Two myths about the Alien Tort Statute.

• Author: Bellia, Anthony J., Jr.

ABSTRACT

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application ofU.S. law to hold that the Alien Tort Statute (ATS) did not encompass a claim between aliens for misconduct that occurred in another nation. Without much elaboration, the Court stated that the ATS only encompasses claims that "touch and concern the territory of the United States ... with sufficient force to displace the presumption. " As it did in Sosa v. Alvarez-Machain, the Kiobel Court purported to rest its decision on the original public meaning of the ATS when enacted in 1789. The Court, however, misperceived the original meaning of the statute by accepting two mistaken historical claims about the ATS advanced by academics and lower courts. First, the Court accepted the notion that incidents involving the rights of ambassadors prompted the First Congress to enact the ATS. Second, the Court endorsed the idea that the ATS was originally meant to cover only three "torts" that corresponded to the three criminal offenses against the law of nations emphasized by Blackstone in his Commentaries--namely, torts against ambassadors, violations of safe conducts, and claims relating to piracy. Both propositions lack substantial support in the historical record and oversimplify the political context in which the statute was enacted. To address incidents involving ambassadors, the First Congress enacted distinct jurisdictional and criminal provisions, including vesting original jurisdiction over claims by ambassadors in the Supreme Court. Indeed, the First Congress enacted specific jurisdictional and criminal provisions to address all three of the "Blackstone crimes. " The ATS served a different purpose. Congress enacted the statute to cover a distinct category of claims by foreign citizens against U.S. citizens for acts of violence that none of these other provisions adequately addressed. The Court's reliance on these two myths in Sosa and Kiobel led it to misconstrue the ATS and, in certain respects, to unduly narrow the statute's application. In future cases, the Court should abandon these myths and recognize that the ATS was originally meant to apply (1) to a broader range of tort claims by aliens, and (2) only to claims against U.S. citizens--a jurisdictional limitation that the Court has yet to address.

INTRODUCTION

The Supreme Court has interpreted the Alien Tort Statute (ATS) in only two cases, both decided in the last decade. In both cases, the Court endorsed two myths about the ATS advanced by lower courts and academics. The first myth is that assaults on foreign ambassadors during the Confederation era prompted the First Congress to enact the ATS. The second myth is that Congress enacted the ATS in order to provide civil redress for three English crimes identified by Blackstone to punish violations against the law of nations. On closer analysis, neither proposition finds substantial support in the historical record. Rather, available materials suggest that the ATS was designed to remedy a distinct and historically important type of law of nations violation well known to the First Congress, but mostly overlooked today--namely, one nation's failure to redress violence by its citizens against the citizens of another nation.

As enacted in 1789, the ATS provided that "the district courts ... shall ... have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." (1) Litigants and judges rarely invoked this statute for nearly 200 years. Starting in 1980, certain lower federal courts began reading the ATS to allow aliens to sue other aliens in federal courts for violations of customary international law that occurred outside the United States. (2) In two cases this past decade, however, the Supreme Court interpreted the statute more strictly to deny relief. In 2004, in Sosa v. Alvarez-Machain, the Court held that the ATS encompasses claims based only on customary international law rules that are as definite and specific as the kinds of rules that it believed the First Congress originally intended the ATS to cover. (3) In the Court's view, Congress most likely meant the ATS to provide civil redress for three categories of criminal offenses against the law of nations that William Blackstone singled out for detailed explanation--violations of rights of ambassadors, safe conduct violations, and piracy. (4) In support of this view, the Court suggested that Congress enacted the ATS in response to incidents involving ambassadors during the Confederation era. (5) In 2013, in Kiobel v. Royal Dutch Petroleum Co., the Court treated both of these assertions--that incidents involving ambassadors prompted the ATS and that the ATS was originally meant to cover the three Blackstone crimes--as uncontroverted. (6) Proceeding from these assumptions, the Kiobel Court found another limitation on the reach of the statute. It held that the presumption against extraterritoriality applies to the ATS (even though it is a jurisdictional statute), and thus that the ATS does not apply to claims that fail to "touch and concern the territory of the United States ... with sufficient force to displace the presumption." (7)

In both Sosa and Kiobel, the Court purported to rest its decisions on the original meaning of the ATS as enacted in 1789. There is an inadequate basis in the historical record, however, to support the two claims endorsed by the Court. The claim that incidents involving the rights of ambassadors prompted the First Congress to enact the ATS neglects the fact that Congress covered such incidents in other contemporaneous provisions, and overlooks that other law of nations violations also threatened the peace and security of the United States--specifically, torts of violence against aliens. To be sure, assaults against ambassadors posed a greater threat to the peace and security of the United States than assaults against ordinary aliens. But both kinds of violations threatened the new nation's relations with foreign states. Not surprisingly, the First Congress enacted jurisdicdonal and criminal provisions to deal specifically with both kinds of incidents. Congress protected ambassadors by vesting the Supreme Court with original jurisdiction over claims involving ambassadors in the First Judiciary Act, and by making assaults against ambassadors a federal offense in the Crimes Act of 1790. (8) The First Congress also addressed violence against ordinary aliens by enacting the ATS. Rather than duplicate ambassadorial jurisdiction, the ATS gave federal courts jurisdiction to redress acts of violence by U.S. citizens against private foreign citizens, a distinct type of law of nations violation that neither the Supreme Court's ambassadorial jurisdiction nor any other statutory grant of federal jurisdiction would have adequately covered.

Likewise, there is little evidence to support the additional claim that the First Congress intended the ATS to encompass claims analogous to the three criminal offenses against the law of nations that Blackstone identified in his Commentaries--namely, violations of rights of ambassadors, safe conduct violations, and piracy. All of these crimes represented distinct law of nations violations that nations had an obligation to prevent and redress. The First Congress enacted other jurisdictional and criminal provisions to deal with each of these law of nations violations. The ATS dealt with a different problem. Although now generally overlooked by courts and scholars, the law of nations also imposed an obligation on nations to redress violence by their citizens against the citizens of other nations. Congress enacted the ATS to comply with this obligation by giving foreign citizens a federal forum for adjudicating claims against U.S. citizens for acts of violence regardless of the amount in controversy. No other jurisdictional provision covered such claims.

The two myths about the ATS that the Supreme Court perpetuated in Sosa and Kiobel led the Court astray in ascertaining the original meaning of the statute. In Sosa, the Court's belief that the ATS was meant to redress assaults against ambassadors and to cover only Blackstone's crimes led the Court to construe the statute too narrowly--specifically, to cover only law of nations violations akin to those crimes. (9) The better reading of the statute in its original political and legal context is that the First Congress authorized federal courts to hear a broader range of claims by private foreign citizens for acts of violence suffered at the hands of U.S. citizens, whether or not such claims corresponded to the narrower set of crimes identified by Blackstone.

In Kiobel, the Court reiterated and relied on the same two myths in holding that the ATS applies only to claims that "touch and concern the territory of the United States ... with sufficient force to displace the presumption against extraterritorial[ity]." (10) In 1789, any claim by an alien against a U.S. citizen for intentional violence--whether it occurred at home or abroad--would have touched and concerned the national security of the United States. Under the law of nations, the United States was obligated to redress all such injuries. If it failed to do so, the offended nation would have just cause to retaliate against the United States through reprisals or war. This obligation extended to injuries that U.S. citizens inflicted upon aliens outside of U.S. territory. Claims involving injuries inflicted by U.S. citizens outside U.S. territory were an important category of wrongs covered by the ATS because, short of extraditing the perpetrator, providing civil redress was the only way that the United States could avoid justified retaliation by the victim's nation.

This Article revisits the two myths...