- The Washington Times - Tuesday, March 30, 2004

The U.S. Supreme Court yesterday considered whether foreign citizens have the right to sue in U.S. courts for breaches of international law in their home country.

The final ruling may affect U.S. companies that operate overseas, human rights cases and national security efforts.

The court considered the Alien Tort Claims Act, passed by the first Congress in 1789 — probably to combat piracy and assaults against ambassadors but increasingly used by human rights groups against multinational companies operating in developing nations.

The case before the Supreme Court does not involve any companies but legal experts said it could set a precedent for dozens of cases working their way through lower courts.

Justices may also set aside the question of whether foreign nationals can sue for human rights abuses in U.S. court, and rule on a narrower question of whether U.S. law enforcement can make arrests in foreign countries, the starting-point for the case before the court.

Humberto Alvarez-Machain, a Mexican citizen, was kidnapped from his Guadalajara, Mexico, office in 1990 and brought to the United States, where he was wanted for participating in the torture and murder of a U.S. Drug Enforcement Agency agent. Mr. Alvarez-Machain was acquitted and subsequently sued one of his abductors, Jose Francisco Sosa, in U.S. courts under the Alien Tort statute.

Lower courts found for Mr. Alvarez-Machain and the 9th U.S. Circuit Court of Appeals in San Francisco affirmed the decision.

Attorneys for the Bush administration and Mr. Sosa yesterday said that the original act does not create a right for aliens to use U.S. courts for personal injury claims based on violation of international law.

If the Supreme Court accepts the argument, lawsuits under the Alien Tort law would be severely restricted or eliminated.

Several Alien Tort cases are pending, including complaints against ChevronTexaco Corp. for abetting the Nigerian military as it killed villagers who protested the company, energy firm Unocal for abuses in Burma, and 20 firms such as IBM, Citigroup and General Motors for activities in apart-heid-era South Africa.

Business groups said that a raft of such suits could chill investment and trade, limit economic policy as a tool of foreign policy and ultimately harm the U.S. economy.

Human rights groups contend that the law is one of the few tools available to force torturers, perpetrators of genocide and other political killings to pay for their actions.

Justices yesterday probed both sides, asking why Congress would not simply amend or remove the law if they did not want foreign citizens to use it, how national security and actions against terrorists would be affected, and how broadly they should rule to close the case.

“Let Congress have a look at this,” said Justice Sandra Day O’Connor, suggesting a legislative change would be easy.

Justice Antonin Scalia questioned why the case would be brought in the United States, rather than Mexico. He also asked why courts, and not the executive and legislative branches, should be left to determine what constitutes international law.

“I find it to be a serious interference with the ability of the political branch to conduct foreign affairs,” he said.

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