It's OK for foreigners to sue in U.S. courts — sometimes

By Gina Holland
The Associated Press

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The justices said a 1789 law permits lawsuits by foreign nationals in U.S. courts under certain circumstances. Human-rights advocates said the decision leaves room for cases that have been filed, while inviting more.

The law was cited earlier this month in a California lawsuit accusing two U.S. defense contractors of conspiring to torture, rape and kill Iraqi prisoners.

"U.S. courts are open," said Jennifer Green, an attorney for the Center for Constitutional Rights, which filed the lawsuit on behalf of some Iraqi detainees and the estate of an Iraqi man who lawyers said was tortured to death at Abu Ghraib prison.

But Richard Samp, an attorney with the Washington Legal Foundation, said the decision should sharply limit the cases.

The decision was the first by the Supreme Court on the U.S. Alien Tort Claims Act, a law that has been used by Holocaust survivors and relatives of people killed or tortured under despotic regimes from South America to the Philippines.

Businesses increasingly have become targets of the lawsuits. One case pending in California accuses oil giant Unocal of cooperating with human-rights violations in Myanmar, also known as Burma, including slavery, murder and rape.

The Bush administration and business groups had wanted the court to severely restrict the use of U.S. courts to enforce international law.

The court ruled 9-0 against a Mexican doctor who filed a lawsuit using the law but was divided 6-3 over the broader issue of where to draw the line for other lawsuits.

Justice David Souter, writing for the court, said that when the 1789 law was enacted, Congress envisioned only a "modest" set of lawsuits over such things as piracy and offenses against ambassadors.

Courts should consider cases involving claims that could have been brought then, Souter said, and may allow lawsuits involving violations of international legal principles that are universally recognized in today's world.
 
"Judicial power should be exercised on the understanding that the door is still ajar, subject to vigilant doorkeeping, and thus open to a narrow class of international norms today," he said. He alluded to the prohibition against torture as an example of such a norm.

Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas — the court's three strongest conservatives — did not join that part of Souter's opinion. "This court seems incapable of admitting that some matters — any matters — are none of its business," Scalia wrote for the three.

Douglass Cassel, an international-law professor at Northwestern University, said Souter's standard would include torture and massacres.

The Supreme Court said the law does not create a right to bring lawsuits like the one pursued by Dr. Humberto Alvarez-Machain, a gynecologist who was kidnapped from his office in Mexico in 1990 and brought to the United States to face trial in the death of a federal drug agent. The doctor sued the U.S. government after he was acquitted.

A sharply split appeals court in San Francisco had said federal drug agents acted illegally when they ordered the doctor's abduction by paid bounty hunters, without the involvement of Mexican officials.

But Souter said, "A single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment violates no norm of customary international law."

The court stopped short, however, of endorsing the practice of U.S. law officers covertly arresting suspects in other countries and bringing them to the United States for trial.