An additional puzzle about the Alien Tort Statute is that there seems to be no satisfactory account, so far as I know, of the US government response to ATS cases.

Sometimes the US government responds with a statement of interest; sometimes it does not.  Even when it does offer a statement of interest, my anecdotal impression (if there was data collected, I’d be very interested) is that the US government often responds late in the proceedings.  So far as I can tell – indeed, I’ve never heard anyone contradict this – there is very little about the USG response in ATS proceedings to suggest that it seeks to protect executive power or authority or authoritative expertise in pronouncing on international law or the foreign policy interests of the executive in ensuring, as a matter of principle, that these matters remain with the executive and not the courts.  There is little if anything in USG behavior to suggest that successive administrations since Filartiga have taken a stand on principle of seeking to rein in or otherwise narrow the ambit of the courts in these matters.  That seems to be true across decades and multiple administrations of each party.  I find this puzzling …

In 1949, a land that had for hundreds of years been home to Muslim peoples was forcibly seized by outsiders. They implemented a policy of ethnic dislocation and colonization. While some of the Muslims, chafing under the occupation, turned to terrorism,  the recalcitrant state refused to budge even until today.

And the occupied country is (more…)