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Debating the Alien Tort Claims Act

The debate surrounding the use of the Alien Tort Claims Act (ATCA) has become increasingly heated. Opponents of using the act as a tool in human rights litigation suggest that such cases could lead not only to a downturn in American business abroad, but to "frivolous" lawsuits. For example, the ATCA might be called upon when a company's materials were used in U.S. military campaign. Paul Rosenzweig of the The Heritage Foundation speculates that allowing ATCA cases to go forward could even "stymie the rebuilding of Iraq." Those groups on the other side, like Human Rights Watch, contend that "the Alien Tort Claims Act is one of the only tools [we] have to make human rights abusers pay for their actions."

Below are voices from both sides of the debate and links to provide additional information. Make up your own mind and discuss your thoughts on the topic.

Against the Use of the ActFor the Use of the Act
"[Use of the Act] raises significant potential for serious interference with the important foreign policy interests of the United States."

- Amicus brief filed by the Department of Justice in favor of the defendants in Doe v. Unocal

"The human rights abuses alleged by these suits, whether in Burma or Indonesia or Nigeria, usually already have been documented and condemned by the State Department. If the courts find for the plaintiffs in any of these cases, they will be saying nothing about the conduct of the foreign government in question that has not already been said by the U.S. government. All they will be adding to the record is that a private company was legally complicit in that conduct."

- Human Rights Watch

The use of excessive force - or complicity in its use - by law enforcement agencies is at the root of many of the cases brought under the Act. Many countries already criticise American police for using excessive force. Consider what they might do if provided with legal authority to try US nationals. Could Janet Reno, the former US attorney-general, be hauled into court by a relative of one of the Branch Davidians who died in the 1993 stand-off in Waco, Texas?

Unless Americans are prepared to accept these risks, as well as the accompanying danger that the US judicial system will become the world's civil court of first resort, the US government needs to act now to curb misuse of the Alien Tort Claims Act.

- "The Very Long Arm Of American Law," Thomas Niles, FINANCIAL TIMES, November 5, 2002 president of the United States Council for International Business

"The Alien Tort Claims Act has been interpreted to apply only to genocide, war crimes, piracy, slavery, torture, unlawful detention and summary execution. The Torture Victims Protection Act is limited to torture and summary execution.

There is no room for moral relativism. American credibility in the war on terrorism depends on a strong stand against all terrorist acts, whether committed by foe or friend. Our credibility in the war on terrorism is only advanced when our government enforces laws that protect innocent victims. We then send the right message to the world: the United States is serious about human rights."

- "The Court of Last Resort," Arlen Specter, NEW YORK TIMES, August 7, 2003. Arlen Specter, R-PA, is a member of the US Senate Judiciary Committee.

For years, U.S. business has sought to halt the proliferation of litigation-run-amok in the courts by restoring fairness, balance, efficiency and consistency to the U.S. civil justice system...Expansion of this problem into the international arena via ATCA promises nothing but trouble for U.S. economic and foreign policy interests worldwide. This is why ATCA's misuse must be checked -- and efforts to obtain its repeal must begin -- now! U.S. national interests require that we not allow the continuing misapplication of this 18th century statute to 21st century problems by the latter day pirates of the plaintiffs' bar.

- "The Alien Tort Claims Act: Is Our Litigation-Run-Amok Going Global?," John E. Howard, vice president of international policy and programs at the U.S. Chamber of Commerce.

There is no factual evidence to suggest that ATCA will cause a flood of new litigation in U.S. courts. Indeed, lawyers began using ATCA as a human rights tool twenty-four years ago. About eighty cases have been filed in those twenty-four years, and about one-third of them have been dismissed in preliminary motions. This number is hardly enough to warrant fears of a judicial system too burdened to function efficiently...Only 20 have involved corporate defendants, and roughly half of those have been dismissed, an indication that the judicial system remains effective at ensuring that only credible allegations make it to court."

- The Center for Constitutional Rights

More on the debate of the Alien Tort Claims Act

Harvard Cyberlaw — The Alien Tort Claims Act
This study aid for law students presents a history of several cases related to the Alien Tort Claims Act. There are extensive case citations for those who want to research the cases in greater depth.

Global Policy Forum's Alien Tort Claims Act Library
The Global Policy Forum is a non-profit, tax-exempt organization, with consultative status at the United Nations. This section of their Web site collects articles and analysis both for and against the use of the Alien Tort Claims Act in recent years. Sources range from THE WASHINGTON POST to the HARVARD LAW REVIEW.

Human Rights Watch — Defend the Alien Tort Claims Act
Human Rights Watch, an independent, nongovernmental organization, has come out strongly in favor of using the ATCA to address human rights abuse claims. Their site contains rebuttals to arguments against the use of the act and several case studies of actions brought using ATCA in recent years.

USA*Engage — Alien Tort Provision (ATP)
USA*ENGAGE is a coalition of over 670 small and large businesses, agriculture groups and trade associations, which "is working to seek alternatives to the proliferation of unilateral U.S. foreign policy sanctions." USA*ENGAGE has joined The National Foreign Trade Council in filing an amicus brief in the Doe v. Unocal case on the side of the defendants. Their Web site contains a list recent ATCA cases and links to many anti-ATCA case writings. Titles include "Abuse of Power," by Patti Waldmeir of THE FINANCIAL TIMES and "The Costs of International Human Rights Litigation," Curtis Bradley in the CHICAGO LAW JOURNAL.

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