WASHINGTON - Marking the first time Supreme Court has been asked to review whether federal courts have jurisdiction to hear human rights claims brought by foreign citizens, the American Civil Liberties Union is co-counsel in two closely watched international human rights law cases that will come before the Court tomorrow.
In the two consolidated cases, the Court will review the right of a Mexican national who was kidnapped at the direction of U.S. officials to sue both his kidnapper and the U.S. government.
"What is at stake here is the right of survivors of human rights abuses to seek redress for their grievances, including torture, forced labor and sexual slavery," said Paul Hoffman, former legal director of the ACLU of Southern California, who has been litigating the cases since 1990 and will appear before the Justices tomorrow. "These cases send a message around the world that human rights abusers -- including the U.S. government -- are not above the law and cannot escape responsibility for their acts."
In Sosa v. Alvarez-Machain, 03-339, the ACLU is defending Dr. Humberto Alvarez-Machain's right to bring civil claims under the Alien Tort Claims Act against Francisco Sosa, who had been hired by officials at the Drug Enforcement Agency to kidnap Dr. Alvarez-Machain at his office in Guadalajara, Mexico. In United States v. Alvarez-Machain, 03-485, the ACLU is also defending Dr. Alvarez-Machain's right to bring claims against the U.S. government under the Federal Tort Claims Act for its role in arranging his kidnapping.
The Alien Tort Claims Act, enacted in 1789 and contained within the nation's first Judiciary Act, will be a central legal matter of deliberation before the Court. The Act, which the Court is reviewing for the first time, allows non-U.S. citizens to bring civil lawsuits for human rights abuses committed in violation of the law of nations or a treaty of the United States.
Siding with Sosa, the Bush Administration seeks to reverse the widely shared consensus of U.S. federal courts which since 1980 have recognized that violations of widely held international human rights norms can be redressed in U.S. courts. The Administration has also been joined by a number of multi-national businesses that are seeking to avoid potential liability under ATCA for any alleged complicity in human rights violations.
Dr. Alvarez-Machain was eventually awarded $25,000 in damages in his case against Sosa. In his appeal to the Supreme Court, Sosa -- supported by the Bush Administration -- is arguing that the Alien Tort Claims Act does not create a right to sue and the lawsuit therefore should have been dismissed.
Central to the second case, United States v. Alvarez-Machain, is the fundamental question of whether a person kidnapped by hired contractors of a U.S. government agency has the right to hold the United States accountable for those illegal actions under the Federal Tort Claims Act (FTCA).
As the lower courts have found, Dr. Alvarez-Machain's kidnapping was planned and supervised by DEA officials in the U.S. so that he could stand trial in the U.S. for his alleged role in the murder of a DEA agent in Mexico. In dismissing the case, the presiding judge called the government's charges against Dr. Alvarez-Machain "wild hunches and speculation."
After Dr. Alvarez-Machain was acquitted, he brought a lawsuit against the United States under the Federal Tort Claims Act. The U.S. government has argued that the Federal Tort Claims Act does not apply to activities that take place in other countries. However, the lower courts have generally found the FTCA applies when the unlawful activity was directed by government officials located in the United States -- an exception known as the "headquarters doctrine."
"Now the Supreme Court is faced with the decision either to affirm the role of U.S. courts in enforcing basic human rights principles or to concur with the Administration's claim that human rights violators can obtain a safe haven in the United States," said Steven R. Shapiro, Legal Director of the ACLU.
"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," Shapiro added. "More broadly, the ACLU's participation in these cases represents yet another step in our increased efforts to press international human rights norms in the U.S. courts as an added layer of protection for civil liberties."
Next month, the Court will have another opportunity to review U.S. actions with regard to international law, in challenges to the government's denial of due process to U.S. citizens designated as "enemy combatants" and to the indefinite detention of hundreds of foreign nationals at a military base in Guant'namo Bay, Cuba. The ACLU is participating as a "friend of the court" in those cases. For more information, go to http://www.aclu.org/court/courtmain.cfm
The ACLU's brief in Sosa v. Alvarez-Machain is online at http://www.aclu.org/court/court.cfm?ID=15152&c=261
The ACLU's brief in United States v. Alvarez-Machain is online at