Pubdate: Mon, 29 Mar 2004
Source: Wall Street Journal (US)
Copyright: 2004 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Authors: Jess Bravin And Robert S. Greenberger

DRUG CASE TESTS OLD TORT LAW IN HIGH COURT

When Congress set up the federal court system in 1789, it gave aliens the 
right to sue for "violation of the law of nations or a treaty of the United 
States."

Tomorrow, 215 years after the law was passed, the U.S. Supreme Court will 
consider what that sentence means. The ruling could have a major impact on 
how human-rights cases, and even lawsuits against terrorists, are pursued 
in the future.

The law, known as the Alien Tort Claims Act, was rarely cited and all but 
forgotten by the 19th century. But since 1980, human-rights groups and 
victims of atrocities have filed about 100 lawsuits under the statute, 
according to lawyer Eric Biel of Human Rights First, an advocacy group. 
Defendants have included former Philippines President Ferdinand Marcos and 
Radovan Karadzic, the Bosnian Serb leader and indicted war criminal. Some 
plaintiffs have targeted overseas operations of U.S. corporations such as 
Exxon Mobil Corp. and Unocal Corp., which face lawsuits for allegedly 
colluding with repressive governments in Indonesia and Myanmar to smooth 
the way for oil projects. Both companies deny the charges. Another current 
case seeks compensation from companies that supplied the apartheid regime 
of South Africa.

Business groups argue that the law has been wrongly exploited by activist 
lawyers and courts that have interpreted it too broadly. The Bush 
administration agrees. It further warns that the law as generally construed 
by appellate courts interferes with foreign policy by allowing aliens to 
file lawsuits that could embarrass foreign governments whom the U.S. seeks 
to enlist for the war on terrorism and other objectives. Opponents also 
argue that the original statute provides no authority to file suit, but 
only paves the way for Congress to do so should it adopt a separate act 
defining which violations can be addressed in court.

Supporters, including relatives of some victims killed on Sept. 11, 2001, 
counter that the law's very purpose is to allow private citizens who lack 
citizenship to vindicate rights that governments might find inconvenient to 
acknowledge. They note that less than a fifth of the cases brought under 
the law since 1980 have prevailed.

"Coming to this country and being able to sue somebody that killed your 
brother in your country...that's fantastic!" says Dolly Filartiga, a 
Paraguayan refugee whose lawsuit led to a landmark decision in 1980 that 
revived the alien tort law. Ms. Filartiga successfully sued a former 
Paraguayan police official who was living illegally in the U.S. for the 
torture-murder of her teenage brother, Joelito.

Like many alien tort plaintiffs, Ms. Filartiga has yet to collect a dime of 
her $10 million judgment, as the defendant returned to Paraguay and refused 
to pay. But she says the case was more than a moral vindication: It added 
to the pressure that led to the 1989 overthrow of strongman Alfredo 
Stroessner and the election of a democratic government in Paraguay.

A lawyer who represented Ms. Filartiga, Peter Weiss of the Center for 
Constitutional Rights in New York, says he and his colleagues unearthed the 
law in the early 1970s while searching for a way to help Vietnamese 
civilians sue over the 1968 My Lai massacre committed by U.S. soldiers. 
Although they weren't able to apply it to My Lai, Mr. Weiss says the 
activists concluded that torture victims could use the law under 
international law doctrines.

Eventually, they won backing from the Second U.S. Circuit Court of Appeals 
in New York. The 18th century "law of nations" had evolved into modern 
international law, Judge Irving Kaufman wrote, and "the torturer has 
become, like the pirate and the slave trader before him...an enemy of all 
mankind."

Mr. Weiss says the court made it clear that the law could be applied only 
in cases involving "something that's generally recognized as abhorrent, 
like torture."

The case before the high court tomorrow involves neither corporate 
liability nor the machinations of a repressive foreign regime. It stems 
from the 1985 abduction and torture-killing of U.S. narcotics agent Enrique 
Camarena-Salazar by drug lords in Guadalajara, Mexico.

The crime spurred Mr. Camarena's comrades in the Drug Enforcement 
Administration to launch a global manhunt for his killers. Among their 
suspects was Humberto Alvarez-Machain, a physician whom witnesses placed at 
the house where Mr. Camarena was kept. DEA officials believed he had 
prolonged the agent's suffering by keeping him alive for additional torture 
and interrogation.

Unable to secure Mexico's help in arresting Dr. Alvarez, DEA agents, using 
several Mexican accomplices, kidnapped him at gunpoint in 1990 and spirited 
him across the border to stand trial in Los Angeles federal court. But the 
judge directed an acquittal after finding the prosecution case was based 
purely on speculation. Released in 1992, Dr. Alvarez returned to Mexico and 
filed suit in U.S. District Court against the U.S. government, several DEA 
agents and their Mexican accomplices, claiming false arrest and other 
wrongs and seeking damages.

Most of the claims, including those against the U.S. government and its 
employees, were dismissed. Since Dr. Alvarez had been indicted by a federal 
grand jury, the courts found his detention in the U.S. legal. But the court 
did find that Dr. Alvarez's claim against Jose Francisco Sosa, a Mexican 
who helped in the abduction, was valid. Using the Alien Tort Claims Act, it 
ruled that the kidnapping violated international law against arbitrary 
detention and awarded Dr. Alvarez $25,000, a decision affirmed by the Ninth 
U.S. Circuit Court of Appeals in San Francisco.

Critics say upholding the award could jeopardize aspects of the war on 
terrorism. "A U.S. government employee or contractor working in a high-risk 
law enforcement, intelligence of military operation could be sued for their 
participation," says Mark Rosen, a retired U.S. Navy captain and specialist 
in defense and homeland-security issues. For example, if U.S. forces 
apprehend a terrorist suspect in Pakistan and fly him to the U.S., the 
suspect could bring a lawsuit similar to the one Dr. Alvarez brought, Mr. 
Rosen says.

But Dr. Alvarez's lead lawyer, Paul Hoffman of the Center for Justice and 
Accountability in San Francisco, says such fears are wildly exaggerated. 
"Alien torts have been applied to only a very narrow range of human-rights 
issues," he says. "The only reason corporations could have any unease is if 
they are engaged in projects [overseas] where fundamental abuses of human 
rights are going on."

In his brief in the case, Mr. Hoffman scoffed at the notion that the 
Alvarez case could "inhibit the war on terrorism, or inhibit cooperation 
between the United States and foreign governments."

Given the bizarre circumstances of the Sosa case, it's possible the Supreme 
Court will decline the chance to address the broader implications of the 
alien-tort law. Depending on what happens, says Mr. Biel of Human Rights 
First, it's likely that either human-rights groups or business lobbyists 
will ask Congress to revisit the archaic statute later this year.
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MAP posted-by: Jay Bergstrom