Global Policy Forum

By Warren Richey

In a decision with potential major implications for victims of harsh US treatment in Iraq and the broader war on terror, the US Supreme Court has sharply cut back the role of federal judges to decide cases involving alleged human rights abuses overseas.

The nation's highest court Tuesday ruled that a law passed by the first Congress in 1789 offers only a limited opportunity for foreign nationals to sue in US courts for alleged violations of international law that take place in other countries. In ruling that the Alien Tort Statute is primarily jurisdictional absent additional action by Congress, the justices reversed a $25,000 judgment won by a Mexican doctor who sued after being kidnapped and brought to the US to stand trial in a murder case.

At issue in the case was whether the doctor could win such a judgment based on alleged violations of international law - particularly when those laws may never have been adopted or endorsed by Congress.

Writing for the majority, Justice David Souter said that while the Alien Tort Statute is jurisdictional and thus does not offer a basis for individuals to file suit, the practical implications of the law suggest it does create a cause of action but only in a "modest" number of cases involving clear international law violations. The court does not define which cases might apply. "It looks like you can still bring an action for torture, genocide, for slavery, for apartheid, and other things that are definite widespread violations," says Harold Koh, dean of Yale Law School and an international law expert.

The justices stopped short of rolling back 24 years of legal decisions by lower-court judges who have taken a more expansive view of the statute. But the ruling raises questions about pending Alien Tort Statute (ATS) suits, including many against corporations doing business in repressive countries. "Basically the high court said if a [US] court were to find a cause of action, it would have to be as specific and as narrow as the causes of action that existed back in 1789 [when the ATS was adopted]," says John Niblock, a Washington lawyer who defends corporations against ATS suits. Mr. Niblock says a footnote in the decision "suggests foreign-policy concerns raised by ATS lawsuits [against corporations] could very well require their dismissal."

The decision marks somewhat of a setback for international human rights activists and those seeking greater US involvement in the development of international law. Although US courts will remain open under the ATS to foreign victims of human rights violations, it is now unclear which cases will qualify. The issue is likely to be litigated soon on behalf of victims of abuse at a US military prison in Iraq and longtime detainees at Guantánamo Bay, Cuba. The decision marks a victory for US-based corporations that had increasingly been targeted under ATS lawsuits. The corporations were sued for allegedly aiding and abetting human rights abuses of repressive governments with whom they did business.

But the decision is perhaps most significant for its core ruling: that the Alien Tort Statute empowers judges to decide which international legal standards should apply in a particular case and then decide whether the conduct in question violates those standards. Critics of the law complained that such a double tier of authority would place life-tenured US judges in the impermissible role of being both lawmakers and judges. There are 878 federal judges in the US, embracing a wide range of legal philosophies that are likely to result in sharply different rulings in cases with similar facts. In a dissent, Justice Antonin Scalia said that although he agreed with much of the court's decision, he could not join in that portion of it because "the judicial lawmaking role it invites would commit the federal judiciary to a task it is neither authorized nor suited to perform."

In addressing that concern, Justice Souter said US courts must confine the scope of the ATS to a narrow range of cases. "Whereas Justice Scalia sees these developments as sufficient to close the door to further independent judicial recognition of actionable international norms, other considerations persuade us that the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping," he writes.

The decision stems from a lawsuit filed by a Mexican doctor who in 1990 was abducted from his office in Guadalajara and transported to the US to face charges that he participated in the torture and murder of a Drug Enforcement Administration (DEA) agent investigating Mexican drug traffickers. Dr. Humberto Alvarez-Machain was seized by a group of Mexican men working at the direction of the DEA. He stood trial in federal court in Los Angeles in 1992 and was acquitted for lack of evidence. After returning to Mexico, he filed a lawsuit in Los Angeles against Jose Francisco Sosa and the other Mexicans who had kidnapped him. He filed suit under the Alien Tort Statute and was awarded $25,000 in damages because the court determined that his international human rights had been violated during the DEA-sanctioned abduction. The Ninth US Circuit Court of Appeals in San Francisco upheld the award. Although the money damages in the case aren't substantial, analysts say any legal precedent established in the case could be a watershed in the development and enforcement of international law.

When it reached the US Supreme Court, lawyers for the Bush administration argued that the lower courts had misconstrued the Alien Tort Statute. The Solicitor General's Office said the statute - passed 214 years ago - was not intended to permit foreign nationals to use US courts to enforce international human rights standards. Instead, administration lawyers said, the Alien Tort Statute merely established that US courts would have jurisdiction over such cases, but only if Congress spelled out specifically which crimes would be covered and under what circumstances.

Lawyers for Alvarez-Machain and international human rights activists countered that Congress's intent is clear in the plain language of the statute. It says that foreign nationals may file suit in US courts "for a tort only committed in violation of the law of nations or a treaty of the United States." • Linda Feldmann contributed to this report.