Bork on the Alien Torts Claims Act
Courtesy of How Appealing, Robert Bork has an op/ed on the Alien Torts Claims Act in the Wall Street Journal. Here is a taste:
- U.S. courts are deciding cases by citizens of Paraguay against another citizen of Paraguay for acts in Paraguay; by citizens of Bosnia-Herzegovina against the leader of the Bosnian Serbs; and claims against the estate of a former Philippine president, although all plaintiffs and defendants were Philippine nationals and the alleged violations occurred entirely in the Philippines. Major American corporations, such as Texaco and Unocal, are being sued when they do business abroad, for the human-rights violations of host governments. The Ninth Circuit, sitting en banc, has just upheld suits filed here against foreign nationals who assisted our government in the seizure of criminals abroad. We may expect soon suits against our allies for capturing and extraditing alleged terrorists.
How did we get to this state of affairs? Many American courts claim authority from the little-known Alien Tort Act (ATA): “The district courts shall have original jurisdiction of any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States.” Early in my time on the federal appellate bench, I sat on a three-judge panel that heard Tel-Oren v. Libyan Arab Republic (1984), involving Israelis’ claims against the P.L.O., Libya and others for a murderous attack launched in Israel. It seemed preposterous that we should decide the legality of an assault by foreigners against foreigners on foreign soil. My first thought was that the statute must be a modern excrescence. To my chagrin, it turned out to have been part of the first Judiciary Act of 1789.