High Court to Consider Arrests Abroad: Alien Tort Act Used in War on Terrorism, Suits for Damages in Human Rights Cases

December 2, 2003
Washington Post, December 2, 2003
The Supreme Court announced yesterday that it will consider whether U.S. law permits the federal government to track down alleged criminals or terrorists and arrest them abroad, with or without the other country's consent.
The court said it will review a federal appeals court's decision earlier this year that upheld a damages award to a Mexican national who was seized in Mexico at the U.S. Drug Enforcement Administration's behest and delivered to the United States to stand trial on drug-related murder charges.
The court's decision escalates the justices' involvement in the legal controversies swirling around the U.S. war on terrorism and could produce a historic decision on the allocation of overall foreign policy power between the president and the courts.
The court acted in response to a Bush administration request that it intervene in favor of executive power -- in contrast to the court's other recent intervention in the war on terrorism, when it agreed to hear an appeal by suspected terrorists held at the Guantanamo Bay naval base in spite of a Bush administration plea to stay out of an area where the executive branch should hold sway.
In his appeal of the ruling by the San Francisco-based U.S. Court of Appeals for the 9th Circuit, U.S. Solicitor General Theodore B. Olson wrote that "threats to the Nation's security . . . are now, more than ever, transnational phenomena" and that "transborder arrests" are a rarely used but sometimes vital means of capturing terrorists and drug traffickers.
By exposing U.S. officials or those who assist them to the threat of costly lawsuits, Olson wrote, the 9th Circuit ruling would make it more difficult even to contemplate such arrests, thus providing "terrorists or other criminals who hid in countries unwilling or unable to apprehend them . . . a safe harbor from federal law enforcement agencies."
The court's eventual opinion might determine not only how much power the federal courts have to limit the tactics federal law enforcement may use to pursue wanted terrorists -- such as Osama bin Laden and his associates -- but also how much power they have to hold U.S. and other corporations accountable for their foreign conduct.
The 1789 statute the court will interpret in the case has been used to sue both foreign and American individuals for alleged violations of human rights abroad -- and to sue multinational firms for their alleged complicity in the human rights abuses of countries where they invest.
The statute, the Alien Tort Act, gives the U.S. district courts "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."
Though rarely invoked throughout most of U.S. history, the law has been interpreted by several federal appeals courts since 1980 to open the federal courts to suits for monetary damages based on alleged violations worldwide of internationally recognized human rights norms.
Among the defendants who have been sued are Radovan Karadzic, the Bosnian Serb leader allegedly responsible for mass killings of Muslim civilians, and Unocal, the petroleum multinational, which is fighting a lawsuit over its alleged collaboration with the use of forced labor by Burma's government on a natural gas pipeline.
That interpretation of the Alien Tort Act is vigorously defended by human rights and environmental activists, who see it as a powerful tool for reining in the unlawful conduct of individuals, companies or government officials that might otherwise escape justice.
In a friend-of-the-court brief, the Lawyers Committee for Human Rights urged the court to back what it called "the traditional understanding" of the law. The committee said that "this case presents compelling issues of justice for victims of human rights." It was joined in the brief by the Rutherford Institute, a Virginia-based civil liberties organization.
But the Bush administration has made limiting the scope of the Alien Tort Act a high priority since the beginning of the war on terrorism, in which the United States has deployed its law enforcement and intelligence officers around the world in a campaign to round up alleged members of al Qaeda. According to published reports, the United States has sometimes turned suspects over to governments believed to use brutal methods of interrogation.
A friend-of-the-court brief submitted by a group of prominent business organizations, including the U.S. Chamber of Commerce and the National Association of Manufacturers, argued that "over the past decade, the Alien Tort [Act] has become a serious impediment to U.S. companies investing abroad."
The Lawyers Committee and attorneys for Humberto Alvarez-Machain, the Mexican arrested by the DEA but later acquitted, countered in their briefs that this threat to business is overblown, because federal courts have consistently thrown out suits that present overly sweeping claims. But businesses object that they are harmed just by the cost of going to court to get those suits dismissed.
Until now, the Supreme Court had stayed out of the battle over the law. As recently as 2001, the court turned down an appeal by Royal Dutch Petroleum Co. of a suit by the survivors of Ken Saro-Wiwa, the human rights activist executed by Nigeria's government in 1995.
Since Sept. 11, 2001, several federal appeals judges who oppose the current interpretation of the Alien Tort Act have written dissenting or concurring opinions urging the justices to issue a definitive ruling on it.
The cases are Sosa v. Alvarez-Machain, No. 03-339, and U.S. v. Alvarez-Machain, No. 03-485, consolidated. Oral argument is to take place in the spring, and a decision is expected by July.