Assessing the proper relationship between the Alien Tort Statute and the Torture Victim Protection Act.

• Author: Mariani, Philip

INTRODUCTION I. THE HISTORY AND DEVELOPMENT OF THE ATS/TVPA RELATIONSHIP A. The "Legal Lohengrin": Early History of the ATS B. Rejuvenation of the ATS: Filartiga and Its Progeny C. Congressional Response: The Torture Victim Protection Act of 1991 D. Pre-Sosa Interaction Between the ATS and the TVPA E. Sosa v. Alvarez-Machain: The Supreme Court Speaks (on the ATS, at Least) F. Post-Sosa Interaction Between the ATS and the TVPA and the Current Prevailing Precedent II. ENAHORO V. ABUBAKAR AND ARGUMENTS FOR "OCCUPYING THE FIELD" A. Overview of the Case B. Occupation: Rationale and Consequences III. A CASE AGAINST OCCUPATION: ARGUMENTS FOR A SUPPLEMENTAL INTERPRETATION A. Statutory Language, Structure, and Intent B. The Spirit of Sosa: The Supreme Court's Take on the ATS, the TVPA, and Judicial Restraint 1. The Sosa Court's Treatment of the TVPA 2. The Sosa Court's Call for Judicial Caution C. Consequences of a Supplemental Reading 1. Access to Courts and Imbalance in Treatment 2. Compliance with the Norms of International Law . 3. Meaningfulness of the TVPA Under a Supplemental Reading IV. REVISITING THE PREVAILING PRECEDENT CONCLUSION INTRODUCTION

On October 17, 2005, a bill entitled the Alien Tort Statute Reform Act was introduced in the Senate, proposing to amend 28 U.S.C. [section] 1350 in order to, among other things, "clarify jurisdiction of Federal Courts over a tort action brought by an alien." (1) To those who have tangled with this section of the U.S. Code over roughly the past three decades, the proposal of such legislation to amend it likely comes as no surprise: the proper interpretation of [section] 1350 and the provisions contained therein has generated much debate among courts and legal scholars alike. Section 1350, commonly known as the Alien Tort Statute (ATS), (2) was originally enacted in 1789 and guarantees, in its current language, that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only,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." (3) Another provision under [section] 1350, the Torture Victim Protection Act of 1991 (TVPA),4 is related to the ATS and is over two hundred years its junior. Codified as a note to the ATS, the TVPA provides a federal cause of action to aliens and U.S. citizens for certain claims of torture and extrajudicial killing. Namely, it states that

[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death. (5) In addition to creating this explicit basis of liability, the TVPA sets out terms and requirements that further define the cause of action it provides. For instance, the TVPA includes detailed definitions for "torture" and "extrajudicial killing," (6) and also establishes a statute of limitations (7) and an exhaustion of remedies requirement (8)--all of which apply to any claim brought under the TVPA.

In terms of form, then, the ATS and the TVPA are an exercise in contrasts. The ATS, enacted at the outset of this nation's history, speaks in terse, open-ended, and somewhat cryptic language, offering little to define its terms, scope, or even nature. For instance, on its face, the ATS does not make clear whether it provides only a grant of federal jurisdiction for certain claims or also creates an implicit cause of action for those claims. Nor does it indicate what exactly is meant by the "law of nations" or what constitutes a "tort ... in violation" of it. The TVPA, on the other hand, is a more recent and detailed expression of legislative will, and provides significantly more guidance to those seeking to interpret and apply it. The TVPA creates an explicit cause of action for a narrow set of conduct, precisely defines that conduct, and details the manner in which that cause of action must be pursued. In short, it lacks the fundamental ambiguity that characterizes the ATS.

For all its clarity and detail, however, the TVPA is silent on at least one significant point: How exactly should it be understood to interact with the ATS? More particularly, to what extent should the TVPA be considered to inform or limit the causes of action that the ATS may support? Though the two statutes are codified in the same section of the U.S. Code, neither offers any clear indication as to how it is supposed to fit with the other. The nature of this relationship has emerged as one of many uncertainties that federal courts have had to address regarding the proper interpretation of [section] 1350, largely without assistance from Congress or the Supreme Court. This Comment attempts to identify the contours of this uncertainty, and suggests, based on the little guidance that Congress and the Supreme Court have given, the appropriate manner in which federal courts should construe this statutory relationship.

Part I of this Comment summarizes the history of the ATS/TVPA relationship and outlines the prevailing precedent that has emerged in the federal courts regarding how the two statutes should be understood to interact. Courts generally have held that the TVPA should be read as supplemental to, rather than preclusive of, the ATS, and thus that the ATS and the TVPA are both able to support their own distinct yet potentially overlapping causes of action for alien plaintiffs' claims of official torture and extrajudicial killing. (9) That said, courts have not treated these statutes as fully independent of one another, but rather have often imported some (but not all) of the terms and requirements from the more detailed TVPA into their ATS analyses. (10)

In Enahoro v. Abubakar, however, the Seventh Circuit rejected this prevailing supplemental interpretation of the ATS/TVPA relationship, and held instead that the TVPA should be read to "occupy the field" of the ATS with respect to claims of official torture and extrajudicial killing. (11) Under this preclusive interpretation, alien plaintiffs seeking to bring such claims must do so under the TVPA, not the ATS, and thus must comply with all of the TVPA's terms and requirements. Discussion of this decision and the arguments on its behalf constitutes Part II of this Comment.

Part III then argues that the Seventh Circuit's preclusive interpretation, though it has its appeal, nonetheless produces an inappropriate result for courts to follow. Instead, a supplemental understanding of the two statutes corresponds most closely with the limited guidance that Congress and the Supreme Court have offered on the matter, (12) and creates an interaction between the statutes that allows both to retain a meaning and value in the statutory scheme that most accurately reflect their respective language and purposes. (13)

This rejection of the Seventh Circuit's preclusive interpretation, however, does not necessarily amount to a wholesale endorsement of the prevailing precedent in other circuits. Building off of Part III's analysis, Part IV examines how a supplemental understanding of the ATS/TVPA relationship can be applied most properly to the details of the interactions between the statutes and, in so doing, suggests how the prevailing precedent may be modified so as to respect more completely this supplemental understanding.

1. THE HISTORY AND DEVELOPMENT OF THE ATS/TVPA RELATIONSHIP

   1. The "Legal Lohengrin": Early History of the ATS

      The ATS was initially enacted as part of the Judiciary Act of 1789, (14) and its language has survived with relatively few modifications for over two hundred years. (15) Beyond that, not much can be said definitively about the origins of this statute or the intentions underlying its enactment. As the Supreme Court noted in its recent treatment of the ATS in Sosa v. Alvarez-Machain, the statute suffers from a "poverty of drafting history," which has prevented "a consensus understanding of what Congress intended" from forming, "despite considerable scholarly attention." (16) Moreover, the ATS was seldom invoked and applied in the courts for nearly two centuries following its enactment, further frustrating any efforts to pin down the original contours and intentions of this statute. (17) Such ambiguous origins led Judge Friendly to aptly describe the ATS as a "legal Lohengrin; ... no one seems to know whence it came." (18)

      What little information courts and legal scholars have been able to glean regarding the early life of the ATS has yielded much speculation but limited cohesive insight. As one commentator has noted, "Some scholars speculate that the framers of the statute designed the legislation in order to avoid conflicts with other nations over mistreatment of non-U.S. citizens," thus characterizing the ATS as an effort "to provide national security at a time when the United States, a newly formed nation, was seeking a foothold in its diplomatic relations with other nations." (19) Other scholars have explained the original intent of the ATS more narrowly, "limit[ing] the purpose of its enactment to providing the legal foundation to protect the rights of foreign ambassadors" (20) or "to provid[ing] jurisdiction only in maritime cases dealing with prizes." (21) Though none of these particular perspectives has proven to be more authoritative than the others per se, (22) they all, at the least, support the generalized conclusion that the ATS, through its plain language and historical context, was enacted to ensure some form of previously unavailable civil remedy to aliens in U.S. federal courts for certain violations of the law of nations. (23) Beyond this level of generality, the ATS--with its terse language, scant legislative history, and rare invocation in the courts prior to the...