December 2, 2003Reviewing Foreigners' Use of Federal CourtsASHINGTON, Dec. 1 — Urged by the Bush administration to curb the growing recourse to United States courts as forums for international human rights cases, the Supreme Court agreed on Monday to review the use of a once-obscure 18th-century law as the jurisdictional basis for such lawsuits. The sudden popularity of the law, the Alien Tort Statute, enacted in 1789 as part of the first Judiciary Act to open the federal courts to foreign ambassadors and the new nation's trading partners, has been a source of growing concern to multinational corporations. A case brought by residents of Myanmar, charging the Unocal Corporation with human rights violations there, is before the federal appeals court in San Francisco. The case the justices accepted on Monday is somewhat atypical because it concerns actions by the government rather than solely by parties that have no official connection to the United States. Nonetheless, the case squarely presents the basic questions common to the full range of suits under the Alien Tort Statute: whether the law provides a basis for a federal court damage suit for violations of the "law of nations," and how to decide what sorts of legal injuries meet that definition. Without further defining its terms, the statute provides that the federal 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." The court will decide two related appeals growing out of the 1990 abduction of a Mexican doctor who was under indictment by a federal grand jury in the torture and murder of a federal narcotics agent in Guadalajara, Mexico. A Mexican police officer, acting at the behest of the Drug Enforcement Administration, helped kidnap the suspect, Humberto Alvarez-Machain, in his Guadalajara office and take him to California for trial. After the doctor was acquitted, he brought two lawsuits, one against the United States and federal agents for false arrest and one against his Mexican kidnapper, Jose Francisco Sosa, under the Alien Tort Statute for violating international law. In Federal District Court in Los Angeles, he won a $25,000 judgment against Mr. Sosa. The court dismissed the case against the United States, which was brought under a separate law, the Federal Tort Claims Act, a commonly used law that gives the federal courts jurisdiction to hear damage suits against the government. The United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld the award against Mr. Sosa and reinstated the case against the United States. Both defendants appealed separately to the Supreme Court, which will hear both cases in a single argument in April. The Alien Tort Statute case is Sosa v. Alvarez-Machain, No. 03-339. The government's appeal is United States v. Alvarez-Machain, No. 03-485. That case raises the specific question of whether an individual arrested in a foreign country can sue the government for false arrest despite the fact that the Federal Tort Claims Act explicitly excludes "any claim arising in a foreign country." Of the two cases, the Sosa appeal on the meaning of the Alien Tort Statute will undoubtedly attract most of the interest. Solicitor General Theodore B. Olson filed a brief urging the court to grant the Sosa case along with the government's own case. The Ninth Circuit's broad interpretation of the Alien Tort Statute, the solicitor general told the court, was "untenable" and "fraught with foreign policy implications and the potential for interference with the exercise of constitutional responsibilities by the political branches." The Sosa case also drew a strongly worded brief from a coalition of business interests, including the National Foreign Trade council and the United States Chamber of Commerce. They said the growing use of the law "has become a serious impediment to U.S. companies investing abroad." In addition to the Unocal case, which accuses the company of using forced labor and cooperating with the military government's brutal policies while building the Yadana Gas Pipeline Project, alien tort statute cases have been filed against the Exxon Mobil Corporation on behalf of Indonesian villagers; against the Chevron Corporation on behalf of Nigerians; and against 23 corporations accused of aiding the apartheid government in South Africa. In their brief opposing review of the Ninth Circuit's decision, lawyers for Dr. Alvarez-Machain assert that the government's concerns about the separation of powers are overblown. "What is at stake in this case is the rule of law," they told the court: "Basic principles dating back to the Magna Carta, enshrined in our Constitution, and recognized in international human rights law, prohibit this kind of abuse of official authority, and there can be little doubt that the decision below was right in finding abuse on these facts." For two centuries, the Alien Tort Statute received little attention, and much about its origins — and even its name — is obscure. It is sometimes called the Alien Tort Act or the Alien Tort Claim Act. A 1980 decision by the federal appeals court in New York allowed a Paraguayan family to sue a Paraguayan police official in Federal District Court in Brooklyn for a kidnapping and murder that occurred in Paraguay and gave the old law a new visibility. It was not until the mid-1990's that the law was used to sue corporations. The administration's basic argument is that the law provides jurisdiction in a general sense but conveys no specific rights that can be enforced by a private lawsuit. The lawsuits on behalf of those being detained by the United States at Guantánamo Bay, Cuba, included allegations under the Alien Tort Statute, but that question is not before the Supreme Court in the detainees' appeals that the justices accepted three weeks ago. |