Tort Claims for Torture in Iraq

[Sisk, Gregory C.]

I should have made clear that my analysis was limited primarily to the
Federal Tort Claims Act context.  However, while being less confident on
this point and moving to the edge of my area of study, I do not think a
Bivens claim would be viable here because of the extra-territorial nature of
the occurrence.  American courts generally have declined to recognize
customary rules of international law as a basis for causes of action in our
courts.  In any event, I simply do not anticipate that the Supreme Court
will give the Constitution extra-territorial effect by bootstrapping the
Eighth Amendment with customary international human rights law.  I certainly
can imagine, especially after the citations to foreign law in Lawrence, that
the Court increasingly will see international law as bearing upon the
content of the Eighth Amendment protection, but that's a different question
from applying the Constitution beyond the borders to non-citizens.

As I noted with respect to the FTCA context, to say that there is not a
cognizable cause of action in court is not at all the same as saying there
is not a right which should be recognized and remedied.  But in these kinds
of contexts, the remedy has been one extended through the democratic
political process rather than the courts.  Indeed, if it has not been done
already, I predict it will not be long at all before the Executive Branch or
the Congress provide for compensation for the victims of this incident,
quite aside from whether any court action could succeed.

As for the Alien Tort Claims Act, how it might apply (or not) in this
context will be better understood after the Supreme Court decides the
pending cases of Sosa v. Alvarez-Machain, No. 03-339, and United States v.
Alvarez-Machain, No. 03-485, which involves claims by a Mexican citizen who
had been indicted in the United States for involvement in the torture of a
DEA agent in Mexico and who was seized by agents of the United States in
Mexico and forcibly brought into this country to stand trial (where he was
acquitted of the criminal charges).  In that case, the Ninth Circuit
sustained the claim against the individual defendants under the ATCA and
against the United States under the FTCA (using the "headquarters" theory
for FTCA liability to override the "foreign country" exception, meaning
those issues will be clarified by this decision as well).  Before the
Supreme Court, the government and the individual defendant contend that the
ATCA merely provides jurisdiction in federal court for recognized torts
committed elsewhere but that international law does not give rise to tort
causes of action, that is, the "law of nations" is a source of law but does
not itself create private rights to court action.

And, Professor Miller is quite right, that the FTCA/Bivens analysis would
not apply to an independent contractor.  But again the Surpeme Court's
Alvarez-Machaim decision will shed some light on how it would apply in the
Iraq context.

Greg Sisk

-----Original Message-----
From: Francisco Martin [mailto:ricenter at igc.org] 
Sent: Thursday, May 06, 2004 6:16 PM
To: CONLAWPROF
Subject: RE: Tort Claims for Torture in Iraq


Prof. Sisk wrote in relevant part:
>(Note:  The Westfall Act does not apply to
> civil actions brought against government employees "brought for a
violation
> of the Constitution of the United States," 28 U.S.C. § 2679(b)(2)(A), thus
> meaning that it does not preclude a Bivens suit against the individual
> employees.  However, since the Constitution generally does not have
> extra-territorial effect, the Bivens option is probably unavailable here.)

COMMENT:  If one construes constitutional protections (such as the 8th
Amendment prohibition of cruel and unusual treatment) in  conformity with
the U.S.' customary international legal obligations, then a Bivens claim
may prevail because customary international human rights law clearly
establishes that human rights extend extra-territorially. 

Francisco Forrest Martin


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