Tort Claims for Torture in Iraq

Fri May 7 16:19:09 PDT 2004

Everything that you say about the Westfall Act makes a lot of sense to 
me.  If the general rule is sovereign immunity even for government 
employees, the existence of a cause of action under customary 
international law would not change that.  I don't think you are correct 
on customary international law not providing a cause of action.  After 
all, what did Paquete Habana involve if not a cause of action for 
violation of customary international law.  (Also, I think your reading 
of the ATCA ignores the way statutes were written in 1791.  While I am 
not an expert in legal history, I don't believe attorneys thought in 
terms of causes of action in 1791.  Statutes provided for jurisdiction 
and then the common law (and the law of nations as part of the common 
law) filled in the rest. -- The Respondents brief  in Alvarez Machain 
does not go this route, but does do an amazing job making the historical 
argument that the customray international law provides the cause of 
action.)

Jonathan Miller

Sisk, Gregory C. wrote:

>Demonstrating the danger of ranging too far afield from my expertise on the
>law of federal sovereign immunity, and pertinent statutes, I was imprecise
>in my language in my earlier posting regarding customary international law
>as a cause of action.  While in one sense, I was literally correct, the
>statement was misleading (read: wrong) about what the lower courts have done
>(although it remains to be see in the Alvarez-Machain case whether the
>Supreme Court will go along).  In the end, however, the thrust of my
>analysis -- which was focused upon the federal government and its employees
>as potential defendants -- remains unchanged.
>
>First, what I should have said was that American courts generally have
>declined to recognize customary rules of international law as a basis for
>private rights of action in domestic courts.  That statement is correct, but
>I realize in this particular context ends up being misleading.  A lawsuit
>that alleges nothing but customary international law as the basis for suit
>in any American court is doomed to fail. But as Mr. Martin correctly notes,
>the Alien Tort Claims Act may provide the statutory foundation for giving a
>judicial remedy for violations of some elements of customary international
>law.  Most (but not all) of the lower federal courts have held -- not that
>customary international law creates a private right of action or a cause of
>action -- but that the Alien Tort Claims Act creates a private right of
>action.  Then, these courts have held, certain rules of customary
>international law (those that are universal, obligatory, and legal in
>nature) may provide the content of the cause of action created by the ATCA.
>Claims of abuse of prisoners, at least if it rises to the level of torture
>and humiliation (as here) qualify.
>
>Of course, one of the very issues before the Supreme Court in
>Alvarez-Machain is whether the majority of lower courts have been correct in
>seeing the ATCA as more than a mere jurisdictional provision.  A minority of
>courts, and the position of the government before the Supreme Court, is that
>the ATCA provides a forum for aliens alleging well-recognized torts
>committed elsewhere but does not itself create a private cause of action.
>(Another issue in Alvarez-Machain is whether abduction abroad of a foreign
>citizen who has been indicted in the United States is, in fact, a violation
>of a sufficiently clear and established mandatory rule of customary
>international law.)  The ATCA provides:  "The district courts shall have
>original jurisdiction 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." 28 U.S.C. ' 1350.  Looking at the language only, and admitting here
>I have no particular expertise on this statute, it could be seen as merely
>providing for jurisdiction -- it is a jurisdictional statute after all --
>but at the same time it appears to contemplate that such rights of action --
>torts that violate "the law of nations" -- do exist.  How does that all
>balance out, and what do other sources such as history offer?  This is where
>I clearly reach the end of my expertise and thus say no more.
>
>Second, however, returning to the topic on which I do profess some expertise
>and which was the focus of my earlier posting -- that is, possible claims
>against the United States -- the ATCA leaves my analysis unaffected.  The
>Supreme Court has ruled that the ATCA is not a waiver of sovereign immunity
>and thus may not be used as a basis for suit against a foreign government.
>Argentine Republic v. Ameranda Hess Shipping Corp., 488 U.S. 428 (1989).
>The federal courts have recognized that this means the ATCA may not be used
>as a basis for a suit against the United States either that could not be
>maintained under the Federal Tort Claims Act. Goldstar (Panama) S.A. v.
>United States, 967 F.2d 965 (4th Cir. 1992); Sanchez-Espinoza v. Reagan, 770
>F.2d 202 (D.C. Cir. 1985) (holding that the ATCA does not waive the
>sovereign immunity of the president).  Thus, the ATCA cannot be used to sue
>the United States in circumstances where the limmitations of the FTCA would
>preclude recovery.
>
>Third, what then about suing the federal employees directly (rather than the
>government)?  As I noted previously, the Westfall Act bars suits against
>federal employees for tortious wrongdoing committed in the scope of
>employment, requiring substitution of the United States as the sole
>defendant, even if the United States proves to be immune under the FTCA (and
>thus effectively denying any judicial remedy).
>
>The exceptions in the Westfall Act are (1) for so-called constitutional
>torts, that is, Bivens suits, and (2) for suits that are "brought for a
>violation of a statute of the United States under which such action against
>an individual is otherwise authorized."
>
>As to the Bivens exception, I stand by my statement that this implied right
>of action under the Constitution will not be expanded to include allegations
>of a violation of non-constitutional norms under international law that
>occurred abroad.
>
>Neither does it appears that the exception in the Westfall Act for violation
>of another statute would apply here as there does not appear to be a statute
>directly on point which both was violated and which by its own terms
>authorizes suit against that individual.  And the ATCA doesn't qualify as
>such a statute.  The Ninth Circuit, although otherwise broadly reading the
>ATCA and the FTCA to impose or authorize liability, did rule that because
>the ATCA does not itself create any obligations or duties and thus is not
>such a statute within the meaning of the Westfall Act.  Accordingly, the en
>banc Ninth Circuit agreed (and was unanimous on this point) that the United
>States must be substituted for any individual employee sued under the ATCA.
>Alvarez-Machain v. United States, 331 F.3d 604, 631-32 (9th Cir. 2003), cert
>granted, 124 S. Ct. 821 (2003).
>
>Thus, the ATCA and its incorporation of international law norms may not be
>used against individual federal officers or employees either. (Note that the
>Westfall Act would not immunize an independent contractors, so the ATCA
>question for those individuals would turn on the answer to the first
>question I raised above.)
>
>Fourth, there is one further statute to consider, but by its plain language
>does not appear to apply here, the Torture Victim Protection Act, which is
>not codified but appears at Pub.L. 102-256, 106 Stat. 73 (1992).  This
>statute -- unlike the ATCA does clearly and expressly create a cause of
>action for inflicting torture, but only against an individual acting "under
>actual or apparent authority, or color of law, of any foreign nation."
>Thus, it would not appear to apply to the United States government as an
>entity or American officials or employees individually.  Even if the
>argument could be made that American servicemembers were, indirectly, acting
>under color of the law of Iraq, the use of the TVPA would run into the same
>sovereign immunity/FTCA/Westfall Act rules as described above for the ATCA.
>
>In sum, unless the various obstacles under the FTCA that I outlined earlier
>are overcome, a judicial remedy here seems unlikely.  But I again note that
>such episodes in the past have led to legislation or other government action
>to provide compensation outside the litigation process.
>
>Greg Sisk
>
>-----Original Message-----
>From: Francisco Martin [mailto:ricenter at igc.org] 
>Sent: Thursday, May 06, 2004 9:38 PM
>To: CONLAWPROF
>Subject: RE: Tort Claims for Torture in Iraq
>
>Prof. Sisk wrote in relevant part:
>
>  
>
>>. . . 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. 
>>    
>>
>
>
>COMMENT:  I was not arguing that the Bivens claim was a customary
>international law claim per se.  I was arguing that a constitutional
>CONSTRUCTION in conformity with the U.S.' customary international legal
>obligations would provide a Bivens claim.  Even so, I cannot understand
>your claim that "American courts generally have declined to recognize
>customary rules of international law as a basis for causes of action." 
>Every court dealing with an ATCA claim has done so.
>
>Prof. Sisk continues:
>
> >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.
>>    
>>
>
>COMMENT:  What better case could there be for construing the Eighth
>Amendment in conformity with customary international law than a case
>concerning extraterritorial application?  Extraterritoriality is the
>special domain of international law, and the Eighth Amendment already has
>been construed in conformity with customary international law by the SCOTUS.
>
>Francisco Forrest Martin
>
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>  
>

-- 
Jonathan Miller
Professor of Law
Southwestern University School of Law
675 S. Westmoreland Ave.
Los Angeles, CA 90005-3992
Tel. 213-738-6784

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