an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In her profile of Justice David Souter in the New York Times this weekend, Linda Greenhouse notes that the Justice only crossed the Atlantic twice, once for his Rhodes Scholarship at Oxford, and the second time for an Oxford reunion. But for a judge who had spent such little time abroad, he certainly demonstrated concern (shall I dare say "empathy"?) for those beyond our shores. This was made clear in his decision in Sosa v. Alvarez-Machain, a case handed down on the last day of the Court's October 2003 term.
Sosa was the Court's first full engagement with the Alien Tort Statute (ATS), which formed but one sentence in the Federal Judiciary Act of 1789: "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."
The Second Circuit had revived the ATS in 1980 in Filartiga v. Pena-Irala. There the court held that the ATS permitted a federal court to hear Dolly Filartiga suit on behalf of her seventeen-year-old brother, a Paraguayan tortured and killed by a Paraguayan police inspector, Americo Norberto Pena-Irala.
The ATS became the principal vehicle for bringing human rights litigation in U.S. courts. In Kadic v. Karadzic, victims of a campaign of rape and genocide in Bosnian sued the leader who had orchestrated the campaign for war crimes.
But some thought that the Alien Tort Statute litigation was misguided because it opened U.S. courthouse doors for offenses abroad involving foreigners. While on the D.C. Circuit in 1984, Judge Robert Bork had argued in Tel-Oren v. Libyan Arab Republic that there was no cause of action available in a suit brought under the Alien Tort Statute by the families of those killed by a terrorist attack on a bus in Israel.
In the pages of the Harvard Law Review in 1997, Jack Goldsmith and Curtis Bradley deplored the human rights litigation that Filartiga had spawned as "constitutionally suspect." They argued there that "if CIL is not federal common law, ‘a tort . . . committed in violation of the law of nations’ would not arise under ‘the Laws of the United States’ within the meaning of Article III, rendering Filartiga-type suits constitutionally suspect." Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815, 848 (1997). Gerald Neuman and Harold Koh, among others, responded to Bradley and Goldsmith (Koh had been co-counsel in numerous human rights cases, including Kadic v. Karadzic). Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L. REV. 371 (1997); Harold Hongju Koh, Is International Law Really State Law? 111 Harv. L. Rev. 1824 (1998).
Thus, before the Court heard Sosa, the battle lines had been sharply drawn. The Bush Administration saw this as a chance to get rid of ATS litigation for good. Human rights lawyers, meanwhile, hoped to preserve the possibility of human rights litigation. Even the European Commission intervened on behalf of the European Union, arguing that such litigation was appropriate if contained within the bounds of universal jurisdiction, "such as the prohibitions against genocide, torture, war crimes, and crimes against humanity."
In the 2004 case, Dr. Humberto Alvarez-Machain sued Mexican Jose Francisco Sosa for abducting him and holding him overnight in a motel before bringing him to El Paso, Texas where he faced criminal charges in the U.S. (charges for which he was ultimately acquitted). The suit was brought under the ATS, and the alleged tort was the "arbitrary" detention of Dr. Alvarez-Machain.
Justice Souter wrote the opinion for the majority. The decision is admittedly difficult to parse. It requires reading and rereading. But it resolves the Gordian Knot of the Alien Tort Statute. Justice Souter wrote that the ATS grants federal courts jurisdiction, and that federal common law grants a cause of action. Federal common law, Justice Souter continued, included certain norms of the law of nations.
Justice Scalia sharply reproached the majority for violating democratic principles by allowing for international law norms to infiltrate U.S. law. He offered a sixth-grade civics lesson to his colleagues: "We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law."
Justice Souter, of course, needed no civics lessons. He understood fully that U.S. law had long recognized international law. He cited two decisions, The Paquete Habana, of 1900, and an even earlier decision by Chief Justice Marshall in 1815: The Paquete Habana, 175 U.S., at 700, 20 S.Ct. 290 (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination”); The Nereide, 9 Cranch 388, 423, 3 L.Ed. 769 (1815) (Marshall, C.J.) (“[T]he Court is bound by the law of nations which is a part of the law of the land”).
For those worried that he might license judges to find international law norms where they were really rather uncertain, he suggested a historical test: "[C]ourts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized." Justice Souter concluded that Alvarez-Machain's claim, a prohibition on arbitrary detention for one day clearly did not rise to such an international legal norm.
Since Sosa, individuals have continued to seek to bring human rights abuses to justice through U.S. courts. Justice Souter deserves recognition for allowing the U.S. courts to serve this crucial role in justice. Posted
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