By LINDA GREENHOUSE
The New York Times
June 30, 2004
WASHINGTON, June 29 - A Supreme Court decision on Tuesday kept federal courts open to lawsuits by foreigners who allege that they were victims of serious human rights violations anywhere in the world.
The decision interpreting the Alien Tort Statute came as a relief to human rights organizations that had feared the court would accept the Bush administration's invitation to narrow the application of the 215-year-old law.
At the same time, the result was a sharp disappointment to international business interests, which have been alarmed by increasing use of the law to sue multinational corporations for human rights violations and had looked to the Supreme Court to curb the trend.
The case before the court did not involve a corporate defendant, and the 6-to-3 decision did not conclusively resolve the status of such cases. That opportunity may come soon, because lower courts with corporate cases on their dockets have been deferring decisions while waiting to see how the Supreme Court would rule in this case.
A case brought on behalf of residents of Myanmar charging the Unocal Corporation with human rights violations in connection with a gas pipeline project has already been argued before the federal appeals court in San Francisco and could reach the Supreme Court quickly.
The case before the justices was an appeal of an earlier ruling by the same appeals court, the United States Court of Appeals for the Ninth Circuit. That court permitted a Mexican doctor, Humberto Álvarez-Machain, to use the Alien Tort Statute to sue a Mexican who helped the federal Drug Enforcement Administration to kidnap him from his office in Guadalajara and bring him to the United States to stand trial for murder. A grand jury had indicted Dr. Álvarez-Machain in the murder of a federal narcotics agent, Enrique Camarena-Salazar. He was acquitted at his 1992 trial.
The Alien Tort Statute, which was among the laws enacted by the First Congress in 1789, provides jurisdiction in federal district courts "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 meaning of this statutory language, including the odd phrase "for a tort only," is obscure and the law was scarcely used until lower federal courts began applying it in international human rights cases in the 1980's.
In Dr. Álvarez-Machain's case, the Ninth Circuit found that the cross-border kidnapping violated international law and was thus the type of injury for which a foreigner could sue in federal court. A jury awarded the doctor a $25,000 judgment against the Mexican defendant, José Francisco Sosa, who then appealed to the Supreme Court.
In the decision on Tuesday, the last day of the Supreme Court's term, all nine justices voted to overturn the Ninth Circuit's judgment. "A single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law" and was not the type of egregious human rights violation that the Alien Tort Statute was intended to cover, Justice David H. Souter wrote for the court.
But the specific fate of Dr. Álvarez-Machain's lawsuit was not what made this case, Sosa v. Álvarez-Machain, No 03-339, one of the most closely watched on the court's docket. What mattered for future cases was the court's broader interpretation of the statute.
The Bush administration had urged the court to hear the case and to rule that the Alien Tort Statute did nothing more than define an aspect of the federal courts' original jurisdiction, without conferring an ability to bring private lawsuits or to invoke modern notions of international law.
There was "no basis," the administration's brief said, to view the law as having established "a roaming cause of action that permits aliens to come to United States courts and recover money damages for violations of international law anywhere around the globe." Congress had to specifically provide a basis for suing under the law, the brief said.
Justice Souter's majority opinion rejected that argument. He said that while the law should be applied with "judicial caution," it should also be interpreted as its authors intended it. He said the First Congress, "which reflected the understanding of the framing generation and included some of the framers, assumed that federal courts could properly identify some international norms as enforceable" under the law it wrote. "It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals," he added.
Justice Souter said that in the 18th century, there were three offenses that were seen as violating the contemporary concept of international law: violation of a promise to give "safe conduct,", piracy and "infringement of the rights of ambassadors." Calling these offenses "paradigms," he said that the Alien Tort Statute should be interpreted today as applying to their modern equivalents: international norms with "definite content and acceptance among civilized nations."
Human rights lawyers said Tuesday that while this analysis did not extend to the brief detention of Dr. Álvarez-Machain, it would cover universally recognized violations like torture, genocide, slavery and prolonged arbitrary detention.
"These are core human rights claims," Paul L. Hoffman, who argued in the court for Dr. Álvarez-Machain and who also represents the plaintiffs in the Unocal lawsuit, said in an interview. "The court has accepted that international law evolves and that this law has contemporary meaning."
Dissenting from this portion of the opinion, Justice Antonin Scalia said the majority had adopted "a 20th-century invention of internationalist law professors and human-rights advocates" and opened the door to an "illegitimate lawmaking endeavor" by federal judges.
"American law - the law made by the people's democratically elected representatives - does not recognize a category of activity that is so universally disapproved by other nations that it is automatically unlawful here, and automatically gives rise to a private action for money damages in federal court," Justice Scalia said. Chief Justice William H. Rehnquist and Justice Clarence Thomas signed his opinion.
Echoing that criticism, Robin Conrad, a lawyer with the United States Chamber of Commerce, expressed the disappointment of international business interests with the decision. In an interview, she said the ruling "leaves far too much discretion to courts" and creates "an ever-expanding universe of judge-made law." Ms. Conrad added: "We didn't succeed in cutting these cases off at the pass. We're back to square one."
Justice Souter's densely worded, 45-page opinion contained numerous words of caution for lower courts in handling future cases. He said courts should be sensitive to the foreign policy implications of cases under the Alien Tort Statute, citing in particular cases now pending against corporations that cooperated with the apartheid regime in South Africa.
The South African government has opposed these lawsuits on the ground that they interfere with its own post-apartheid approach to reconciliation and reconstruction, and the State Department has endorsed South Africa's view. "In such cases, there is a strong argument that federal courts should give serious weight to the executive branch's view of the case's impact on foreign policy," Justice Souter said.