The “American Tort” Interpretation of the Alien Tort Statute

[Thomas H. Lee is the Leitner Family Professor of Law at Fordham Law School and a Visiting Professor of Law at Harvard Law School in 2012-13.]

The Alien Tort Statute (ATS), 28 U.S. C. §1350, says that an alien may sue in federal district court “for a tort only, committed in violation of the law of nations or a treaty of the United States.” The U.S. Supreme Court recently asked for briefing on the question “whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Implicit in the question is a seeming concession: an alien tort occurring within foreign sovereign territory is still cognizable under the ATS if the alien plaintiff alleges violation of a U.S. treaty, such as the United Nations Convention Against Torture (CAT). For instance, if an alien alleges torture against another alien in a foreign country, then presumably the claim would be actionable under the ATS, despite the fact that both plaintiff and tortfeasor are aliens and the tort occurred in the territory of a foreign sovereign. In this limited sense (where a ratified treaty may be pled), even the Supreme Court seems to acknowledge a “universal jurisdiction” angle to the ATS.

In an article I published in 2006 in the Columbia Law Review, I stated the view that the Alien Tort Statute had nothing to do with universal jurisdiction; it was, I argued, a pragmatic measure enacted by the First Congress in September 1789 to let aliens sue in the federal district courts for money damages in the event of harm to their persons or property when the United States had expressly or implicitly promised the aliens that no such harm would come to them. The ATS both provides a right of action and original jurisdiction in federal district court to aliens injured under circumstances implicating U.S. sovereign responsibility; it is therefore a federal law for purposes of Article III arising-under jurisdiction. Translated to a modern context, the ATS would plausibly be available to “extraterritorial” tort actions by alien detainees at Guantanamo Bay, and non-combatant aliens harmed in Afghanistan, Pakistan, or Yemen in the current war on terror. Such actions would be subject to immunities under the Federal Tort Claims Act, an after-enacted statute, with respect to most U.S. official defendants. And so the answer to the Supreme Court’s question about the extraterritorial application of the ATS is “whenever there is a tort occurring in the territory of a foreign sovereign the commission of which was the result of U.S. sovereign action or inaction when the United States had a duty under international law to prevent the injury to the alien plaintiff.”

The “alien” plaintiffs the First Congress most likely had in mind in enacting the ATS in 1789 were English creditors and merchants, including displaced Loyalists. American leaders were very eager to encourage these and other alien merchants to resume commerce with the agrarian United States, and the ATS signified a federal commitment to redressing any harm they might have suffered. The promise of alien safety by the United States was called a “safe conduct” in the technical language of the late eighteenth century. The modern equivalent of the safe conduct is a passport—the safe-conduct promise is made millions of times today, every time a U.S. immigration officer stamps a valid foreign passport for entry into the United States. Of course, we have come a long way from the age of sail and it would be impossible to enforce every such safe-conduct promised under the ATS as was originally intended. What is important to note is that international law, whether treaties or the law of nations, is not relevant for the substance of the harm alleged in an action under the ATS as originally intended; the right of action is a simple tort – a non-contract injury to person or property. The ATS’s specification of “a tort only, committed in violation of the law of nations or a treaty” was thus, on my view, not intended to describe the types of harm cognizable, but rather meant to limit which alien tort plaintiffs may sue – only friendly and neutral aliens, not enemy aliens to whom the United States owe no promise of physical security, except in certain special categories (prisoners of war, noncombatants, flags of truce).

Although upon enactment in 1789, the First Congress primarily intended the ATS to provide a federal forum for the remedy of broken promises of physical safety to alien merchants or creditors traveling within the United States or its territorial waters under the 1783 Treaty of Peace and other early treaties of amity and commerce, the statute’s open-ended wording quickly brought it to bear on the neutrality crisis of the early 1790s. The problem was private American sympathizers with the French cause who participated in actions against British interests that could reasonably be viewed as belligerent and thus in violation of the United States’ official policy of neutrality under its treaties and the law of nations. For instance, the ATS was successfully invoked by a French privateer (an alien plaintiff) in Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795), who had captured a British merchantman as prize and sailed her into Charleston harbor as against the alien cargo owners (and his possibly American agent, Darrel), who had seized the cargo (of slaves) after landfall in the United States. And, more famously, U.S. Attorney General William Bradford wrote an opinion letter in 1794, addressing an enquiry from the British government about whether there might be remedies in the U.S. national courts as against private Americans who had participated in a “cutting-out” expedition by the French fleet against the British colony of Sierra Leone and the nearby privately owned and operated slaving enterprise at Bance Island. Bradford’s opinion letter merits special scrutiny because it illuminates the early American understanding of the potential extraterritorial application of the ATS, notwithstanding the fact that a great deal had changed in the U.S. foreign policy landscape in the five years between congressional enactment in 1789 and executive-branch interpretation in 1794.

Bradford begins by saying that such attacks by American citizens can be “punishable by indictment” in US district and circuit courts as “offenses against the United States, so far as they were committed within the territory or jurisdiction thereof.” p. 58. The attacks against Sierra Leone were clearly not committed within the territory or jurisdiction of the United States, and so this statement is superfluous, as Bradford indicates in the next sentence: “So far, therefore, as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or punished for them by the United States.” This means that no legal action, criminal or civil, could be pressed against the American citizens in federal courts based on their acts insofar as they took place in territory under British sovereign control. The first clause says that the underlying “transactions” are “not within the cognizance of our courts” if they “took place in a foreign country” which I interpret to mean that civil lawsuits arising from the foreign transactions could not generate civil suits within the jurisdiction of U.S. federal courts. The second clause clearly indicates that Bradford did not believe any alleged wrongdoers could be subject to prosecution by U.S. criminal laws either–“neither can the actors be legally prosecuted or punished.”

Bradford’s view strongly supports my interpretation of the original meaning of the ATS: when a U.S. citizen commits a tort within the territory of a foreign sovereign which is at peace with the United States, the tort is not actionable under the ATS since the United States did not owe a safe-conduct obligation. By contrast, Professors Bellia and Clark, in a recent, characteristically thoughtful article in the University of Chicago Law Review, have argued that an ATS suit was available under these circumstances since the defendant was a United States citizen. Their view is that the ATS is available if the alleged defendant is a U.S. citizen—theirs is an American tortfeasor theory of the original meaning of the statute by contrast to my conclusion of American sovereign responsibility. Of course, in many instances, harm by an American tortfeasor implicates U.S. sovereign responsibility, but in some cases it doesn’t and in some cases American sovereign responsibility might be implicated even when the tortfeasor is not a U.S. citizen. Thus, in my view, a French merchant harmed by an English merchant in the port of Baltimore in 1794 could sue under the ATS, and an English merchant harmed by a U.S. citizen in a British crown colony could not. It may be useful to point out that in 1789, Americans were understood to be first and foremost citizens of the states and it is unclear whether American national leaders of the time would have relied on the concept of U.S. citizenship in enacting and interpreting a statute setting forth the original jurisdiction of the federal district courts.

It is useful to pause for a moment to consider the differing implications for corporate liability today of: (1) the universal jurisdiction theory of the ATS, (2) Bellia & Clark’s American-tortfeasor theory, and (3) my American tort or “safe-conduct” theory. Let us presume that a U.S. company, in competition with a French company, bids for and wins a natural-gas pipeline project in a foreign country, and local residents who are forcibly relocated for the project bring international human rights claims against the U.S. company under the ATS. Bellia & Clark would assert the claims to be actionable under the ATS since the alleged tortfeasor is a U.S. citizen; in my view, they would not be actionable since no U.S. sovereign action is implicated. Let us presume instead, that the French company were to win and be the defendant in an ATS suit, then on both my and Bellia & Clark’s views, the claims would not be actionable, but under the universal jurisdiction view they would be. To reiterate, the main difference between my view of the ATS and Bellia’s & Clark’s view is that they see the ATS as essentially an enactment of Article III alienage jurisdiction and therefore available whenever there is an American-citizen defendant-tortfeasor, whereas my approach focuses on whether the harm was an “American tort” in the sense of circumstances in which the United States caused the harm or was under a duty to prevent the tort to the alien victim and thus to pay money damages when the harm occurred. Not that it should matter, but from a pragmatic standpoint, my American tort understanding does not result in corporate liability only for U.S. corporations like Bellia & Clark’s theory, which might set back American competitiveness.

With apologies for the lengthy diversion into modern times, let us return to Bradford’s 1794 opinion letter. Recall that so far he has ruled out the possibility of criminal or civil jurisdiction in U.S. courts for any part of the harm caused by Americans within British territory or jurisdiction. He continues: “But crimes committed on the high seas are within the jurisdiction of the district and circuit courts of the United States; and, so far as the offence was committed thereon, I am inclined to think that it may be legally prosecuted in either of those courts, in any district wherein the offenders may be found. But some doubt rests on this point, in consequence of the terms in which the ‘Act in addition to the act for the punishment of certain crimes against the United States is expressed.’” The next sentence is crucial: “But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States, jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only….”

In my view, this last sentence, referencing the ATS, only applies to ATS jurisdiction for as much of the plunder, attack, etc, that occurred on the “high seas,” not in the British crown colony of Sierra Leone proper. Bellia and Clark in their article read this sentence as affirming ATS liability for torts by U.S. citizens in the British sovereign part of Sierra Leone. The “high seas” was a term of art at the time, and the general sense of it was that it was not within the sovereign power of any landlubbing sovereign. Indeed, American jurists would argue that it included inland fresh-water estuaries, like the Mississippi River and the Great Lakes connectors.

As applied to the Sierra Leone incident, recall that the alleged torts were committed in conjunction with a French fleet operation. Tellingly, Bradford’s opinion addressed a memorial brought by the Governor of Sierra Leone and the private “Propietors of Bance Island.” Bance Island was a privately-owned island with a fortress and booming slave trade. The British government did not own Bance Island although it subsidized it and gave it military protection from time to time. It was a lucrative target during the Anglo-French wars of the late 18th century, and it was the main target of the 1794 French fleet action. So Bradford is cleverly saying that the ATS is available if Bance Island is not British sovereign territory, which it plausibly was not under contemporary law of nations. In other words, he was aiming a subtle poke in the eye against British imperialism: “if you Brits want to say Bance Island is your territory then it is up to you to give damages to the plaintiffs, but if you concede that it is not British sovereign territory, then the plaintiffs may sue in our courts under the ATS.”

There is an interesting follow-up wrinkle that puts the universal jurisdiction view front and center. What if, as I have argued, Bance Island was “high seas” and not within the territory or jurisdiction of Britain but the tortfeasors included Dutchmen as well as Americans: would Bradford have been of the view that the flying Dutchmen could be joined as defendants under the ATS along with the Americans? This is a very hard question, I think. But my instinct is to stick with my American tort interpretation. That is to say, I believe that Bradford, and the First Congress, would not have thought that Dutch tortfeasors could be made defendants under the ATS with respect to their actions in a high-seas operation that was ultimately under French naval control and direction. It would have been a different ball game if the U.S. Navy had led the expedition, but what is reality today was hardly imaginable in 1789 or 1794.

Conclusion: What It All Means
Although it is only a statute, the ATS is a very special statute: it is a part of a historic enactment by the First Congress that forged the courts of the United States. (Of course, this does not vest it with infallibility—recall that section 25 of the same Act was struck down by Chief Justice Marshall in Marbury v. Madison.) The ATS was a commitment to something important, and, whether as judges, scholars, or as Americans, we should try to understand as best we can what this commitment by the founders of this country was. So far, the prevailing understanding has been that it was a commitment to international law qua international law, and more abstractly, the idea that the United States had opened its courts up to hear the grievances of any victim of international law violations anywhere in the world. This ambitious and imperialistic view of the ATS has raised the ire of many foreign governments and peoples, even those hospitably inclined to international human rights. I think that it is pretty clear that this idealistic view, however admirable, is not an accurate understanding of what a militarily weak, revolutionary tobacco republic would have desired to for its virginal national courts. Rather, the ATS reflected an importantly different principle: the United States should open its courts to redress injury to the person or property of foreigners it has a responsibility under international law to give basic physical security and safety to. Basically, the right principle of the ATS is “we should do no harm to others” not “everyone should do no harm to others.”