The Torture Victim's Protection Act, the Alien Tort Claims Act, and Foucault's archaeology of knowledge.

• Author: Engle, Eric
• Position: Michel Foucault - Torture: Paradigms, Practices, and Policies

1. INTRODUCTION

   To understand the basis for any governmental action sanctioning torture, whether in tort or in criminal law, one must not only understand the legal issues involved, but also the societal and historical events which gave rise to those legal remedies. Modern international law universally condemns torture--as it rightly should--for both practical and theoretical reasons. This is one happy instance where law and morality are essentially congruent. Because of this need to understand both the legal realities, which result from the rejection of torture as a viable method of governmental action, and the historical backdrop thereto, my comments will first discuss the law pertaining to torture, followed by a brief look at the philosophy, history, and theory of medieval torture, and then conclude with a discussion of contemporary events that implicate or directly involve the modern practice of torture.

2. THE ATCA AND THE TVPA

   There are two statutes in American law with which I hope you are familiar: the Alien Tort Claims Act ("ATCA") (1) and the Torture Victim's Protection Act of 1991 ("TVPA"). (2) The TVPA and ATCA are two wonderful American laws. These laws grant persons, not even necessarily United States citizens, a cause of action in tort in the United States for torts that violate international law--such as torture. When I think of the ATCA and the TVPA, I can only imagine that Attorney General Ashcroft is throwing his hands in the air in frustration because until September llth, the United States could afford to say, we don't torture, we don't torture, we don't torture. Since facing the reality of domestic terrorism, the United States is asking itself, should it torture, should it torture, and it should not. These laws illustrate the political difficulties of whether or not the international community--especially the United States--will in fact respect what is the jus cogens norm (3)--namely, the norm against torture as a non-derogable international law. (4)

   The ATCA and the TVPA create a private right of action in the United States both for United States nationals under the TVPA and for foreign nationals under the ATCA. The ATCA is a jurisdictional statute. (5) It was enacted as a part of the first judiciary act of the United States in 1789. The ATCA provides that: "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." (6)

   The legislative history of the ATCA is unknown. The statute itself remained relatively dormant until Filartiga v. Pena-Irala. In Filartiga, an alien, Filartiga, successfully sued Pena-Irala, a non-citizen living in the United States, in a United States court, for torturing Filartiga's son to death in Paraguay. (7) The plaintiff succeeded on his claim, despite defendant's deportation to Paraguay prior to trial, because the court determined that torture is a violation of the law of nations, and thus was a valid basis for an ATCA claim. (8) The court noted that although the ATCA traces its origins to the Judiciary Act of 1789, the evolution of international law since that time requires courts to interpret and apply current international law to ATCA claims. (9) Filartiga was the first modern case to litigate the ATCA.

   The ATCA does not facially create an independent substantive cause of action. Rather, it grants jurisdiction in the United States to adjudicate torts in violation of the law of nations. (10) Since the ATCA does not permit United States citizens to sue, it deflects any criticism that the statute demonstrates partiality. Defendants may, however, be of any other citizenship.

   Filartiga has since inspired many cases--including class actions--either directly litigating ATCA claims, or at least mentioning them. (11) This issue is important enough that the Supreme Court has directly addressed the ATCA in at least two contemporary cases. (12) While in both of those cases, the Supreme Court did not question the legality of the ATCA under international law, it did deny plaintiffs access to the federal courts based on the defendants' sovereign immunity. (13)

   Not only has the Supreme Court not outright rejected the use of the ATCA to litigate claims before the American courts, Congress has expressed its approval of the use of the ATCA by enacting the TVPA. The TVPA extends to United States citizens a remedy for torture and extrajudicial killing that had previously been available only to aliens. (14) While the TVPA is not jurisdictional like the ATCA, it creates a substantive cause of action in tort. (15) "Private" torture may be recognized as a violation of the TVPA where the torture occurred under "color of law". (16) Like the ATCA, the TVPA requires exhaustion of local remedies. (17) Additionally, the TVPA subjects claims to a ten-year statute of limitations. (18) This ten-year statute of limitations was also applied to the ATCA, (19) although the ATCA itself is silent as to any limitation.

   1. Obstacles to Succeeding Under the ATCA/TVPA

   There are eight distinct domestic obstacles to using these private remedies against those who violate the law of nations; all of these obstacles result from current interpretation of United States law. (20) The more pertinent and relevant discussion focuses on how to meet and overcome these various obstacles.

   1. Jurisdictional Requirements

      Personal jurisdiction and subject matter jurisdiction present the first obstacle to finding liability under the ATCA. For example, in the case of An v. Chun, (21) Young-Kae An sued General Doo-Whan Chun, General Tae Woo Roh, and several other military leaders of Korea, alleging that they tortured his father to death. (22) The case, though factually similar to Filartiga, was dismissed due to a lack of personal jurisdiction over the defendants. (23) Though the defendants did occasionally visit the United States, their visits as government employees were not sufficient to trigger general jurisdiction. (24) One defendant did visit the United States at least once on vacation but that was not considered a sufficient "minimum contact" for specific jurisdiction. (25)

      What might appear to be a debilitating jurisdictional obstacle, however, need not always block a foreign plaintiff from successfully obtaining jurisdiction over a defendant in the United States. An should be contrasted with Wiwa v. Royal Dutch Petroleum Co., (26) where New York found it had jurisdiction over a foreign petroleum company, despite the availability of an arguably more convenient forum in England. (27)

   2. Exhaustion

      Exhaustion presents the second obstacle to a plaintiffs ATCA/TVPA claim. Plaintiffs making claims under the TVPA--and possibly also under the ATCA--must have first exhausted their local remedies. (28) In practice, however, the realities of lawless regimes indicate that the requirement of exhaustion of local remedies will not be problematic for litigants. (29) This obstacle is more theoretical than practical.

   3. Comity

      Comity is a third obstacle that a plaintiff is likely to face. (30) International comity has been defined as "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation." (31) Comity is a discretionary doctrine, often invoked by the forum jurisdiction upon its concluding that principles of fairness or judicial economy indicate that a foreign court would be a more appropriate forum for the cause of action. (32)

   4. Forum non conveniens

      Forum non conveniens is a discretionary jurisdictional defense. (33) A precondition for a finding of forum non conveniens is the existence of a foreign forum with jurisdiction to adjudicate. (34) If such a forum exists and would not refuse the suit for discretionary reasons, the court must then balance "any public interests at stake" (35) with the interests of the plaintiff and defendant. (36) Ordinarily the plaintiffs choice of forum will be respected, (37) but compelling circumstances can cause a court to reject a plaintiffs claim because of inconvenience either to the court, to the defendant, or to both. Essentially, the inquiry of the court is whether the choice of forum by the plaintiff is oppressive to the defendant. (38) If not, and if there are no compelling issues of judicial economy, the plaintiffs choice of forum will be respected. Thus I would argue forum non conveniens is a more objectively predictable obstacle than comity.

      In Wiwa, an Anglo-Dutch company was sued in the United States for a tort in Nigeria; the forum non conveniens objection was accepted at trial, but rejected on appeal. (39) The appellate court considered the substantive English law and balanced the interests of the United Kingdom, the United States, Nigeria, the plaintiffs, and the defendants in determining whether to sustain the defendants' forum non conveniens objection. (40) Before sustaining the objection, the trial court first had to find it had jurisdiction over the matter; to support its finding of jurisdiction, the trial court pointed to the fact that the defendants were listed on the New York Stock Exchange, and that they organized ancillary activities in the United States. (41)

      In terms of forum non conveniens, the Court of Appeals pointed out that although such a determination is generally at the discretion of the trial court, the trial court had failed to adequately consider two interests: (1) the fact that two of the plaintiffs were United States residents; and (2) the policy interest, implicit in federal statutory law, to provide foreigners with a forum for adjudicating claims of violations of the law of nations. (42) In other words, the United States' commitment to the rule of law is so important that when balancing competing interests, it may tip the balance in favor of adjudication in the United States.

   5. Act of State Doctrine

      Plaintiffs seeking recovery in United States courts should...