Aliens and the War on Terror

Imagine if, tomorrow, the United States were to locate Usama bin Laden in a small town in Pakistan.

Could U.S. troops swoop down and capture him? Assuredly they could, if Pakistan consented. But what if Pakistan did not consent or if we found bin Laden in some country, such as Iran, that would probably object to U.S. intervention?

The possibility certainly raises delicate questions of international law and relations — but it also surprisingly raises a question of American law. A recent decision by the Ninth Circuit in California suggests that bin Laden might actually be able to sue his military captors in U.S. courts and get paid money damages for the violation of his international right against arbitrary abduction. The Supreme Court has agreed to review the case.

At the heart of the issue lies the Alien Tort Claims Act (search), a law passed by the very first Congress in 1789. The statue says that U.S. courts have jurisdiction to hear suits by foreigners (called "aliens") if they allege an injury that occurred because of a violation of "the law of nations." The origin of this provision is not 100 percent clear, but it seems likely the law was intended to allow foreign citizens to sue to recover property seized by pirates when the pirates attempted to dispose of their stolen booty in American ports.

In recent years, however, the statute has mutated. In 1980, a federal court held that the Alien Tort Claims Act also allows aliens to sue if they are injured in violation of international law — for example, through torture. This development initially arose in the context of aliens seeking to use American courts to secure judgments against foreign dictators — people such as Ferdinand Marcos (search) and Zimbabwe's Robert Mugabe (search).

In the last decade, an additional twist to the law has developed. Using traditional ideas of tort liability, human-rights plaintiffs have brought suits against American businesses, such as Exxon-Mobil and Coca Cola, under the theory that their actions in foreign countries supported the human-rights abuses of the dictators with whom they were doing business.

There are, for example, suits pending now against companies that did business with the dictators of Burma or in South Africa under the apartheid (search) regime. Some see this as a good development — but as a consequence the government has had to offer financial protections to companies that are helping to rebuild Iraq because they're afraid of being sued.

And then still another twist: Whatever you think about suits against American companies, the same principle allows suits against individuals. And so the Ninth Circuit has allowed a Mexican doctor to sue the Drug Enforcement Agency. The DEA sought the abduction of the doctor (without Mexico's consent) to answer an indictment that he had participated in the torture and killing of a DEA agent. The doctor was acquitted of the charge and now says that his abduction violated international law — and that the United States owes him money damages.

But the legality or illegality of a trans-border arrest is independent of the doctor's acquittal; he would have a suit even if he'd been convicted, because his complaint is about the process by which he was brought to the United States, not the end result. And if he has the basis for a tort suit, then will Usama bin Laden?

We've come a long way from the days of piracy on the high seas, and it's high time that the High Court clarified this highly unusual law.

Paul Rosenzweig is senior legal research fellow in the Center for Legal Judicial Studies at  The Heritage Foundation, a Washington-based public policy institution, and adjunct professor of law at George Mason University.