Human Rights Boon or Time Bomb: The Alien Tort Statute and the Need for Congressional Action

• Author: William E. Marcantel, Jr.
• Position: Judge Advocate, U.S. Marine Corps
• Pages: 113-140

2013] ALIEN TORT STATUTE 113

HUMAN RIGHTS BOON OR TICKING TIME BOMB: THE

ALIEN TORT STATUTE AND THE NEED FOR

CONGRESSIONAL ACTION

MAJOR WILLIAM E. MARCANTEL, JR.*

It is nearly always the most improbable things that really come to pass.1

I. Introduction

In August 2014, U.S. forces, under a request for assistance from the

governments of Mali and France, are heavily involved in

counterinsurgency operations in northern Mali against the Movement for

Oneness and Jihad in West Africa (MOJWA) and other extremist

Islamist groups who have controlled the area for over two years. The

local Tuareg population actively supports MOJWA and the insurgency,

whose ultimate goal is to create an independent state of Azawad in

northern Mali. After repeatedly failing to control Tuareg population

centers, the Malian government authorizes the U.S. Joint Task Force–

Mali (JTF–M) commander to relocate by force certain groups of civilians

into internment centers in an attempt to separate insurgents from the

* Judge Advocate, U.S. Marine Corps. Presently assigned as the Assistant Staff Judge

Advocate, U.S. Marine Corps Forces, Central Command. LL.M., 2013, The Judge

Advocate General’s School, U.S. Army, Charlottesville, Virginia; J.D., 2009, University

of Missouri; B.A., 2001, Northwestern University. Previous assignments include

Defense Counsel, Camp Lejeune Branch, Eastern Region, Marine Corps Defense

Services Organization, Camp Lejeune, North Carolina, 2011–2012; Office of the Staff

Judge Advocate, Marine Corps Base, Camp Lejeune, North Carolina, 2009–2011

(Deputy Staff Judge Advocate, 2010–2011; Civil Law Officer, 2009–2010); Student

Judge Advocate, Funded Law Education Program, Columbia, Missouri, 2006–2009;

Inspecting Officer / Logistics and Assistant Operations Officer, Company C, Marine

Security Guard Battalion, Bangkok, Thailand (2005–2006); Platoon Commander, 1st

Battalion, 1st Marine Regiment, Camp Pendleton, California (Combined Anti-Armor

Team Platoon, Weapons Company, 2004–2005; Weapons Platoon, Company C, 2002–

2004). Member of the bar of Missouri. Previous publications include: Preemption of

Tort Lawsuits: The Regulatory Paradigm in the Roberts Court, 40 STETSON L. REV. 793

(2011) (with Dave Winters and Professor Christina Wells); Protecting the Predator or

the Prey? The Missouri Supreme Court’s Refusal to Allow Past Sexual Misconduct as

Propensity Evidence, 74 MO. L. REV. 211 (2009); Is it Hot in Here? The Eighth Circuit’s

Reduction of Fourth Amendment Protections of the Home, 73 MO. L. REV. 881 (2008).

This article was submitted in partial completion of the Master of Laws requirements of

the 61st Judge Advocate Officer Graduate Course.

1 ERNST HOFFMANN, THE SERAPION BRETHREN 48 (Alex Ewing trans., George Bell and

Sons 1908).

114 MILITARY LAW REVIEW [Vol. 217

civilians who are not directly participating in hostilities. Additionally,

the JTF–M implements the practice of destroying neighborhoods from

which rockets or mortars are fired at coalition forces by evicting

residents and bulldozing their homes.

The daily operation of the internment centers is conducted by Malian

military forces with JTF–M oversight and logistics support. Since the

inception of these centers, Non-Governmental Organizations (NGOs)

have criticized the U.S. and Malian governments over the poor

sanitation, inadequate living conditions, and near nonexistent healthcare

that contribute to hundreds of deaths from disease in the internment

centers. Additionally, internees are forced to work in fields to grow

crops for themselves and the Malian army. Finally, the international

press reports on credible allegations detailing the rampant abuse and

torture of interned civilians, including claims that U.S.

counterintelligence personnel are involved in enhanced interrogations of

internees suspected of affiliation with Al-Qaeda in the Islamic Maghreb

(AQIM).

In the fall of 2014, Tifrat Amazigh, a Tuareg woman, escapes from

an internment center where she is detained with her family after coalition

forces destroy their home following a rocket attack from their

neighborhood. When she flees, she leaves behind her 13-year-old son

and her husband, who are interned in a “special housing unit” for

suspected AQIM members where internees are allegedly tortured and

abused. She subsequently enters the United States as a refugee and files

suit against the JTF–M commander and the Secretary of Defense in their

personal and official capacities seeking injunctive relief and damages

under the Alien Tort Statute (ATS) on behalf of her husband, son, and

herself. The court issues a preliminary injunction, ordering an immediate

cessation of U.S. support to the internment centers and the practice of

destroying neighborhoods as reprisal against insurgent attacks. As the

litigation drags on and the injunction remains in effect, Malian forces are

pushed back by insurgent groups after the JTF–M is limited to serving in

an advisory role near the capitol, Bamako. U.S. maneuver battalions

await strategic lift to redeploy to the United States due to the inability to

conduct effective combat operations within the parameters of the

injunction.

Within this hypothetical scenario lies the potential power of a lone

sentence buried within the codification of jurisdictional statutes for

federal courts: “[t]he district courts shall have original jurisdiction of