Al Odah v. United States

On March 11, 2003 the Court of Appeals for the District of Columbia ruled on Al Odah v. United States 321 F.3d 1134 (2003 C.A.D.C.). The short facts are as followed "aliens captured abroad during hostilities in Afghanistan and held abroad in United States military custody at the Guantanamo Bay Naval Base in Cuba brought three actions contesting the legality and conditions of their confinement. The ultimate question presented in each case is whether the district court had jurisdiction to adjudicate their actions.

The complaint alleges: The complaint alleges that the detainees were in Afghanistan and Pakistan as volunteers providing humanitarian aid; that local villagers seeking bounties seized them and handed them over to United States forces; and that they were transferred to Guantanamo Bay sometime between January and March 2002. A representative of the United States Embassy in Kuwait informed the Kuwaiti government of their whereabouts...plaintiffs claim a denial of due process under the Fifth Amendment, tortious conduct in violation of the law of nations and a treaty of the United States, and arbitrary and unlawful governmental conduct. They seek a declaratory judgment and an injunction ordering that they be informed of any charges against them and requiring that they be permitted to consult with counsel and meet with their families. Id. at 1136.

The court held that the rule put forward in Eisentrager 339 U.S. 763 (1950) precluded the aliens from claiming habeas corpus. The majority of the opinion breaks down the courts interpretation of the applicability of habeas corpus to aliens being held at a military detention facility that is on land leased to the United States military. The Court pays short attention to Filartiga or the Alien Tort Statute holding: the detainees are in all relevant respects in the same position as the prisoners in Eisentrager. They cannot seek release based on violations of the Constitution or treaties or federal law; the courts are not open to them. Whatever other relief the detainees seek, their claims necessarily rest on alleged violations of the same category of laws listed in the habeas corpus statute, and are therefore beyond the jurisdiction of the federal courts. Nothing in Eisentrager turned on the particular jurisdictional language of any statute; everything turned on the circumstances of those seeking relief, on the authority under which they were held, and on the consequences of opening the courts to them. With respect to the detainees, those circumstances, that authority, and those consequences differ in no material respect from Eisentrager. Id at 1145

Sandhu v. Burke 2000 WL 191707

Sandhu v Burke, was decided on February 10, 2000 and is currently not reported in the federal reporters. The case can be found online at 2000 WL 191707.

In Sandhu v. Burke the plaintiffs, Sukhminder Singh Sandhu and Ranjit Singh Gill were both attempting to prevent extradition to India. Sandhu was charged with robbery and conspiracy to commit robbery of a national bank in Ahmedabad, India. Mr. Gill was charged with murder, attempted murder and murder in furtherance of a common intention in connection with the shooting deaths on July 31, 1985 of a member of the Indian Parliament, his wife, and a constituent in Delhi, India.

The case history spans over a decade and had numerous procedural issues. Throughout the case the petitioners were attempting to prevent an extradition to India claiming that upon extradition they would face torture, false imprisonment and other harms.

The court heard oral arguments stating that the principles of international law preclude extradition to India even if Article 3 of the Convention (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment) is not self-executing . Sandhu v. Burke 2000 WL 191707-10. The plaintiffs contend that under jus cogens norms of international law, the right to bodily integrity as well as the right to be free from torture and extradjudicial execution are rights that are judicially enforceable independent of any treaty. Id. The court did not agree holding that jus cogens is only applicable when there is no controlling executive or legislative act or judicial decision. Id.

In regards to Filartiga, the court held in a footnote that the reliance on Filartiga is misplaced. Filartiga concerned tort claims brought under the Alien Tort Statute...the case currently before this Court, however, arises not in the realm of torts but in the context of extradition. In the extradition context, there is no equivalent to the ATS. Id at ft.10

Hawkins v. Comparet-Cassani

In Hawkins v. Comparet-Cassani the prisoner had a stun belt placed on him prior to sentencing proceeding and later activated. Hawkins brought a civil rights action against county, judge, sheriff, and other defendants. The court held that most of the plaintiff's causes of actions were bared for one reason or another. Plaintiff cited Filartiga, claiming that the actions of the defendant constitute torture.

Plaintiff claimed that torture is a violation of jus cogens norms. When dealing with jus cogens that courts will look at different sources of law including international law. 33 F.Supp.2d 1244, 1255. (1999 C.D. Cal.) The court held that the treaties put forward by the plaintiff were not self-executing treaties (Universal Declaration of Human Rights and the Declaration on the Protection of All Persons from Being Subjected to Torture) nor were they treaties but non-binding resolutions of the General Assembly. 33 F.Supp.2d 1244, 1257 (1999 C.D. Cal). The court was unwilling to go into detail regarding Filartiga.

Buckland v Hessen

In Backlund v. Hessen, 904 F.Supp. 964, 971 (D. Minn 1995) the court held that "Plaintiff refers to article 2 of the Universal Declaration of Human Rights and articles 2 and 26 of the International Covenant on Civil and Political Rights as giving rise to a claim for discrimination and cites for support Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980). Filartiga concerned a tort claim by an alien arising under 28 U.S.C. § 1350 which gives district courts original jurisdiction over a claim brought by an alien in tort alleging violation of the law of nations or a U.S. treaty. Plaintiff's claim is not in tort and does not arise under 28 U.S.C. § 1350. Filartiga cannot be read so as to recognize jurisdiction over international law-based claims not arising under 28 U.S.C. § 1350. Plaintiff provides no legal support and this Court has found none indicating that he has a claim in federal court for a violation of either the Universal Declaration or the International Covenant. Courts have declined to recognize that federal question jurisdiction under 28 U.S.C. § 1331 gives federal courts jurisdiction over a claim for a violation of international law. Xuncax v. Gramajo, 886 F.Supp. 162,"

Linder v. Calero Portocarrero

After Filartiga v Pena-Irala was heard in the federal district court of New York a number of other cases cropped up in Federal Courts claiming the ATS as a means of getting jurisdiction over the defendant.

In Linder v. Calero Portocarrero 747 F.Supp.1452 (1990) the plaintiffs sued on behalf of the deceased, Benjamin Linder. Mr. Linder was killed by Contra rebels in Nicaragua in April of 1987. He was wounded by gun fire while at an unfinished Hydroelectric dam. He was taken and then tortured by the rebels and have between 30 to 40 wounds on his face with a sharp pointed object.

In the original complaint there were a number of defendants, including Nicaraguan Democratic Force, the United Nicaraguan Opposition, the Nicaraguan Resistance, and four individuals, Adolfo Calero Portocarrero, Enrique Bermudez Varela, Aristides Sanchez Herdocia, and Indaleco Rodriguez Alaniz. The named individuals were sued in their individual capacity for actions that took place in Florida. The organizations were largely organized and operated in Nicaragua.

The Defendants raised several arguments: 1) Court lacks subject matter jurisdiction over the action because the claims represent non-justiciable political questions, 2) dismissed under the State Doctrine, and 3) plaintiffs have failed to state a claim under customary international law and 4) the Geneva Conventions do not provide a private right of action for the defendants.

The Court held held that the political question doctrine prevented the court from hearing the case. (Id at1457) The court further held that there were no judicially discoverable critieria to resolve the serious issues raised by the claim. (Id at 1459) The court was unwilling to determine if the actors were state actors and protected by the State Action doctrine (Id. at 1457-1458.)

Linder v. Calero then goes on to distinguish the facts of this case from Filartiga v. Pena-Irala which was cited by the Plaintiff. The Court held that Linder involved a U.S. citizen and that the ATS allowed for aliens to bring an action, not U.S. Citizens. The court stated that the plaintiff must show that international law unambiguously provides a cause of action for their claim. The court noted that in Filartiga the Court found official torture to be a clear and unambiguous violation of the law of nations...however, the case at bar differs from Filartiga in respect to the status of the parties allegedly inflicting torture. The contras are private individuals whose actions simply do not represent state action. (Id at 1462) The court further held that domestic tort actions are not appropriate remedies for injuries occurring outside the United States during conflicts between belligerents. (Id at 1463)

The plaintiffs appealed the decision of the court and was heard by the United States Court of Appeals and can be found at 963 F.2d 332. The Court of Appeals held in part the defendants motion to dismiss and remanded in part. The court held that there is no foreign civil war exception to the right to sue for tortious conduct that violates the fundamental norms of the customary laws of war (Id at 336). Regarding the political question doctrine the court stated, " In our view, this presents no difficulty in going forward with the case. Under the allegations of tort liability that we have explicated, the complaint challenges neither the legitimacy of the United States foreign policy toward the contras, nor does it require the court to pronounce who was right and who was wrong in the Nicaraguan civil war. On the contrary, the complaint is narrowly focused on the lawfulness of the defendants' conduct in a single incident." (Id at 337)

Filartiga part 3

In 1980, the United States Court of Appeals for the Second Circuit heard Filartiga v Pena-Irala 630 F.2d 879 (C.A.N.Y. 1980) and determined that torture violated universally held norms and was a violation of the law of nations. The original lawsuit claimed the following causes of action: “wrongful death statutes; the U. N. Charter; the Universal Declaration on Human Rights; the U. N. Declaration Against Torture; the American Declaration of the Rights and Duties of Man; and other pertinent declarations, documents and practices constituting the customary international law of human rights and the law of nations,” as well as 28 U.S.C. sec. 1350, Article II, sec. 2 and the Supremacy Clause of the U. S. Constitution. Jurisdiction is claimed under the general federal question provision,28 U.S.C. sec. 1331 and, principally on this appeal, under the Alien Tort Statute, 28 U.S.C. sec. 1350 (id at. 879)

On May 14, 1979 the suit was dismissed on jurisdictional grounds. The plaintiffs were given 48 hours to apply for other forms of stay, but were denied on these grounds as well. Shortly thereafter Pena left the country. The court put heavy emphasis on The Paquete Habana 175 U.S. 677 (1900) in stating that courts must interpret international law not as it was in 1789 but as it has evolved. The court then quotes the U.N. Charter stating that a states treatment of its OWN citizens is now a concern of all nations. (Filartiga at 881) The Court quotes further U.N. language holding that the torture of one's citizens is not to be had and that all persons shall be free from torture. (id. at 882-883) The court concludes that it is the proper venue in that federal courts have always had the ability to hear cases concerning international law.

Filartiga continued

When the federal appellate court heard the Filartiga case they were not looking at the illegality of the underlying action of Pena-Irala. Instead they were dealing with the question of damages. Originally the court ordered $200,000.00 in damages for Dr. Filartiga and $175,000.00 in damages for Dolly Filartiga. The federal appellate court had earlier determined that "deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties,” and that 28 U.S.C. § 1350 gave jurisdiction over an action asserting such a tort committed in violation of the law of nations. 630 F.2d 876 (2d. Cir. 1980).

The court held that the State Action Doctrine did not apply because the Paraguayan government did not ratify the actions of Pena-Irala and therefore the State Action Doctrine would not apply. The court then determined what law should be applied, whether it was in the violation of the law of nations or of the sovereign state in which the action occurred. The court determined that the international application of a tort would be applied in order to avoid states making state actors immune from prosecution. The court further held, "where the nations of the world have adopted a norm in terms so formal and unambiguous as to make it international “law,” the interests of the global community transcend those of any one state. That does not mean that traditional choice-of-law principles are irrelevant. Clearly the court should consider the interests of Paraguay to the extent they do not inhibit the appropriate enforcement of the applicable international law or conflict with the public policy of the United States. 577 F.Supp. 860, 863-864.

The court further held that punitive damages were not allowed in Paraguayan courts, but the court held that there is precedent for holding punitive damages in international law. The court did recognize that punitive damages are not applied against governments but can be applied against individuals. In this particular case it is "essential and roper to grant the remedy of punitive damages in order to give effect to the manifest objectives of the international prohibition against torture." Id. at 865.

Background on Filartiga

This post will attempt to portray what events happened in the Filartiga case leading up to the lawsuit in federal court. Full description of the events are beyond the scope of this blog and the judicial opinion gives a decent description. Filartiga can be found at Filartiga v Pena-Irala 577 F.Supp. 860 (D.C.N.Y. 1984), however the court only gives cursory description of the events. An in depth look at the case can be found in The Anatomy of Torture: A Documentary History of Filartiga v. Pena-Irala by William J. Aceves.

The whole case underlying Filartiga occured in Paraguay. The deceased, Joelito Filartiga was the son of Dr. Filartiga, a prominent human rights advocate in Paraguay against the Stroessner regime. Dr. Filartiga had been tortured on more than one occassion in the past. Dolly Filartiga was the deceased brother and a victim of some of the actions of the Defendant, Pena-Irala. The Defendant Pena-Irala was the Inspoector General of Police of Asuncion. He happened to live a few homes down from the victims.

Joelito was tortured and killed by the defendant. According to court records in Paraguay Joelito was killed in a jealous rage when the hsband of Pena-Irala's daughter caught the two of them in bed. However, medical examinations showed evidence of torture including electricity, broken bones and stabbing. Dolly was shown the murdered body of her brother and told by the defendant that they have what they were looking for and deserved.

The legal proceedings in Paraguay were a sham. The attorney that attempted to represent the Filartiga's was threatened and he finally had to drop the case. Over time, Dolly left Paraguay for the United States to get away from Paraguay. However, she found out that Pena-Irala was in New York with his wife but had overstayed their Visa. This quickly set forth a series of events that lead to the deportation proceedings against Pena-Irala, the filing of the civil action in federal court and the begining of a case that empowered an old law.

More Early ATS cases part 3

In Aboudin v. Martin Oil Serv. Inc, 475 F.2d 142 (7th Cir. 1973) plaintiffs were four Nigerian citizens, who signed a contract with Alpha-Niger enterprises providing for training in the U.S. with Martin Oil Company and subsequent employment in Nigeria. Plaintiffs claim jurisdiction under a number of statutes including 28 USC 1350. The court held that on its face the plaintiffs' claim was for breach of contract and that even with the Fraud and deceit allege it does not rise to a claim violating international law.

In IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975) plaintiff is a Luxemburg based trust fund bringing action against Vencap, Ltd for fraud, conversion and corporate waste. In this case there was no allegation of a treaty violation or that the statute should be read expansively to include the Eight Amendment (Thou shalt not steal) as part of the law of nations. The court determined that 28 U.S.C. 1350 did not provide grounds for jurisdiction.

In Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975) plaintiffs were a class action against the Immigration and Nationality Services claiming that as babylifted Vietnamese children, being held in detention from anyone but their parents was a violation of their human rights and the fifth amendment. The court was unwilling to determine the jurisdictional claim under 28 U.S.C. 1350 as they were not briefed on the topic. However, the court does say that illegation detention, transportation and siezure of an alien against his will may violate international law.

In Dreyfus v. Von Finck, 534 F.2d 24 (2d. Cir. 1976) the plaintiff a Swiss citizen brought suit against German nationals for the theft of property in Nazi Germany in 1938. The court held in this case there was no violation of a treaty that gave rise to the individual defendants or that a violation of international law occurred when the aggrieved parties are nationals of the acting state. The court recognized that the actions were likely tortious but did not rise to a violation of the law of nations. (This case has been disavowed by Filartiga and disagreed with by Garb - both to be discussed later.)

In Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978) the plaintiff a Dutch citizen residing in California brought an action against an international air carrier and manufacturer for the death of his wife and loss of baggage. The court held that the plaintiff failed to allege any cause of action that arose to a violation of the law of nations and therefore jurisdiction did not arise under 28 U.S.C. 1350.

In Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1979) plaintiffs were the grandmother and uncle of Vietnamese children claiming that the adoption agency and practices in Michigan violated the law of nations (amongst other claims). The court held that under the treaties cited no private cause of action existed and that the plaintiffs failed to state a cause of action under the Alien Tort Claims Act. The court did not find any international law that stated relatives of children had preferrential treatment over foster parents in attempting to adopt. For this reason, among others, the plaintiff did not have a cause of action.

More Early ATS cases

In Upper Lakes Shipping LTD. v International Longshoremen's Association 33 F.R.D. 348 (S.D.N.Y. 1953) the Plaintiff a Canadian shipping company sued the defendant contending that the defendant was maliciously interfering with plaintiff's business and collective bargaining agreement with the Canadian Maritime Union. Plaintiff believed that defendants violated a treaty between the United States and Canada from 1909 concerning the boundary waters between the two States. Even though there was a treaty and it was potentially violated the court did not get jurisdiciton under the ATS because the sole remedy under the treaty was to pursue the case at the International Joint

In Lopes v. Reederei Richard Schroder 225 F.Supp. 292 (E.D. Pa. 1963) the plaintiff contended that unseaworthiness and negligence a tort committed in the violation of the law of nations or a treaty of the United States. The court held that the doctrine of unseaworthiness was judicially created and unique to the United States, therefore it was not part of the law of nations. Since it was unique to the United States, the United States could not be a party to a treaty holding that unseaworthiness was illegal. The court futher held that negligence does not fall under the category of violating the law of nations. Lopes v. Reederei Richard Schroder has an excellent recounting of jurist work regarding the language of the ATS. Id. at 296-297.

In Damaskinos v. Societa Navigacion Interamericana, S.A., Panama 225 F.Supp. 919 (S.D.N.Y. 1966) the court held that negligence in providing a seaman a safe place to work does not fall under the law of nations or a treaty of the United States. The Plaintif was an alien from Greece who signed a contract in Greece for employment on a Lebanon vessel. The contract contained the controlling law, and the court held that Greek law was the proper authority. The treaty relied upon by Plaintiff only gives the plaintiff the right to be heard in a U.S. court, it does not create an enforceable right. Therefore the case was dismissed.

In Valanga v. Metropolitan Life Insurance Company 259 F.Supp 324 (D.C. Pa. 1966) the court held that it was not a violation of the laws of nations for an insurance provider to not pay proceeds on a plan. Since this was a cause of action fo breach of contract the court was unwilling to accept Plaintiffs contention that it was a tort in violation of the law of nations. The case was dismissed.

Early ATS cases

As mentioned previously the early cases regarding the ATS only discussed the ATS by reference, not by a direct citation of the statute.

In O'Reilly De Camara v. Brooke, the plaintiff, a Cuban subject sued in federal court to reacquire the position of High Sheriff of Havana. One of the counts used the following language, "of all suits brought by any alien for a tort ‘only’ in violation of the law of nations, or of a treaty of the United States." The Court found that plaintiff's argument was weak and did not amount to a tort in voilation of the law of nations. "In this court the plaintiff seems to place more reliance upon the suggestion that her rights [to office of High Sheriff] were of so fundamental a nature that they could not be displaced, even if Congress and the Executive should unite in the effort. It is not necessary to say more about that contention than that it is not the ground on which the jurisdiction of the district court was invoked." 209 U.S. 45, 51 (1908) The Court determined that the plaintiff did not have a valid cause of action against the defendant.

In Khedivial Line, S. A. E. v. Seafarers' Intern. Union, the plaintiff, owners of a vessel from the United Arab Republic, sought an injunction against the dockworkers union for protesting. The plaintiffs alleged a number of causes of action including that the complaint states a claim for a tort committed in violation of the law of nations within 28 U.S.C. § 1350 278 F.2d 49, 51 (2d Cir. 1960). Plaintiff was unable to show that a treaty existed between the United States and the United Arab Republic regarding harbor access or that any law of nations allowed unrestricted access to harbors by vessels of any nation. Id. at 52. The Court further found that appellants argument that equitable relief if it cannot be granted under maritime law; it should be granted under 28 U.S.C. 1350. The Court disagreed.

In Adra v. Clift the plaintiff father (alien from Lebanon) sued his ex-wife, (alien from Iraq) now married to a U.S. citizen husband in Maryland, for custody and support payments of the child (Lebanese citizen). According to the court 28 U.S.C.A. does not require any pecuinary claims. 195 F.Supp. 857, 863 (D. Md. 1961). The court held that the actions of the defendant did constitute a tort in voilation of the laws of nations. However, after considering the best interest of the child the court held that it would not grant relief to the plaintiff. Id. at 866-867. In the end the father was not able to get his daughter back even though he had won suits in both Lebanon and the United States.

Early Cases

The first reported case citing the ATS is Moxon v. The Fanny 17 F.Cas. 942 (D. Pa. 1793) (No. 9895) decided in 1793 which involved a libel action seeking restitution for a ship and its cargo taken in violation of the law of nations. The reference to the ATS was by implication, not by direct reference to the ATS.

Bolchos v. Darrel 3 F. Cas. 810 (D.C.S.C. 1795) (No. 1607) involved a lawsuit seeking restitution for the value of slaves taken from a captured Spanish ship. The district court recognized the plaintiff's right to seek compensation for a violation of substantive rights under the law of nations.

Between 1795 and 1979 the vast majority of cases that referenced the ATS did it in a cursory nature. The following cases are a good example of cases that referred to the ATS.

Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1979); Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978); Dreyfus v. Von Finck, 534 F.2d 24 (2d. Cir. 1976); Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975); IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975); Abiodun v. Martin Oil Serv., Inc., 475 F.2d 142 (7th Cir. 1973); Valanga v. Metro. Life Ins. Co., 259 F. Supp. 324 (E.D. Pa. 1966); Damaskinos v. Societa Navigacion Interamericana, S.A., Panama, 255 F. Supp. 919 (S.D.N.Y. 1966); Lopes v. Schroder, 225 F. Supp. 292 (E.D. Pa. 1963); Upper Lakes Shipping, Ltd. v. Int'l Longshoremen's Ass'n, 33 F.R.D. 348 (S.D.N.Y. 1963); Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961); Khedivial Line, S.A.E. v Seafarers' Int'l Union, 278 F.2d 49 (2d Cir. 1960); O'Reilly DeCamara v. Brooke, 209 U.S. 45 (1908)

Origins of ATS

The origins of the ATS are up to some debate as the historical record is largely silent on what the original legislatures were thinking. Some scholars believe that the ATS was enacted to allow the federal courts of the United States to be able to prosecute violations of international law that posed a threat to international peace and national security. For example the various states were unable or unwilling to prosecute claims by the British and other States for damages stemming from the Wars of Independence. The failure to prosecute posed serious problems for the nation as Britain may have initiated military action to acquire the demanded resources.

The Marbois incident is indicative of the underlying theory behind the ATS. In 1784 the French Consul in Philadelphia was assaulted and it created significant barriers to U.S./French relations. When the Constitutional Convention convened three years later the Marbois incident would have been fresh on everyone's mind.

Other scholars claim the ATS was a "badge of honor" representing a commitment to uphold international norms. Whatever the origins of the ATS may be, the ATS has had a significant impact in recent history on the ability of the United States to impose international norms with domestic courts on aliens. Where the line is drawn has yet to be seen and is open to significant debate.

The purpose of this Blog

The purpose of this blog is to track the history and development, historical and current, of the Alien Tort Statute (also referred to as Alien Tort Claim Act). I became interested in the ATS while working for Prof. William Aceves at California Western School of Law. In my opinion the ATS is a powerful vehicle to address and redress wrongs and grievances for aliens in U.S. courts against those individuals who are immune or unlikely to be prosecuted in the aliens home country.

This blog will first lay out the legislative groundwork/history of the ATS, at least what little exist. It will then briefly go through the cases leading up to the seminal case of Filartiga v Pena-Irala 630 F.2d 876 (2d Cir. 1980). The cases following Filartiga will be dissected in greater detail up to Sosa v Alvarez-Machain 542 U.S. 692 (2004). I would also like to trace any case concerning ATS that is currently in litigation or is about to go into litigation to track any changes or worthwhile theories as to what actions do or do not fall within the requirements of the ATS.

For those that are wondering the ATS is codified at 28 U.S.C. 1350 and states "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."

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