Deference, Human Rights and the Federal Courts: The Role of the Executive in Alien Tort Statute Litigation

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In the early days of our nation's history, Chief Justice John Marshall articulated two principles that form the core of a growing debate regarding international human rights litigation. The first was argued before the House of Representatives in 1800. "The President," Marshall said, "is the sole organ of the nation in its external relations, and its sole representative with foreign nations." (1) The second principle came three years later in the Chief Justice's infamous Marbury v. Madison opinion. He wrote, "It is emphatically the province and duty of the judicial department to say what the law is." (2) In a simpler world these ideas regarding the separation of powers would be mutually exclusive: international diplomacy on the one hand and domestic jurisprudence on the other. However, in the real world, the two spheres of government collide, begging the question: what role is there for the courts in announcing and applying the law when that law affects the nation's external relations? Further, in the realm of international human rights litigation, where cases of torture scream out for justice, when is it appropriate for the courts to defer to Executive authority? How much deference should the courts give when the President, through the Department of State and the Department of Justice, announces that foreign policy concerns trump those of the private litigants? Though "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance," (3) a balance must be achieved between the concerns of the Executive and those of the litigants when those concerns are properly put before the court.

There are few areas in American jurisprudence where these issues are clearer than in the Alien Tort Statute (or Alien Tort Claims Act) (ATS) litigation that has come before the federal courts over the past twenty-seven years. Interestingly, the Alien Tort Statute was drafted nearly two hundred years before its recent ascent to the legal spotlight. The statute was passed with the Judiciary Act of 1789, and as codified in 28 U.S.C. [section] 1350, it states: "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." (4) In 1980 the seminal Second Circuit decision in Filartiga v. Pena-Irala breathed new life into the ATS and initiated a series of cases in which the lower courts applied Filartiga's principles to human rights claims arising under the law of nations (now known as customary international law). (5) These cases were affirmed, though to what extent is ambiguous, in the Supreme Court's 2004 decision: Sosa v. Alvarez-Machain. (6) Thus, Filartiga represented an important step in the realm of international human rights litigation. Its progeny represent an outlet through which plaintiffs, though aliens in this country, can use the federal judicial system to seek reprieve for human rights abuses committed against them abroad.

Most recently, a series of cases has been filed in district courts across the country alleging, inter alia, torture committed against plaintiffs in the People's Republic of China (PRC). (7) Under Filartiga and Sosa, it is clear that torture violates customary international law, and that, as such, torture is actionable under the jurisdiction of the ATS. (8) However, aside from the plaintiffs, defendants, and courts, the Executive Branch is a vital player in this litigation. The State Department has become involved in many of these cases, voicing its statements of interest and suggestions of immunity on behalf of the Chinese officials.

The question is, therefore, how much deference should the courts give the Executive Branch in ATS human rights litigation. The cases involving Chinese officials are particularly important due to the diplomatic dynamic between the United States and the PRC. The cases, thus, present an interesting backdrop against which to address this question. …


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