And Justice for All?

By Brian H. Kehrl, In These Times. Posted April 30, 2004.

The U.S. Supreme Court for the first time is examining the validity of opening federal courts to foreigners, and what Congress intended when it drafted a nondescript, sentence-long law more than 200 years ago that has been used recently to defend international victims of human rights abuses.

On March 30, the High Court heard arguments on two combined cases involving the Alien Tort Claims Act of 1789 (ATCA), a law interpreted to allow foreign victims of human rights violations the ability to sue in federal court. The cases involve a Mexican doctor who was arrested and brought to the United States by Mexican nationals hired by the U.S. Drug Enforcement Administration (DEA).

Dr. Humberto Alvarez-Machain was charged in 1990 with participating in the murder of a DEA agent in Mexico but was acquitted after two years of court battles for lack of evidence. The presiding judge called the government's charges "wild hunches and speculation" when he dismissed the case.

Alvarez-Machain returned to Mexico and filed suits against the U.S. government and Francisco Sosa, a Mexican policeman hired by the DEA for the kidnapping.

A federal district court in Los Angeles dismissed the suit against the government but ruled in favor of Alvarez-Machain in the suit against Sosa and awarded the doctor $25,000 in damages. After Sosa appealed, the Ninth Circuit Court of Appeals in San Francisco upheld the judgment and also reinstated the case against the government.

Both decisions were appealed to the Supreme Court.

In Sosa v. Alvarez-Machain, the ACLU is defending the doctor's right to bring civil claims under ATCA. In United States v. Alvarez-Machain, the ACLU is defending his right to bring claims against the U.S. government under the Federal Tort Claims Act for its role in the kidnapping.

"Both cases will likely have an important impact on efforts to use U.S. courts to curb governmental and non-governmental abuses beyond our borders," says Steven R. Shapiro, legal director of the ACLU.

ATCA, which doesn't require either party to reside in the United States, has developed into one of the most promising federal laws in defending international victims of human rights violations. The Act allows non-U.S. citizens to bring civil lawsuits for abuses "committed in violation of the law of nations or a treaty of the United States."

Since the landmark Filartiga v. Peña-Irala case in 1980, when a Paraguayan man successfully sued a Paraguayan police officer for the torture and murder of his son, ATCA has been used to sue foreign individuals in the United States, transnational corporations such as Exxon/Mobil, Unocal and Coca-Cola (see "Unocal off the Hook?") and now the American government.

ATCA has come under heavy fire recently from U.S. corporations and the Bush administration, the most vocal executive opponent to date, says William Aceves, a professor at California Western School of Law. Aceves is also affiliated with Human Rights First, which works on behalf of victims of human rights violations in the United States and abroad.

The U.S. Department of Justice, the International Chamber of Commerce, the American Petroleum Institute, the Business Roundtable (an association of CEOs of major U.S. corporations) and the National Foreign Trade Council all submitted briefs encouraging a narrow interpretation of the law. They contend that a broad reading of ATCA would discourage corporations from foreign investment; force courts to rule on U.S. foreign policy and limit the government's ability to pursue foreign terrorists.

Aceves, who filed a brief on behalf of Alvarez-Machain, says the law is essential in supporting the development of international human rights law. He disputes that ATCA would have a detrimental effect on corporations or the war on terror. No ATCA cases so far, he says, have shown any sign of such side effects. "Unless," he adds, "you consider victims of terror having the right to file lawsuits."

The Supreme Court will review further U.S. action in regard to international law when it hears cases this month challenging the government's denial of due process to U.S. citizens designated as enemy combatants and to foreign nationals indefinitely detained at the military base in Guantánamo Bay, Cuba.

Brian H. Kehrl writes for In These Times.

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