This article originally appeared in the Opinion section of the National Law Journal, June 14, 2004.

Alien claims at stake

Steve Sanders [e-mail]
Special to The National Law Journal

An obscure federal law known as the Alien Tort Statute (ATS) could be a powerful tool to hold "private contractors" accountable for human rights abuses in Iraq -- if the U.S. Supreme Court doesn't gut the law in the pending case, Sosa v. Alvarez-Machain.

The ATS, passed by Congress as part of the Judiciary Act of 1789, gives federal district courts jurisdiction to hear actions by foreign nationals for harms suffered through violations of "the law of nations or a treaty of the United States." Although it slept quietly in the U.S. code for most of its history, the ATS gained life in the early 1980s as a vehicle for international human rights litigation after the 2d U.S. Circuit Court of Appeals ruled that a citizen of Paraguay could use it to sue a former Paraguayan official for the alleged torture death of his son. The court interpreted the ATS to provide not only jurisdiction but a cause of action for violations of international law. The statute has similarly been used in suits against former Bosnian Serb leader Radovan Karadzic and the estate of Ferdinand Marcos.

But the ATS has become an irritant for American business. A number of corporations have found themselves named as defendants in suits alleging that they abetted human rights abuses through their activities in countries governed by repressive regimes. Although most of these suits have been dismissed, business groups and the Bush administration have thrown their support behind a case that could effectively eviscerate the ATS.

Sosa, on which the justices are expected to rule soon, arrived at the high court at the same time Americans were becoming aware of the large role and lucrative deals private contractors have been given to provide infrastructure, security and intelligence in Iraq. Employees of at least two such companies have been implicated in abuse of Iraqis at Abu Ghraib prison.

Military personnel who violate regulations face courts-martial. But contractors seem more like mercenaries, operating in an occupied country outside of the military chain of command. Thus, their legal status has been murky and controversial. While it would not subject them to criminal penalties, the ATS may be the only meaningful way to hold contractors accountable for their role in the torture or humiliation of Iraqis. Victims or their relatives could sue the companies in American courts, seeking damages for injuries, suffering or wrongful death. (The ATS cannot be used to sue the U.S. government.)

American business would, of course, find the prospect of such liability worrisome, and this explains why it had mobilized against the ATS well before the prison scandal in Iraq.

Though it arose out of the "war on drugs" rather than the war on terrorism, the Sosa case oddly foreshadowed Abu Ghraib. It stems from an incident in 1990, when the U.S. Drug Enforcement Administration recruited Mexican bounty hunters to kidnap and deliver to U.S. officials a Mexican doctor, Humberto Alvarez-Machain, who had been suspected of involvement in the death of a DEA agent. After a federal court acquitted Alvarez-Machain, he sued one of his captors, Jose Francisco Sosa, a former Mexican police officer, under the ATS, arguing that his arrest and detention violated international law.

Of concern to conservatives

Legal conservatives, led by Judge Robert Bork, have inveighed against courts' use of the ATS, and the Sosa case represents their best chance for narrowing the law. Sosa and the government argue that the statute should be confined to purposes Congress might have imagined in 1789, such as punishing piracy and protecting foreign ambassadors. Using it to enforce modern norms of international law, Bork wrote last year in the Wall Street Journal, invites overreaching by "imperialistic judges."

Sosa argues that the ATS interferes with the president's management of foreign policy and threatens American investment abroad. Amici curiae supporting Sosa include the U.S. Chamber of Commerce, the Business Roundtable, the National Association of Manufacturers and the American Petroleum Institute. And the Bush administration argues that the ATS interferes with separation of powers. For example, as currently interpreted, the ATS would allow a federal judge to make an independent determination of whether the Geneva Conventions apply in a given circumstance, regardless of the executive branch's opinion.

The Sosa case is no longer about a misadventure in Mexico 14 years ago. It is about whether the American civil justice system can be used to hold accountable private parties-including rogue operatives, multinational companies and interrogators-for-hire-if they violate human rights. Though Abu Ghraib was not in the news when the justices agreed to hear Sosa, their decision will affect whether those to whom America outsources warfare remain outside U.S. and international law.

Steve Sanders [e-mail] is a law student at the University of Michigan; he formerly taught political science at Indiana University.