Alvarez-Machain, No. 03-485, is the meaning of one of the nation’s oldest laws: the 1789 Alien Tort Statute, which gives federal district courts original jurisdiction over civil actions filed by aliens for torts “committed in violation of the law of nations or a treaty of the United States.” The law was rarely invoked until 1980, when a ruling by the 2nd U.S. Circuit Court of Appeals in Filartiga v. Pena-Irala interpreted it to authorize litigation between citizens of Paraguay over torture in that country. The dispute before the high court Tuesday arose in the aftermath of the 1990 kidnapping in Mexico of Humberto Alvarez-Machain. He had been indicted in the United States for the 1985 torture and murder — also in Mexico — of drug enforcement agent Enrique Camarena-Salazar. The U.S. Drug Enforcement Administration authorized the capture and return of Alvarez. Jose Sosa was one of the Mexicans who participated in the capture. After Alvarez was acquitted, he sued for false arrest in the U.S. District Court for the Central District of California. Over the opposition of the U.S. government, the District Court and the 9th U.S. Circuit Court of Appeals ruled that Alvarez could recover under the 1789 law for his detention, and awarded him $25,000, to be paid by Sosa. The government and Sosa appealed to the high court. The case has drawn wide interest from business groups seeking to stop the growth of what the U.S. Chamber of Commerce calls “global forum shopping,” in which foreigners resort to U.S. courts, with their favorable class action and discovery rules, to litigate over alleged human rights abuses overseas by U.S. corporations. “The U.S. is increasingly becoming the jurisdiction of choice for opportunistic foreign plaintiffs,” said Chamber President Thomas Donohue. But human rights groups support the availability of U.S. courts for litigating such global disputes. The law signals that “the United States takes its international human rights obligations seriously,” wrote Yale Law School professor Harold Koh, who filed a brief in the case on behalf of international jurists. Deputy Solicitor General Paul Clement told the Court Tuesday that “time and again” this kind of litigation is “causing foreign policy problems” for the United States. He reported to the justices, for example, that the South African government has formally protested a suit filed in the Southern District of New York by South Africans seeking reparations from their government for apartheid abuses. Carter Phillips of Sidley Austin Brown & Wood, who represented Sosa, said the Court should view the law as “purely jurisdictional,” asserting that it “does not imply a cause of action.” Justice John Paul Stevens told Phillips that no judge since 1980 has agreed with that interpretation. Justice Stephen Breyer repeatedly pointed to a compromise offered in a brief by the European Commission, which suggests that the United States could place reasonable limits on the type and scope of alien litigation it will allow in its courts. Paul Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman, who represented Alvarez, told the Court that “Congress meant what it said” in 1789, and lawsuits like his client’s should be allowed. “The law of nations has changed. That is the reason you have more cases,” Hoffman said. “You have a different world.” At the same time, however, Hoffman sought to calm fears of an explosion of lawsuits under the law, asserting that “there has not been a judgment against a corporation yet” under the law.

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