Academic journal article Albany Law Review

The Torture Victim's Protection Act, the Alien Tort Claims Act, and Foucault's Archaeology of Knowledge

Academic journal article Albany Law Review

The Torture Victim's Protection Act, the Alien Tort Claims Act, and Foucault's Archaeology of Knowledge

Article excerpt


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.


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. …

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