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

AuthorWilliam E. Marcantel, Jr.
PositionJudge Advocate, U.S. Marine Corps
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).
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
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
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

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