Kiobel Roundtable: The ATS Was About Protecting Safe-Conducts

by Thomas Lee

[Thomas H. Lee is Leitner Professor of Law at Fordham University School of Law. He is currently a visiting professor of law at Harvard.]

I agree with Meir that piracy is a “red herring”  and am writing to elaborate on his thoughtful remarks.  The thing that troubles me most about how the Court is thinking about this case is that it continues to accept the Sosa statement that the ATS is 2/3 about piracy and ambassadorial infringements, but not thinking at all about the 1/3 nebulous “safe conduct” violation which I have argued was the real purpose of the ATS.  106 Columbia Law Rev. 830 (2006).  Other scholars have agreed in the past that the ATS was likely not about ambassadorial infringements or piracy (e.g., Anne-Marie Slaughter in 1989 re ambassadorial infringements; Curt Bradley re piracy in 2002).

This conclusion becomes crystal clear when the Judiciary Act’s jurisdictional provisions are read as a unit.  Regardless whether holistic reading makes sense for the Constitution or other statutes, it surely makes sense for the First Judiciary Act, which was largely the work of Oliver Ellsworth and enacted by the first session of the First Congress to set up the federal courts for the first time.  Ambassadors can sue in the Supreme Court, with concurrent jurisdiction in state court under section 13 of the Judiciary Act (pages 851-64 of my article explain why), and piracy falls within the admiralty and maritime jurisdiction of the district courts under clause 2 of section 9 of the Judiciary Act, two clauses before the ATS which is the fourth clause in section 9.  People often seem to forget that the ATS is not a free-standing statute but just a clause in a section of a much bigger, iconic enactment.

The admiralty and maritime grant in clause 2 was exclusive with the exception of the saving to suitors clause to state courts; the ATS grant in clause 4 is concurrent with state and the federal circuits.  The admiralty jurisdiction would have been territorially limited because most actions (called “libels”) were in rem, but if a pirate ship were brought to a US port, it could be condemned and its captain and crew tried for piracy.  This is all explained in pages 866-71 of my article, and the tension with Bradford’s construction of the ATS in 1795 is explained at pages 889 to 895.

In my view, all of this is explicit from a careful reading of the Judiciary  Act.  It then raises the question of what exactly the ATS is about, and the safe-conduct is all that is left.  My article was an attempt to understand what exactly the late eighteenth century safe conduct was at international law, how it was understood by the First Congress, and what it means today.  My conclusion for what it means today was that the ATS was enacted “to redress common law torts brought by friendly or neutral aliens [thus, the tort was in violation of the law of nations or a treaty of the United States" promising safety] committed by private actors — including aliens– with a United States sovereign nexus, not for international law violations committed by anyone anywhere.”

3 Responses

  1. Response…
    Some early cases addressed violations of the laws of war and neutrality — wrongful seizure of ships, etc.  And the early AG Opinion in 1795 and Henfield’s Case in 1793 were addressing the international crime under customary international law of breaches of neutrality (as did several other AG ops. and some cases) and both addressed the Presidential Proclamation warning U.S. citizens about direct perpetrator as well as aider and abettor liability, which C.J. Jay in Henfield’s Case recognized was perfectly consistent with int’l law. As the Supreme Court recognized in Ex parte Quiring in 1942, this Court has applied the laws of war since the Founding, etc. (as it did, without any implementing legislation is some cases)

  2. sorry, that was Qurin, of course.

    The main point is that it is rather shocking and clearly ahistorical to claim that at the time the ATCA or ATS was formed, the only violations of the law of nations or treaties of the United States that the creaters of that facially unlimited act of congress had in mind would have been piracy, violecne against foreign officials, and safe conduct violations, especially when Henfield’s case, the President’s Proclamation, and the 1795 Op. of Bradford had addressed the crime of breach of neutrality in the context of war and the U.S. had long recognized that war crimes are violations of the law of nations, there were several other recognized international crimes (see, e.g., 51 Va. J. Int’l L. 977, 984-85 (2011)), and “denials of justice” to aliens had been of particular concern (see, e.g., 16 Fla. J. Int’l L. 249, 255 (2004)).

    Wilson, in Henfield’s Case, had recognized that the country should have a perpetrator repair the damage or provide reparation for breaches of neutrality (or prosecute), or else the country would become an accomplice in the breach of international law.   

  3. Response…
    Most clearly also, the substantive law that is expressly incorporated by reference in the ATCA or ATS is international law (customary law of nations and treaties of the United States), not common law.  The early cases and Ops. of AGs addressed violations of international law — and violations that occurred outside of the U.S. on foreign territory or the equivalent of foreign territory (e.g., on foreign flag vessels).  There were other federal statutes that had incorporated international law by reference.  Henfield’s Case involved prosecutions for violations of customary international law as part of the “laws of the United States” and violations of treaties without a special statutory base — and so did U.S. v. Hand, U.S. v. Liddle, etc., and see U.S. v. Ortega (U.S. 1826). The laws of war were incorporated for several purposes without a special statutory base (as famously recognized in Ex parte Quirin). 

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