Sosa v. Alvarez-Machain - Oral Argument

Argument of Paul D. Clement

Chief Justice Rehnquist: We'll hear argument next in No. 03-339, Jose Francisco Sosa v. Humberto Alvarez-Machain, and the United States v. the same.

Mr. Clement.

Mr. Clement: Mr. Chief Justice, and may it please the Court:

The Ninth Circuit found that the arrest at issue here was one unauthorized, false, and in violation of international law because it occurred in Mexico.

Nonetheless, the court found inapplicable the exception in the Federal Tort Claims Act for claims arising in a foreign country.

At the same time, the court read the bare jurisdictional terms of section 1350 in title 28 to provide courts with the authority to infer causes of action from sources of customary international law, including treaties that the political branches have expressly refused to ratify.

The resulting decision, which reads express grants of executive authority narrowly and implied grants of judicial authority broadly, turns the established separation of powers regime for dealing with international issues on its head.

The Ninth Circuit first construed executive authority narrowly by holding that the DEA agents lacked the authority to effect an arrest in Mexico or abroad.

That decision... that holding has several problems, not the least of which is that by its terms it would preclude Federal agents from making an arrest abroad even in circumstances where the foreign country consents or there is no foreign government that is functioning to provide consent.

Justice Scalia: Mr. Clement, you... you have a number of strings to your bow.

Is... is one of them more important than the others?

Mr. Clement: Well, regrettably...

Justice Scalia: I mean, it... it's unlikely that we're going to go through the whole list of your... your reasons for reversing here and say you're right on every one.

If we... if we pick one, is there one that is... that is more important to the Government than the others?

Mr. Clement: Well, regrettably, Justice Scalia, this is the rare case where I think they really are of quite significance because what the Ninth Circuit has held is, on the one hand, Federal agents, including the FBI, would lack the authority to make arrests abroad.

They've also ruled in a way that I think really reads the foreign country exemption out of the Federal Tort Claims Act and then, of course, on the 1350 issue, that is an issue of tremendous importance to the Government and also to the broader community.

So I guess if...

Justice Ginsburg: That's not your... you're just arguing the Federal Tort Claims Act first.

Is that... in... in this argument that we're hearing now, we're dealing with the Federal Tort Claims Act and not 1350?

Mr. Clement: I actually intend to cover them both in... in my initial period.

Now, Mr. Phillips is going to be covering just 1350 because that's the only issue that affects his client.

But the United States is both the petitioner in the case that raises the Federal Tort Claims Act issue, but also a respondent in support of petitioner with respect to 1350.

So it's an ambitious goal in... in 25 minutes, but I hope to address them both.

Justice Kennedy: Well, getting back to Justice Scalia's question, I... I suppose the President or the Attorney General could make an order with respect to extraterritorial arrests, and that would eliminate one rationale of the court of appeals.

Or am I wrong about that?

Mr. Clement: Well, I think you are wrong about that, Justice Kennedy, because as I read the ruling of the Ninth Circuit, they say that the President, the executive, the Attorney General lack the authority to make an extraterritorial arrest, and they specifically...

Justice Kennedy: I guess you would have to get to that issue first.

Mr. Clement: That's right.

Now, I think...

Justice Kennedy: And they said even if it had the authority, it... it has to be from a high official.

Mr. Clement: That actually wasn't the... the reasoning of the majority opinion.

There's a concurrence by, I think, five of the six justices in the majority that said at a minimum you'd need a high-ranking official, but the majority opinion that's the law of the Ninth Circuit is that regardless of who approves the operation, the President categorically lacks that authority.

And that's, of course, the...

Justice Scalia: Were... were the majority...

Justice Stevens: Mr. Clement, may I ask you?

Is... am I correct in thinking if we agree with you on... on that issue, that disposes of the entire case?

Mr. Clement: I... I think that's correct, Justice Stevens.

Now, I would say that it... the other issues in the case are logically in some respects anterior to that question, especially because the... for example, the section 1350 really is a question about the... the very jurisdiction of the courts.

Justice O'Connor: Yes, but you certainly don't have to address that if you think they're wrong as a statutory matter, that there... there, in fact, was no arbitrary arrest here.

Mr. Clement: That's exactly right, Justice O'Connor.

There's no way I can tell you that you have to address those other issues.

Justice Breyer: No, no.

Mr. Clement: I think, though, there's nothing that would stop the Court from addressing those issues, and those...

Justice O'Connor: Well, we'd have to be pretty ambitious because some of them weren't addressed below and they're contrary... the position being taken today is contrary to the position taken by previous Solicitors General.

I mean, it's kind of a new question.

I'm not sure it was even raised and argued below.

Mr. Clement: Well, we think it was raised and argued below, Justice O'Connor, and I think the 1350 issue is of tremendous continuing importance.

I mean, if I could... if I could address the point that you raised about the change in position.

It is true that the United States in the Filartiga case took a different position.

Now, subsequent that... to that, the administration has... different administrations have taken the position that 1350 is just jurisdictional.

And if I could draw an analogy to the experience that this Court has had, in 1947 this Court upheld the constitutionality of State statutes that provided reciprocity in inheritance laws with foreign countries and said that was okay.

21 years later, with the... sort of benefit of hindsight and the experience with State court judges causing foreign policy problems, this Court in the Journing case revisited that decision.

And in a similar way, I think the 20-years-plus experience that we've had with the Filartiga regime has made it quite clear that these lawsuits provide tremendous problems for the foreign policy interests of the United States.

And at the same time, in the intervening... intervening period, if anything, this Court has made it quite clear what the proper mode of finding a cause of action is and the proper way to read a jurisdictional provision.

Justice Ginsburg: As to your first, the tremendous problems, how many lawsuits are there of this 1350 nature and how many have even gone to judgment?

Mr. Clement: Justice Ginsburg, regrettably, I don't have the numbers on those.

But I think one thing that's important to emphasize is that the case doesn't have to go to judgment to create potential foreign policy problems for the United States.

And to give you just one example, there's litigation that's ongoing... it hasn't gone to judgment.

It's quite preliminary... in New York right now, where people are seeking compensation for abuses that occurred during the apartheid regime in South Africa.

Now, the Government of South Africa itself, of course, has a very different mechanism for dealing with those issues, the truth and reconciliation process.

And the Government of South Africa has formally protested at the highest levels that these issues that are very difficult issues for that government and that government is dealing with are the subject of litigation in the United States courts.

And I think what you see is time and time again you have private litigants that may be very well intentioned but are focused on only a single issue and they are bringing that issue into the courts, creating foreign policy problems for the executive branch which the executive branch then has to try to remedy and ameliorate.

At the same time, in the process of those lawsuits, you have courts making pronouncements on principles of international law and customary international law that may well be at variance with the views of the executive branch or...

Justice O'Connor: Has Congress been asked to take a look at the statute and to amend it or... or restrict it in some fashion, 1350?

Mr. Clement: I'm sure there have certainly been...

Justice O'Connor: Are there bills introduced to do that?

Mr. Clement: I don't know that any bills are pending, but I do think that Congress is certainly fully able to deal with this situation.

Justice O'Connor: Well, I think so.

Unidentified Justice: [Laughter]

Mr. Clement: Definitely, and... and... but I think when Congress does deal with this situation and actually provides for a cause of action, that provides a much better solution to this problem.

And I think if I could point to the Torture Victim Protection Act as an example of what happened...

Justice O'Connor: That's all... that's a good example of where Congress took action.

I... I just wonder if it isn't wise to look at the underlying statutory grounds relied upon by the Ninth Circuit and deal with it that way and let Congress have a look at this thing.

And I'm sure Congress would be interested in the views of the Attorney General and others who think it's a concern.

Mr. Clement: Again, Justice O'Connor, I mean, I can only repeat that there's nothing that would stop this Court from resting its decision only on the extraterritorial authority question and that would certainly be a significant correction of the law because the Ninth Circuit has left us...

Justice Stevens: But, Mr. Clement, on that... on that point, your point that there must be another Federal statute enacted creating a cause of action, because this is purely jurisdictional, I have yet to find any judge who's taken that position.

Even Judge Bork doesn't take that position.

Mr. Clement: Well, I think that... that... I don't know that Judge Randolph in his separate opinion in the Al Odah case expressly... if you can tell exactly where he would come down on that.

I... I actually read his opinion as consistent with the position we're urging, but I of course may have an interest in doing so.

I would say this, though, that I think that if you read this Court's precedents for dealing with a cause of action... in finding a cause of action, there's no question that the 1350 is applied pursuant to those modern principles...

Justice Stevens: Well, I understand all the cases since Cort against Ash support you, but we're construing a statute enacted a long, long time ago, and there was all sorts of... of opinion to the effect that there were at least two or three causes of action that did not need to be severally created: privacy, protecting ambassadors, and so forth

You remember the three examples even Judge Bork recognized.

If that's right, then your fundamental position is... is totally unsupported by judicial opinion.

Mr. Clement: Well, with respect, Justice Stevens, let me take that in a couple of steps.

First of all, I mean, certainly Judge Bork thought that maybe those original causes of action would be actionable in Federal court at the time.

Now, first of all, to make clear, what the first Congress did is rather than pass any kind of tort action, it dealt with those three very offenses against the law of nations and dealt with them criminally.

Now, it may be that what Judge Bork had in mind is that at the time of the framing, as a matter of general common law in the pre-Erie sense, it might have been possible to get into Federal court and raise those three violations against the law of nations as a tort action.

I don't think, however, that authority would survive Erie in any event, and I think it raises some questions of its own.

Now, I think you're absolutely right, though, Justice Stevens, to say that the one objection you would have to applying straightforwardly the principles that this Court has adopted in cases like Cort against Ash and Sandoval is that this statute was passed at a much earlier time and where the... the enacting Congress may have had different assumptions in mind.

But this Court has made clear that it's not going to sort of tether its analysis to what assumptions the enacting Congress might have had in mind.

It did so, of course, in the Sandoval decision.

But you did so yourself, Justice Stevens, in your separate opinion in California against Sierra Club where you said that it may very well have been that the Congress in 1890 that passed the Rivers and Harbor Act probably assumed there would be a cause of action in court, but you said it was more important to apply the principles of Cort against Ash in that case than to try to divine the intent of an enacting Congress from 100 years earlier.

Justice Ginsburg: Well, what about the cues that you get from the Torture Victim Protection Act?

When Congress had 1350 right next to it and there's not a word in... in that legislative history, it... it seems to be a model.

Yes, this is a good thing, but it's... it's... we want to make it really clear that torture is a crime against humanity and we want to include U.S. citizens as plaintiffs as well.

But they didn't say anything questioning 1350.

Mr. Clement: Well, Justice Ginsburg, if I could just make sure that there's one fact that's on the table, which is you said that they... that Congress effectively had the provisions side by side, and I think it is worth noting that although the Torture Victim Protection Act is now codified as a note to 1350, that was not a decision Congress made.

That was just a codification decision.

So Congress itself didn't say insert in the code after 1350...

Justice Ginsburg: But there was discussion of 1350 by the proponents of the Torture Victim Protection Act.

Mr. Clement: There certainly was and I think that... that basically the enactment of Congress is... sort of says nothing about 1350 one way or another.

What I would point to the Torture Victim Protection Act, though, is a model of why it makes sense to ask Congress to get involved in creating a cause of action because when it does, it provides clear direction to the court and also acts in a way that minimizes tensions with allies because you're absolutely right to suggest that torture is one of the most well-established norms of international law.

Yet, notwithstanding that, when Congress addressed the issue in the TVPA, it provided specific definitions of the prohibited conduct.

Then it also provided clear guidance to the lower courts by providing for a specific statute of limitations of 10 years.

And then, as I also indicated, it... it put in a specific statutory exhaustion provision which suggested that litigants shouldn't rush to United States courts if the courts in the area where the events actually took place are open for the claims.

I think that last provision is particularly telling because it shows that when you take the normal course and insist that Congress get involved in the process of creating causes of action, Congress as a political branch with foreign affairs responsibilities of its own...

Justice Stevens: But, Mr. Clement, if I... if I remember, some of the briefs have taken the position that that's already an aspect of international law, a requirement that you should first exhaust in the country where the conduct took place, which would... would narrow the scope of the statute if we... if we adopted that view.

Mr. Clement: Well, Justice Stevens, there certainly are international jurists that will argue that exhaustion principles are a principle of international law.

But I think that's exactly what ends up happening if you leave these issues to the courts and don't insist on a cause of action is you leave the courts as a matter of Federal common law, I guess, trying to interpret international law sources to come up with things like exhaustion.

A statute of limitations I would think would be even more difficult.

Principles of damages.

And they're supposed to do all of that as a matter of Federal common lawmaking with the only guide they have in the text is the 33 words in 28 U.S.C. 1350 which, by their terms, really only address jurisdiction.

So I think that would put the courts in a very difficult position, and I think in contrast, the Torture Victim Protection Act shows the virtues of waiting for Congress to take some action before somebody would get involved in this kind of situation.

Justice Souter: But in the... in the...

Justice Kennedy: on 1350 address the question of the authority of the DEA agents to make the address, and if you have time, the Federal Tort Claims provision that it's governed by events that occur abroad as opposed to the headquarters doctrine.

Mr. Clement: Yes, Justice Kennedy, and thank you.

Let me start with the... the arrest authority question because, as I said at the outset, the view of the Ninth Circuit is that there is categorically no arrest authority abroad, even if a foreign nation consents.

And that really cannot be correct.

And I think respondent recognizes that implicitly by not defending that aspect of the Ninth Circuit ruling, but rather insisting on a rule that would give arrest authority only with consent.

And with respect, though, I think that is not a workable rule for the Federal courts, and if I could use, by way of example, the arrest of the individual who's the convicted killer in the CIA shooting, Mir Aimal Kasi.

This is an individual who was arrested by FBI agents in Pakistan in 1997.

Under the Ninth Circuit's approach, obviously, this individual could not be arrested by FBI agents as a categorical matter.

But under the approach of respondent, the Federal courts would have to inquire into the circumstances surrounding the arrest and to inquire specifically into whether the Government of Pakistan consented to the arrest by FBI agents in Pakistan in 1997.

Now, I think the prospects for interfering with sensitive diplomatic relations, not to mention the difficulty of divining any principles for discerning the requisite degree of consent, are manifest in both those cases, and I would suggest that the far better approach is to read section 878 of title 21, consistent with its plain terms, to give the DEA the arrest authority for any felony cognizable under the laws of the United States without reading in either a territorial limitation or a limitation based on consent.

Justice Ginsburg: Doesn't the Mansfield Amendment tug the other way?

That was... when Congress looked at this, they restricted DEA agents' authority, not granted it.

Mr. Clement: With respect, Justice Ginsburg, I actually think the Mansfield Amendment supports the view of the United States here, and indeed, under the view of the Ninth Circuit, it's entirely unclear what the Mansfield Amendment was supposed to accomplish.

It was under their view limiting an authority that did not exist because what the Mansfield Amendment does is put specific limitations on the authority of Federal agents.

It applies only to direct arrests, only to foreign police actions, and only in the context of narcotics control efforts.

And then even there it provides specific exceptions for exigencies and the like.

And so I think what that reflects is that there may be circumstances where an extraterritorial arrest authority raises concerns and Congress may react to those, as it did in the Mansfield Amendment, but the very fact that there is this specific and tailored limitation on DEA authority suggests that there must be some broader grant of authority that includes extraterritorial arrests.

Justice Souter: But isn't... isn't it possible to read... and I'm not sure it should be read this way, but isn't it possible to read the Mansfield Amendment as simply saying DEA agents should not go out in foreign police raids when the police of the foreign countries make the raids.

Stay out of it.

That's one way to read the... the foreign police action qualification.

Mr. Clement: That's certainly... that is one way you could read it, Justice Souter.

And I think there's two implications from that.

One is, of course, if that's the way you read it, the Mansfield Amendment certainly doesn't bar the action here.

Justice Souter: It doesn't... but it doesn't imply anything one way or the other.

Mr. Clement: Right.

But here's why I think it still implies something about the scope of section 878 because section 878 of title 21 is not just the authority for the DEA to make arrests, it's basically the source of all their statutory authority for law enforcement efforts.

And I think that even participation in the midst of a foreign police action, as you were envisioning the reference in the Mansfield Amendment, is at least a law enforcement involvement of the DEA.

And so I think that unless 878 authorizes extraterritorial actions by DEA agents, be it arrests, be it simply carrying a firearm, or be it engaging in other investigatory activities, then so too I think the language of the Mansfield Amendment, even if it limits the very specific kind of law enforcement activity by the DEA, still suggests that 878 by its terms is not strictly limited to the territory of the United States.

Justice Souter: Of course, you get there by assuming that anything that the DEA does is law enforcement.

Mr. Clement: That's a fair point, but I think even if that's a bit of a broad conception, I certainly think assisting in the context of a foreign police action should qualify as law enforcement.

If I could say just a... a few things about the foreign country exemption before I sit down.

I think that there is a very clear error in the analysis of the Ninth Circuit because this is really a... a rare case where you have an arrest that is false and tortious only because it occurred in Mexico.

You have the lower courts recognizing that the plaintiff is entitled to damages only for the period he was in Mexico, and every element of the tort took place in Mexico.

Yet, nonetheless, somehow the court applies this headquarters doctrine to say that the foreign country exception applies.

And I think what that illustrates is that although the headquarters exception may have been a helpful gloss on the language of the statute when it was first developed, as it's been interpreted by the Ninth Circuit, it becomes a free-floating exception to the... to the foreign country exception that allows a plaintiff to skirt the language of the statute simply by alleging any degree of U.S. involvement or direction.

If I could reserve the remainder of my time for rebuttal.

Thank you.

Argument of Carter G. Phillips

Chief Justice Rehnquist: Very well, Mr. Clement.

Mr. Phillips, we'll hear from you.

Mr. Phillips: Mr. Chief Justice, and may it please the Court:

I guess I'd like to begin, Justice O'Connor, with your question about whether or not this is an issue that the Court ought to... the... the underlying question of the meaning of the section 1350 is an issue the Court ought to resolve as opposed to the narrower...

Justice O'Connor: Or whether we have to.

Mr. Phillips: Well, you clearly don't have to, and... and certainly Jose Francisco Sosa would be perfectly content to have the judgment of the court of appeals reversed on the ground that the arrest here was neither arbitrary nor the detention prolonged in a way that would no... under no circumstances violate the law of nations.

But the truth is, as one of the amicus briefs for the respondents points out, there are at least 35 cases that they cite in their briefs that have been filed under section 1350.

Those causes of action involve, each one, numerous individual defendants.

There is a significant reason I think for this Court to try to provide some additional guidance to the lower courts with respect to the meaning of section 1350, particularly when the rules of construction, as Justice Stevens quite rightly pointed out, so clearly point in a particular direction.

This is a purely jurisdictional statute.

It says it in so many terms.

The only language that the respondent embraces as suggesting that it's not purely jurisdictional is the word violation, a word this Court specifically recognized in Touche Ross is not a rights-creating term, but instead again merely provides jurisdiction.

This Court has repeatedly held that when you have merely jurisdiction, you do not imply a cause of action.

That's the... the Montana-Dakota Utilities decision of the Court.

Obviously that's embedded in Sandoval.

Justice O'Connor: Well, there are indications early in the country's history that it was viewed differently at the time of its adoption, and the... an Attorney General early on took that view.

It... it's not easily answered.

I... I can understand how with the recodification where it then is put in with other jurisdictional sections that it... it looks somewhat different, but it's had a pretty long history.

Mr. Phillips: But... but, Justice O'Connor...

Justice O'Connor: And it's hard to ignore all that.

And it's so easily changed by Congress if indeed it is a problem.

Mr. Phillips: Well, I think the presumption ought to go the other way is that to the extent that the lower courts have created a problem, it would be incumbent upon the Court to try to fix that problem if that's an available option...

Justice Scalia: You agree it's easily changed by Congress?

Mr. Phillips: I'm sorry?

Justice Scalia: You agree it's easily changed by...

Mr. Phillips: Well, I don't think anything is easily changed by Congress these days.

[Laughter]

But... but, Justice O'Connor, your... your point brings to mind, frankly, Justice Frankfurter's observations in the Romero case about comparing the historical efforts here to archaeology and the... and as one who has now spent the better part of the last 6 months on what struck me as a historical dig that accumulated a whole lot of information, virtually none of which remotely provides me with any insights at to what the Congress of 1789 really had in mind at the end of the day, I think the Court would do extremely well here to go back to the first principles of statutory interpretation.

I'm sorry, Justice O'Connor.

Justice O'Connor: It probably had in mind problems of piracy.

Mr. Phillips: Well, it clearly had in mind problems of piracy, but as even Blackstone made clear, problems of piracy are matters of public concern.

They are not matters of private concern.

And while it may well be that Congress did have in mind down the road that there may be subsequent enactments that would, in fact, invoke section 1350 as an exercise of jurisdiction...

Justice O'Connor: And then we have the case of the attack on the early diplomat and so on.

I mean, it... it's had a long history.

Mr. Phillips: Well, first of all, there's an interesting gap in that history because you go up till about 1807 and then nothing happens until 1982.

So it's a little difficult to think that there are a whole lot of historians out there thinking that there was a clear basis for a cause of action tapping in to the law of nations and to those kinds of rights.

Justice Stevens: Maybe we didn't assault any ambassadors during that later period.

Unidentified Justice: [Laughter]

Mr. Phillips: I certainly hope we didn't.

Justice Kennedy: But, of course, I... most references to international law were in admiralty cases where there's jurisdiction anyway.

Mr. Phillips: To be sure, absolutely.

And that... that's why...

Justice Stevens: Yes, but not in the ambassador cases.

Mr. Phillips: No.

Justice Stevens: It was pretty clearly, it seems to me, one of the things that the statute would have covered for the assault of the French ambassador.

Mr. Phillips: It's not... well, it's not 100 percent clear to me because the... the problem you have there is that it would clearly have been a public right and it was... and, you know, the Congress in 1790 immediately passes a statute that... that imposes criminal sanction for this.

And indeed, Justice O'Connor, even in the... even in the Pennsylvania case where it arose out of common law, it was a... it was criminal action that was brought against the attacker on the... on the ambassador.

It was not a civil action.

No one sought damages.

Justice O'Connor: But, Mr. Phillips...

Mr. Phillips: This is a very unknown enterprise.

Justice Stevens: One of the... one of the things that I keep bumping up against... and I want to be sure you get an opportunity to comment on it... that... 1980, I guess it was, the Second Circuit got into the act and decided that case.

So we've had 25 years, and we had a bunch of opinions.

And I don't think a single Federal judge has taken the position that you're advocating.

Mr. Phillips: Well, I don't... I don't... I don't disagree with it.

I think that's absolutely true.

On the other hand, I don't think a whole lot of those judges gave quite as much thought or attention to this issue as the litigants before this Court have in this particular case.

And the briefing here is obviously extraordinary both in its breadth and depth.

And at the end of the day... and... and I don't think anybody tried to mine the historical materials in quite the same intensity as we have coming here.

And as I said...

Justice Breyer: I thought... I thought you'd probably have a... a right to recover damages for piracy, wouldn't you have?

I mean, wouldn't they have thought in 1789 you did?

Mr. Phillips: Well, it's not clear, but if you would have, it would have been under admiralty jurisdiction.

Justice Breyer: Well, admiralty and maritime law then I thought were viewed as a brooding omnipresence.

Mr. Phillips: They were.

They were.

Justice Breyer: They weren't the law of Athens.

They weren't the law of Constantinople.

They weren't the law of Rome.

They were the law of nations.

Mr. Phillips: Well...

Justice Breyer: And that... that... you can find lots of quotations along those lines.

So if in fact that was so then and you're looking for a modern counterpart, what's wrong with what the European Commission said?

I'd be interested in having your views on that brief.

Mr. Phillips: Well, let... let me answer the first question because the difference between incorporating the law of nations from the... into admiralty jurisdiction, it had a tradition of 1,000 years.

The idea of interpreting the law of nations or incorporating the law of nations into section 1350 or its precursor back then where it only benefits aliens seems to me a quite improbable undertaking by Congress in 1789.

Justice Breyer: It would not be improbable in a world where law was a brooding omnipresence in the sky to think that we preserve it in the case of admiralty, maritime, and certain instances of international law.

But Erie sends it to the states once they decide to make that separation.

That's an ex post event.

That doesn't cast an idea in the minds of Congress.

So if you have Congress ex ante thinking, of course, this is international, as they thought maritime law was, then our task is to try to translate that into modern terms.

And that brings me back to the European Commission.

Mr. Phillips: But I... I... the difficulty I have with that, Justice Breyer, is I think this Court has rebelled from the idea that it's going to incorporate a massive brooding omnipresence...

Justice Breyer: Not massive.

Very limited.

Mr. Phillips: But, see, I don't think...

Justice Breyer: That's why I keep bringing up the European Commission.

Mr. Phillips: But, see, that's my problem with that... with that argument because it doesn't... I don't see what the limitation is, Justice Breyer.

What we're dealing with is if you're saying the law of nations, customary international law, whatever that means... and we know from the Ninth Circuit it doesn't have to be anything that the United States itself embraces.

These are rules that are imposed upon us under these... under these circumstances.

It would seem to me that if you're going to bring it into the modern era, you ought to bring it in with the recognition that there are core separation of powers concerns in this context that ought to... ought to caution hesitation in exactly the same way...

Justice Breyer: All right.

Justice Scalia: I agree with you about that.

Mr. Phillips: that the federalism principle was...

Justice Breyer: So what... what is... what I got out of that brief... and I refer to one, and I want to get your views on that... is it wouldn't be difficult to have a limited cause of action, try to find the counterpart, and say, of course, if Congress preempts the field, as maybe it did with torture, that's out.

Or if Congress implicitly is hostile to the cause of action, that's out.

And if Congress is neutral and the State Department comes in and runs through any one of a set number of defenses, including political question, that's out.

And there we have... what's left is a core of basic human rights violations that's been internationalized, that's consistent with international law as applied in a lot of places and avoids the political problem.

That's what I'm looking to shape, and I want your view on that because we have a brief that tries to do it.

Mr. Phillips: But that brief assumes that 1350 does more than provide jurisdiction.

Chief Justice Rehnquist: Yes, that's correct.

Mr. Phillips: It assumes that there is a cause of action.

Justice Stevens: That's correct.

Justice Breyer: That's why... that's why if I don't accept your first argument, can we achieve your practical objectives by following that approach?

Mr. Phillips: Well, to be sure.

There... I mean, that would take you back to, I think, Justice O'Connor's question which is, could you resolve this particular case by reference to an understanding of the law of nations that... that rejects any notion that this was an arbitrary act or that the detention here was prolonged within the meaning of the Restatement, Third, of Foreign Relations?

And... and to be sure, that's a narrower basis for deciding and that is the focus of the commission's brief.

Justice Scalia: It may also...

Mr. Phillips: We don't have any quarrel with that on...

Justice O'Connor: It may also be correct.

Mr. Phillips: Well, to be sure, it's correct.

Justice O'Connor: I mean, you're not... you're not saying that's a wrong interpretation, are you?

Mr. Phillips: No, no.

Absolutely not.

And if you're in that world and you're looking at those... at those circumstances, you obviously would have to take a very narrow approach in... in terms of trying to...

Justice O'Connor: And presumably if there is some cause of action alleged in any of these actions that have been or might be filed, that deal with something that is covered basically by a treaty that Congress has said is non-self-executing, I assume that would displace any common law background.

Mr. Phillips: Well, I think that you raise an important point there which is the parallelism between the treaty prong and the law of nations prong of the statute because if, as... as Judge Bork explained in his separate opinion, the thing that disturbed him the most about this was the suggestion that somehow on behalf of aliens, you would create a right under the treaty that you would... that... that citizens would never have had the right to because it wouldn't be self-executing.

It seemed quite improbable that Congress would have intended that.

So by parity of reasoning, why would Congress have wanted to create this kind of access into a brooding omnipresence of law that is essentially very difficult to confine?

And I... and I go back to Justice Breyer's point which is, to be sure, there are ways to try to narrow those rules.

My position is you do better not to try to go down that path in the first place.

You would do better to recognize that this is a purely jurisdictional statute and thereby force Congress to look in the future at statutes like the Torture Victim Protection Act.

Justice Souter: Okay.

Mr. Phillips, let's... let's assume I accept your argument that there are good reasons not to invite the... the... today's brooding omnipresence into court without something more from Congress, that there are good reasons to be concerned about separation of powers problems.

Assume also that I am convinced or the Court is convinced that at the time the statute was passed, there was an understanding that there were certain offenses to which the jurisdictional provision would... would provide access for litigation, piracy offenses and things like that.

How do I distinguish today's situation from yesterday's situation and hold your way without being inconsistent with what I take it the understanding was at the time in incorporating some offenses in a common law kind of way?

Mr. Phillips: Well, I think the easiest way to ensure consistency there would be to insist that there be a... a real clarity, both that the United States is...

Justice Souter: No, but that... that then just takes you to Justice Breyer.

Justice Stevens: He says...

Mr. Phillips: Well, no.

Then that's my answer to your question.

Justice Stevens: Okay.

Mr. Phillips: Because I think in that world...

Justice Souter: You're saying the only way to get where I have suggested we might go is Justice Breyer's way?

Mr. Phillips: No.

I... I don't know that it's the only way, but it is the simplest way to get to that kind of consistency if you accept the premise that Congress necessarily believed in 1789 that there would be a cause of action created from language discussing merely jurisdiction.

Justice Souter: Let me... well, I'm not... no.

I'm not suggesting that it... that the cause of action was created from the language discussing jurisdiction.

I am assuming that the cause of action was assumed to be out there and that the jurisdictional provision opened the door to the courthouse to get the cause of action in.

Mr. Phillips: Can... can I challenge that assumption...

Chief Justice Rehnquist: Yes, yes.

Mr. Phillips: Justice Souter?

Because if you look at the historical record and go back to the 1781 Continental Congress saying to the States, there is no brooding omnipresence, we need you, States, to go out, take action to deal with ambassadors to protect them...

Justice Souter: Is it clear that there was nothing in the absence of... of action by the States?

Or is it clear that there were only a... let's say, a few and rather limited causes of action, those largely arising... well, we have the ambassador case.

We... we have offenses at sea.

Mr. Phillips: But... but... the... the... I... I think there are no causes of action because the... if you take seriously... why... why would the Continental Congress say to the States, enact a statute to protect ambassadors if ambassadors are otherwise being protected?

Why does Connecticut then go forward and enact a law that not only provides criminal protection for the ambassadors but goes... goes beyond that and provides civil remedies, liability and damages for attacks on ambassadors, if there is this brooding omnipresence?

The point is... my... my basic point is I don't think the historical record will demonstrate to you at all that these causes of action existed.

And therefore, this is not a simple instance of the courts... of the Congress trying to tap in to a body of law.

What it was doing was creating a jurisdictional basis to be filled in in the future.

In that sense, I don't think the Congress of 1789 came to the table to deal with this issue dramatically differently than the Congress today would... would deal with it.

They enact jurisdictional provisions all the time.

To be sure, 1331 has eliminated the need for a lot of this.

But the reality is you... you create the jurisdiction and then you fill the vessel.

And this Court has got a... you know, an obviously long line of... of opinions in which it's recognized jurisdiction doesn't create Federal common law rules, jurisdiction doesn't create a right of action.

It simply creates jurisdiction.

And if this Court goes back to that core principle as the method for trying to interpret section 1350, it will avoid all of the problems and then force Congress to take the action that I think is important here.

The... the Torture Victim Protection Act has a statute of limitations, has an exhaustion requirement, has a definition of torture.

Congress wasn't implementing section 1350 there.

It was implementing its obligations under international agreements dealing with the question of torture.

My guess is we have similar kinds of provisions that are out there that we probably ought to be trying to find causes of action for, and Congress should take those up.

But what shouldn't happen is to allow the courts exercising what I submit is an extraordinary Federal common law power to go out, find causes of action, and then proceed to define all of their elements, all of their defenses without the benefit of any guidance, which is precisely how you end up in a situation today where the Ninth Circuit has said that in a situation where a Mexican national assists the United States to... to enforce an arrest warrant, and the circumstances presented in this case that he's not only engaged in an arbitrary act, but that the detention is... is wrongful in its own right, not... even though there's not a shred of evidence that the United States would have embraced that view with respect to its own obligations as a matter of international law.

Once you open this door...

Justice O'Connor: Well, we can deal with that issue.

Mr. Phillips: And you should deal with that issue, but... but, Justice O'Connor, I think you should try to deal with the broader issue because there are just too many of these cases out there creating too much havoc for no good reason, if I'm right, that the Congress in 1789 did not have in mind something anywhere... anything like what we've seen since 1982.

And if it's just as easy for this Court then to go back to first principles of statutory interpretation based on the language of the statute and say enough is enough.

If there are no...

Justice Kennedy: They did use the word tort, which is... was... was surprising to me that they used it at that early date.

That's... that's one of my problems I have with your position.

Mr. Phillips: They did use the word tort.

It's unfortunately, obviously having spent, as I said, a long time in my historical dig, I haven't been able to figure out why they pulled out the word tort under those circumstances.

It doesn't really have an analog.

It would have been more sensible if they had... had used... I mean, they didn't actually need the term limit.

I... I'm sure it's a term of limitation.

I think what they were concerned about were... were debts.

I think that's what they were worried about.

They didn't want aliens to be coming in and trying to... trying to deal with debts.

They were... they were trying to stay away from that.

They were worried, obviously, at the end of the day with injuries.

But... but I agree with you, Justice Kennedy, it's an odd choice of words, given how little law was developed on torts generally and how no law was developed under the law of nations involving torts specifically.

I've already taken up enough of your time.

Argument of Paul L. Hoffman

Chief Justice Rehnquist: Thank you, Mr. Phillips.

Mr. Hoffman, we'll hear from you.

Mr. Hoffman: Mr. Chief Justice, and may it please the Court:

Let me start with the meaning of the alien tort statute.

It's our position, as you know from the briefs, that... that Congress meant what it said, that Congress actually decided in 1789 to pass a statute that allowed aliens that had tort claims that... involving the violation of the law of nations to bring them in Federal court, and that by using the word tort, what the... the Founding Fathers were referring to was a body of common law that was well known to be part of the law in the United States during the colonial days and at that time.

Justice Stevens: May I ask...

Justice Scalia: How do you... go ahead.

Mr. Hoffman: I'm sorry.

I said the...

Justice Stevens: May I ask... may I ask this question as a matter of history because your right on the point now?

Is there anything in the early history that gives even the slightest suggestion that Congress wanted to legislate with respect to anything that did not happen in the United States or on the high seas?

Mr. Hoffman: Well, I think that the... the kinds of law of... law of nations violations at the time would have included piracy, which clearly... in terms of another country, I mean, it's certainly possible that a... an assault on an ambassador could have taken place in another country.

Justice Stevens: Yes, but the only ones they knew about had taken place in the United States.

Mr. Hoffman: Well, the ones that they were most concerned about was the 1784 Marbois incident and the one in 1788, the Dutch ambassador in New York City, were the ones most on their mind.

Justice Stevens: They certainly would not have been concerned about an assault on the... say, the English ambassador in Paris by a Frenchman.

Mr. Hoffman: Well, that's not entirely clear, I mean, because if there was a... one of the things that was before them was the transitory tort doctrine.

And the transitory tort doctrine, which this Court has recognized dates back at least as... as far as Mostyn v. Fabrigas, which is a 1774 Lord Mansfield opinion, which involves ironically a false imprisonment claim against a government official which took place outside the territory of England and which was found to be cognizable in common law tort within the... the courts of England.

And so the...

Justice Scalia: Well, you wouldn't need the... the law of nations for a transitory tort.

I mean, if it's a...

Mr. Hoffman: Excuse me?

Justice Scalia: You... you don't need the law of nations to sue on a transitory tort.

Mr. Hoffman: No, of course, not.

Justice Scalia: If it was a tort in the country where it was committed, you... you could sue on it elsewhere.

Mr. Hoffman: No.

And in fact, I think that one of the main purposes of the alien tort statute was to provide a Federal forum for those claims when they came within the United States.

Justice Scalia: If... if there was this background of... of understood common law that you say, how do you explain the 1781 action of the Continental Congress which is concerned about the fact that... that there's no redress for... for assault on ambassadors, among other things?

Mr. Hoffman: Well...

Justice Scalia: And they asked the States, do something about it.

Mr. Hoffman: Well, certainly the...

Justice Scalia: If that... that was part of the understood common law, what is the problem?

Mr. Hoffman: Well, one of the... one of the... first of all, Longchamps is one response to that in the sense that in Pennsylvania they didn't need a statute.

They didn't pass a statute and... and the... the courts in Pennsylvania understood that the law of nations was part of their common law.

Justice Souter: Yes, but that goes against the notion that there was an understood common understanding that was the background.

It was understood one way in Pennsylvania.

It was understood another way by... by the Continental Congress.

Mr. Hoffman: No.

I think what... what... the way we would interpret the 1781 resolution is that the 1781 resolution was more a function of the Continental Congress' inability to enforce the law of nations on behalf of the Nation under the Articles of Confederation.

And so they had no way to respond to any incident, including the Marbois incident after that resolution.

Now, they did...

Justice Souter: Then why did they pass a resolution saying to the States, enforce the common law?

Mr. Hoffman: Well, what they did is they asked the... the States to enforce the law of nations.

And Connecticut passed that particular statute in order to do it.

Other States did not act in response to that, but that's not to suggest that they didn't decide that they already had adequate remedies.

Moreover, the resolution did more than just ask the States to enforce the law of nations.

It also provided a new... which was not a common law thing... an indemnity for the United States if the United States had to do something to take up the slack for the States.

And so from our standpoint, what... what the... the 1781 resolution really does is that is the... the step is from 1781, feeling completely frustrated and not able to enforce the law of nations, coming to the Constitution where there's lots of evidence that the Founding Fathers believed that we had to as a Nation enforce the law of nations, having incidents like the Marbois incident and the... the attack on the ambassador in New York right before them, deciding in the alien tort statute to make those claims available.

Now, what... what the Government and... and Petitioner Sosa want the Court to believe is that having gone through the trouble of expressing to the world, to the people, in terms of the... that... that we would as a Nation enforce the law of nations, that then the Congress just didn't do it because basically Congress didn't do anything else to enforce the torts in violation of the law of nations clause of the Judiciary Act of 1789.

Justice Scalia: Part... part of the problem I have with... with your... your proposal is that it leaves it up... it leaves it up to the courts to decide what the law of nations is.

And... and the Ninth Circuit here derived a law of nations principle from, among other things, treaties that we had refused to sign, international agreements that we had reserved against.

I... I find that a... a serious interference with the ability of... of the political branches to conduct our foreign affairs.

Mr. Hoffman: Well, there are two... I have two responses, Justice Scalia, to that question.

On the first one, in terms of whether the law of nations is too indeterminate... boundless I think is the word that's used in the petitioner's brief... this Court has affirmed at least in... on two occasions that I'm aware of, in U.S. v. Smith and in Ex parte Quirin, the fact that Congress can easily by reference incorporate the law of nations and that it is not indeterminate enough to justify a death sentence in the... against the pirate in the United States v. Smith in 1820 and 120-some-odd years later against Nazi saboteurs in Ex parte Quirin.

The Court... it is perfectly permissible for the Congress, particularly in 1789, to incorporate by reference what lawyers at that time knew to be the law of nations.

It's not... Congress doesn't have to exercise its...

Justice Scalia: Those... those are pretty polar instances, piracy and... and sabotage in... in time of war.

We're talking here about other matters that are not... not at all polar.

Mr. Hoffman: Well, in the... in the...

Justice Scalia: And I... sure, I can tell you some things that everybody would agree is against the law of nations, but there are a lot of things in between that the European Union may think is bad and we may not think is bad.

Mr. Hoffman: Well, but actually I think that that is... would not be a correct view of... either of what the courts did or what the courts ought to do.

In fact, there are a relative handful of cases under the alien tort statute in the last 25 years in which there have been findings about violations of the law of nations.

They have tended overall to involve claims of torture, genocide, war crimes, crimes against humanity, clearly norms that the United States has supported from Nuremberg on down.

Justice Breyer: But that's not your case.

Mr. Hoffman: Well, you're right, Chief Justice Rehnquist.

That is not my case.

But my argument about why this is arbitrary arrest and detention is, number one, there is a core arbitrary arrest and detention norm that an... that an arrest and detention can't happen without legal authority.

Chief Justice Rehnquist: Well, there was legal authority here.

The... the... he was indicted by a grand jury.

Mr. Hoffman: Well, he was indicted by a grand jury and there was an arrest warrant that was limited to the territorial boundaries of the United States.

Justice Stevens: Well...

Mr. Hoffman: There was no authority to arrest him in Mexico.

Justice O'Connor: yes, but I... I think there's a good argument that section 878 has extraterritorial application, that DEA agents are not prevented from carrying out their duties across our borders.

Mr. Hoffman: Well, I think that the... the distinction... and... and... that needs to be made on that is that it is clear that the Congress was aware, as we all are aware, that the Drug Enforcement Administration has involved in activities in other countries of a variety of activities.

Justice O'Connor: Well, like in that case of...

Mr. Hoffman: They're supportive.

Justice O'Connor: United States v. Bowman dealing with a ship and... and exercise of criminal law enforcement outside our borders and we thought there was in that case no presumption against extraterritoriality.

Mr. Hoffman: Well, that's...

Justice O'Connor: And I think there may well not be in this DEA context as well.

Mr. Hoffman: The... the... I hope to persuade you otherwise on that point.

But the... the distinction I would draw, first of all, is that the fact that the DEA is involved in some activities abroad doesn't mean that Congress intended that any DEA officer or employee had worldwide arrest authority at their discretion.

Justice O'Connor: No, but we certainly... in Bowman we said that the Coast Guard could enforce revenue laws...

Mr. Hoffman: Sure.

Justice O'Connor: outside our borders, and very likely a DEA agent can enforce our laws beyond our borders.

Mr. Hoffman: Bowman... Bowman was about jurisdiction to proscribe.

And I think the... the Government relies on Maul as the case for... on the jurisdiction to enforce.

And... and the Maul case is very interesting actually because what it does is it says that the Coast Guard can be engaged in activities on the high seas which are extraterritorial, but they're not within the territory of another state.

And in fact, the... the language in Maul is very clear to talk about the law of nations and the restrictions on the ability of the Coast Guard to do things.

They say they're not at issue in that case because the high seas is a place where that kind of authority can be maintained without any conflict with any other nation or without any conflict with... with the law of nations.

What they... they were also dealing with a U.S. ship and a... and a U.S. citizen, and so there was no even issue about whether they had the authority on the high seas to seize a foreign-flagged ship.

Justice Scalia: How can you read the statute to include the one and not include the other?

I mean, it... it doesn't... it doesn't slice the bologna that thin.

It just says they have authority to enforce the laws.

Now, if... if you say that they can't arrest in Mexico, I assume they can't investigate in Mexico.

I don't see how you can read the...

Mr. Hoffman: I don't think that it... I don't think that...

Justice Scalia: How can you read the statute to permit the one but not permit the other?

Mr. Hoffman: Well, I don't think that it follows that... that you have to assume that Congress intended that... that entire statute had to have complete extraterritorial effect.

Now, but there's an additional principle other than the presumption against extraterritoriality, which would slice it one way or the other perhaps, although I think what the Ninth Circuit said is that we're talking about extraterritorial arrest here and that provision and whether that's extraterritorial both in terms of the language of the statute and the background of the statute, the background of... of cooperative activities, not activities in violation of the law of nations, but...

Justice Scalia: Tell me what language could possibly allow you to draw that... that distinction in the text of the statute.

There's no language that allows you to do that...

Mr. Hoffman: Well, the...

Justice Scalia: between arrest and investigation.

Mr. Hoffman: I think that the difference would be that the Congress... one of the arguments that the Government is making, because they don't... there's nothing in the... in the statute that tells you that arrest authority is extraterritorial either.

It doesn't say anything.

It's boiler plate authorization language.

Right?

Justice O'Connor: Right.

Mr. Hoffman: And... and under the Government's theory, in fact in their reply brief, they say that the citizens arrest statute in California is the same to section 878, which means that 36 million people in... in the State of California can engage in extraterritorial arrests too.

Justice Breyer: I didn't like that...

Mr. Hoffman: And so there has... there have to be some other limitations and some other inquiries...

Justice Souter: Okay.

And you said... you said you had another limitation and a further principle.

Mr. Hoffman: Yes.

Justice Stevens: What's the second principle?

Mr. Hoffman: Let me... the... the other limitation... the other... well, there are two really.

One is the Mansfield Amendment, which we have laid out in our brief.

And basically our position is that what the Mansfield Amendment means is that the DEA was specifically...

Justice O'Connor: Well, look, there... that amendment refers to foreign police action.

There wasn't any such here.

Mr. Hoffman: But in the... on the Government's theory...

Justice O'Connor: None.

I don't see how it falls within that at all.

Mr. Hoffman: But in the Government's theory, what that would mean is that if... if the Government wanted to arrest a drug trafficker in Mexico and they... they would be barred by the Mansfield Amendment from actually being involved in that arrest, even participating in it unless the ambassador to Mexico approved it under the... the rules, but under their theory, they could actually hire the people that they hired in this case to arrest the trafficker.

Now, I don't... that's... but that's what they're saying.

And I... I...

Justice Souter: What does the term direct mean?

Mr. Hoffman: Well, I... direct... what... what happened in this case was certainly directly effecting the arrest.

What the... what the DEA officials in this case did is they directed that he be arrested.

Justice Souter: Well, in that sense every arrest is a direct arrest.

There's no such thing as an indirect arrest I suppose on that theory.

Mr. Hoffman: Well, I... I think what the... what the difference...

Justice Souter: Doesn't direct refer to the... to the actions of the agents?

Mr. Hoffman: But I think what the difference was is the Mansfield Amendment was broader than just arresting.

The Mansfield Amendment came out of a trip that Senator Mansfield took to Thailand where he was concerned about the... the fact that DEA agents were... were even in any operations with foreign law enforcement and they... he thought that that caused problems to our foreign relations and... and the exercise of law enforcement authority in other countries.

Now, that was...

Justice Scalia: If that was so, why didn't he just eliminate from this as part of any foreign police action?

Why is that phase in there?

Chief Justice Rehnquist: Yes.

Mr. Hoffman: Well, but the thing is from our standpoint, I mean, this is a foreign... this... this is a police action in a foreign country.

Chief Justice Rehnquist: Oh, no, no, no, no.

But that's not...

Justice Scalia: You... you don't think foreign police means foreign police?

Unidentified Justice: [Laughter]

Mr. Hoffman: I...

Justice Scalia: You... you think it's foreign police action.

Mr. Hoffman: I really think that... that the... the intent of the Mansfield Amendment was not to allow DEA agents to get involved in arrests that caused problems for our foreign relations.

And that's exactly what this arrest did.

Justice Souter: Okay.

You had...

Justice O'Connor: Oh, I think you have to look very closely at that language and... and I think it may well not fit this case.

Mr. Hoffman: Well, the other... the other principle, though, which I think is the one that... that I think clearly applies to this case is... is the principle that statutes need to be interpreted to be consistent with our international law obligations, the Charming Betsy principle.

And... and there, even in the Maul case, the... the Maul Court was certainly aware of the fact that there were limits in the international law about the ability to enforce our law extraterritorially.

Justice Souter: You... you had... you told me you were going to give me two more principles.

Mr. Hoffman: That was the...

Justice Souter: One was Mansfield.

Justice Kennedy: What... what's next?

Mr. Hoffman: This was it.

The Charming Betsy is number two.

Justice Kennedy: Okay.

Mr. Hoffman: Sorry.

But... but that's the other principle, and I... I think the one that... that probably is most applicable to the situation is the principle that you should presume that Congress did not intend to authorize violations of international law, which is what occurred in this case.

And whether that's...

Chief Justice Rehnquist: They did it.

Justice Breyer: I mean, that's... that's the... the two things that maybe you're going to address now that are bothering me the most and they're related is what the DEA says is that this was a person who people in Mexico tortured to death.

This was not that they went in there for narcotics reasons.

They wanted to get the people who had tortured an American to death.

And how do we decide such a thing?

Should each of the courts of the United States decide that independently?

It's related to the problem of Mr. Mbeki.

Apartheid is a terrible thing, but according to the government, Mr. Mbeki, I take it... that's the highest authority, the President of South Africa, has told the United States that the judicial efforts to give compensation to victims are interfering with his efforts to build a democratic South Africa.

Now, I have to choose between those two?

I'd say democratic South Africa, protective of human rights has it all over compensating the victims even though that's terrible.

And what I'm asking you is what kinds of principles do you suggest that will allow Mr. Mbeki to decide what's right there and not 40 independent Federal judges somewhere.

And how will we decide such things as to whether this is the kind of effort to get a torturer or whether it is a violation of... of law?

What are the principles of limitation in these areas?

Mr. Hoffman: Well, I think that the... the first... in terms of the Alien Tort Claims Act, which I think is where the South Africa example is coming from mostly, I think that the... there... there are several limitations that are inherent in the jurisprudence.

One is that it's very difficult to find a customary international law norm, and it's not... it wasn't even easy in this case.

In fact, if there was... if the President authorized this kidnapping, there's no claim.

I should get that out of the way.

There's no claim under... under the Alien Tort Claims Act.

There's no claim under the Federal Tort Claims Act.

If the President and probably if the Attorney General said it is in the... America's interest to kidnap this person and bring him to justice, I don't have a claim.

But the reason I have a claim...

Justice Kennedy: How can...

Mr. Hoffman: is that the President didn't do that.

Justice Scalia: How is that consistent with an acknowledgement that there is an automatically self-executing brooding omnipresence of customary international law?

Mr. Hoffman: Well...

Justice Scalia: That's just inconsistent with such a notion.

Mr. Hoffman: Well, no.

It... it's actually not.

I mean, what the... what The Nereide said or what this Court said in The Nereide is until there's an act, the courts will enforce the law of nations.

In The Paquete Habana, what the Court said was we will enforce the law of nations, even against the military, for violations for the law... laws of war unless the President... unless there's a controlling executive, legislative, or judicial act.

And so if the President takes a controlling executive act, that's it.

It might still be a violation of international law, but... but under this Court's...

Justice Scalia: What about the commander-in-chief of the armed forces?

Would that... would that suffice?

Mr. Hoffman: I don't know the answer to that, although...

Justice Scalia: Or the Secretary of State.

Justice Kennedy: I want to know how far down you go.

Mr. Hoffman: I... I think that that it probably is the case that it goes down to the President and his cabinet.

In The Paquete Habana, this Court decided that the decision of an admiral who was charged with the enforcement of the blockade of Cuba during the SpanishAmerican War acted in violation of customary international law by seizing two fishing boats.

Those fishing boats were returned.

Well, they were actually sold.

There were damages issued based on customary law by... by this Court for the violation of the law of nations.

And... and in... in that case, you had a situation where the dissenters and the Government said this is a political question.

You... you shouldn't be able to decide this.

The Court said, no, we can decide the law of nations.

We can find the law of nations.

We can even find that the law of nations has evolved so that the way that fishing vessels were treated during the Napoleonic Wars might have been a matter of comity, but by the Spanish-American War, they had ripened into customary law, which we can find through the methods that have been employed by the courts of this country since the very beginning of the republic and before the republic was created.

Chief Justice Rehnquist: Mr. Hoffman, a moment ago you cited the Charming Betsy for a principle that we defer to international law.

Where is that?

I don't see any reference to it in your brief.

Mr. Hoffman: Oh, no.

We have an entire section, Your Honor, in the...

Chief Justice Rehnquist: Well... yours is the red brief?

Mr. Hoffman: Yes, and it's actually in the brief in... in 485, and it is the entire section...

Chief Justice Rehnquist: Oh, the other red brief.

Mr. Hoffman: It's... it's section I(C) from pages 17 through I believe 28.

Chief Justice Rehnquist: Thank you.

Mr. Hoffman: And... and the importance of that principle in this case is that... the... the Government wants you to read authorizing statutes as saying that any law enforcement agent, employee, or official by just having a general arrest authority, automatically has arrest authority over the world.

There's nothing in the legislative history.

There's nothing in any history that says that Congress even had the slightest thought that they were authorizing worldwide jurisdiction in the territory of other sovereign states by passing this general enactment.

Justice Scalia: What if the other... what if the foreign state has no objection to it?

What if the foreign state agrees, we would like help from American DEA agents?

Mr. Hoffman: We... we accept...

Justice Scalia: Under your theory, you'd say...

Mr. Hoffman: No.

Justice Scalia: this... this statute simply does not authorize foreign arrests.

Mr. Hoffman: That... that may be the... on the presumption of extraterritoriality and the way that...

Justice Stevens: Right.

Mr. Hoffman: that the Ninth Circuit read it.

Under the Charming Betsy principle, what our principle is is the one... we adopt what the... what the United States adopts as the principle of international law, which was laid out in Judge Sofaer's opinion in March 1980 through the Office of Legal Counsel which basically said on a review of all the international authorities, they found that it was a violation of international law to forcibly abduct somebody from another country if that country protested.

The protest actually eliminates the problems that the Government is talking about in terms of finding consent and whether there's another government that's recognized, all those things, because what Judge Sofaer said in the opinion was that acquiescence equals consent.

The... if a foreign government wants to assert that limit on... on U.S. law enforcement authority under international law, it had better make a protest, as Mexico did in this case.

And one of the reasons this is such an unusual case is that you just don't find many situations where there has been any kind of extraterritorial law enforcement where there has been a sovereign protest.

Justice O'Connor: Okay, but there... there... I think that the conduct that was the basis for the indictment here, the kidnap and torture and murder of a U.S. DEA agent in Mexico, can be punished in the United States in accordance with international law under the effects doctrine because we can criminalize conduct occurring in another country that has an effect on our country's security or core national interests, which clearly this did.

Mr. Hoffman: I completely agree with that.

There's no question.

There has never been in the case that... that the statute under which Dr. Alvarez was tried was extraterritorial.

There's no question in... in my mind, I don't think anybody's mind, that the United States in making that statute extraterritorial was acting consistent with its international obligations.

Justice O'Connor: Right.

Mr. Hoffman: But there is a difference between the jurisdiction to proscribe within international law and... and the jurisdiction to enforce those laws.

What the... what the Government says is that if you don't give us this authority, unlimited, anybody... it might even be the Forest Service that could do it because they might have the same statute... that... that it's either that or war.

Justice Breyer: Suppose he'd been guilty, convicted, 30 years.

Okay?

Now, does he get damages from the United States on your theory for every day he spent in prison?

Mr. Hoffman: Well, for one thing, the... the court... the court below cut off damages.

Justice Breyer: I'm not talking about this case.

I'm talking about an identical case... an identical case.

He's convicted, sent to prison for 20 years.

Does he get damages for each of those days?

Mr. Hoffman: Certainly not under the rule below, and I think...

Justice Breyer: What's the right rule in your...

Mr. Hoffman: What's the right rule?

You know, theoretically I suppose that if you are imprisoning somebody in violation of international law, you should have a remedy that responds to that and that's...

Justice Kennedy: Okay.

Justice Breyer: That's one of the problems.

I want... but I... I've tried to focus the main problem by calling to mind Mr. Mbeki, and the reason is because it's such a good example.

I would have thought apartheid does violate norms of international law certainly where violence attaches.

I would have thought there are lots of private people who aid and abet.

I would have thought it would be easy to find a victim and bring a lawsuit, and I would have also thought it's not totally beyond question that the president of a country could think they're counterproductive... those lawsuits... in terms of the democracy we're trying to build.

So I've tried to create some tension there, and I want to know you, who want a rule...

Mr. Hoffman: Right.

Justice Breyer: that allows these suits in the court... how does it become limited in this circumstance, an analogous circumstance?

Mr. Hoffman: I apologize for not completing my answer.

But I started with the idea that there were a limited number of norms, but there's more to that.

There's, of course, the act of state doctrine.

And so...

Justice Breyer: That's why I chose in my example aiding and abetting by a private citizen of the very bad thing of apartheid leaving... leading to deaths and... and violence, et cetera, as happened.

And... and if I can't... now, the European Commission has a method here in their brief.

So I'm interested is that a proper method.

Mr. Hoffman: Well, I think it...

Justice Breyer: You want to propose some other method, but to propose no method...

Mr. Hoffman: Well...

Justice Breyer: it seems to me, is to concede...

Mr. Hoffman: What...

Justice Breyer: the validity of the Government's point about lawsuits here.

Mr. Hoffman: Well, I think that the... first of all, particularly in the corporate realm, there has not been a judgment yet against a corporation in an alien tort statute case.

There just hasn't.

And many of them have been dismissed.

Some have been dismissed on the political question doctrine.

We've mentioned some in our brief.

Where there is a conflict between this country's foreign policy and the progress of the lawsuit, at least in some circumstances, the case can be dismissed on political question grounds.

On some other cases, it... it will be dismissed on act of state grounds.

The... the one pertinent limitation... and... and it's actually been raised by the other side... is exhaustion of local remedies.

And... and what... what... the answer you got on exhaustion of local remedies was some theorists think that that's part of international law.

It is part of international law.

In fact, in a lot of the early alien tort statute cases, defendants did raise exhaustion of local remedies.

One of the reasons that it hasn't been a big issue is that a lot of the people that are coming to this country to vindicate their human rights are refugees that have fled from places like Burma or revolutionary Ethiopia or other places that have no legal system and could not possibly give a local remedy.

Now, that won't be the case for... for cases that arise in other contexts where there is.

And I think the courts can dismiss based on exhaustion of local remedies where there are remedies to be done, and that is not something that... the... the court would apply that as part of... of international law, as part of the law of nations because it is part of the law of nations.

And so the TVPA actually took the lead from the alien tort statute in having an exhaustion of local remedies issue, and I think that a lot of the... the issues about separation of powers and... and the... the parade horribles about what might happen because of these cases, this is...

Justice Stevens: But wouldn't that doctrine require you to lose this lawsuit?

Mr. Hoffman: Excuse me?

Justice Stevens: Wouldn't the doctrine of exhaustion of remedies require you to lose this lawsuit?

Mr. Hoffman: Well, no, actually because I don't... we... we can't get a remedy in Mexico against...

Chief Justice Rehnquist: Why not?

Mr. Hoffman: We certainly can't get a remedy in Mexico against Mr. Sosa.

Mr. Sosa is here, and the United States is here.

And what remedy would he get in a Mexican court if he can't... this is a transitory tort.

I mean, this is the kind of transitory tort that would have been well understood by Lord Mansfield, false imprisonment.

That was...

Justice Scalia: What tort issue... what...

That's fine.

Why... why couldn't you sue him in Mexico, service by mail?

Mr. Hoffman: We could sue him here in the State court.

He has a State cause of action.

And in fact, one of the...

Justice Scalia: Why... why can't you sue in Mexico?

We're talking about exhaustion of local remedies?

Why couldn't you have sued him in Mexico?

Mr. Hoffman: Where do we get... where do we get jurisdiction over him?

Justice Scalia: He committed the tort in Mexico.

Mr. Hoffman: We don't have personal jurisdiction over...

Justice Scalia: You... you don't need it.

You... you serve by mail.

Justice Ginsburg: That's notice.

You certainly do have personal jurisdiction over him where he acted.

Mr. Hoffman: Well, the only thing I can say is that for... we have now been litigating the case, as you know, since... for 12 years, and the exhaustion of... of local remedies has not come up as a defense.

And I think it would be a defense that the defendant would have to...

Justice Scalia: That's because a lot of people don't think it's part of international law probably.

Mr. Hoffman: But...

[Laughter]

I... I think... I think it is and it has been raised.

Justice Breyer: What about restricting these lawsuits to instances of violation of basic norms of international law where the international law itself foresees universal jurisdiction in, of course, the absence of some indication from Congress that they don't want such lawsuits?

Mr. Hoffman: I think...

Justice Breyer: What about that... that will not help your case I don't think in this instance, but I'm looking in your opinion as an...

Mr. Hoffman: I guess the question... the question is from our standpoint the... the Founders wanted to enforce the law of nations.

What's changed is that the law of nations has changed.

Since Nuremberg, there's an international law of human rights.

Some... some rights within that have ripened into customary law.

And so the reason you have more cases is that you have a different world than you had in 1789.

That's really what has changed.

Justice O'Connor: It's the human rights enforcement push, is it not?

Mr. Hoffman: Well, I think it... I think it is.

And in fact, a Justice of this Court started it.

I mean, it's the Nuremberg principle that individuals can be responsible for the violation of international human rights.

And what the... what the alien tort statute has done is provide a forum for people who have suffered terrible human rights violations in general in these cases to come here and have their rights adjudicated when they find the defendant here.

So when one of my clients met her torturer at a hotel in Atlanta, Georgia, she was able to go to a court and... and get a remedy for her torture because her torturer was here and she was here.

And that's the... that's a paradigm of what... what this law has been...

Justice Breyer: What about... what about the principle that you have some such violations which will work well if judges in every nation try to enforce them and others where the judges will fall over themselves with contradictory decisions creating a mess?

And one good way to separate the former from the latter is to look to see if universal jurisdiction is part of or at least foreseen by or at least consistent with the international law norm.

I'm looking for ways that are going to avoid the problems.

Mr. Hoffman: I would have two... two responses really.

One is that the universal jurisdiction principle is primarily a principle of the assertion of criminal jurisdiction for certain international crimes.

And so I don't think that it fits very well...

Justice Breyer: But in many countries, criminal jurisdiction is...

Mr. Hoffman: That's true.

Justice Breyer: accompanied by civil jurisdiction...

Mr. Hoffman: No, that's true.

Justice Breyer: because they're right in the criminal courtroom.

Mr. Hoffman: That's true, and there are differences in domestic statutes around the world in terms of... of enforcement of these kinds of human rights.

I mean, they're incorporated in various ways.

There are universal jurisdictions that... statutes that apply to some but not all of these claims.

I think that the... the... our... our objection to that would be that it would be trying to... to find a limit that's really not in the statute and really is a... a function, we think, for Congress to decide.

Congress... there was a question before, has anybody... has there ever been an... an attempt to change the alien tort statute?

As far as we know, there has never been a bill in Congress to ask for any change.

In fact, the administration in the Filartiga case and in Kadic later basically said... in Filartiga, they said it would be a problem for our foreign relations if we refused to recognize a remedy in this kind of case.

And in the Torture Victim Protection Act, it is very clear in the Senate and House reports, as clear as I think Congress could possibly be, that Congress liked the development in Filartiga case.

Congress rejected the arguments that are being made to you by the petitioners in this case, explicitly with reference to Judge Bork's opinion in Tel-Oren, and saw none of these problems with the enforcement of the alien tort statute.

Justice Ginsburg: Well, they did... they did in the Tort Victim Protection Act provide a definite claim, something with a... with a statute of limitations, which is not here, something with a definition of what torture is, not tort, the world of tort, so that... that that looks like a model of specificity where 1350 is just the opposite.

Mr. Hoffman: Well, I think... well, that's because of when 1350 was drafted.

But I think that the... I think that those problems are not as insurmountable as they're made out to be.

I think the courts have been able to deal with those problems in the way that courts have dealt with them in other areas of the law.

I mean, section 1983, for example, doesn't provide a lot of those things either, and courts have been able to fashion the rules that would govern those kinds of cases...

Chief Justice Rehnquist: But you... you do... in 1983, you do have reference to very specific things, to provisions of Federal statutory law or to provisions of the Constitution.

Mr. Hoffman: Well, and you have... you have in section 1988 a... a reference to State law, and this Court has often had reference to State law and sometimes it's had reference to rules that are based on... on different reasons.

But the... the courts... I mean, for example, in the statute of limitations, the statute of limitations in the Alien Tort Claims Act was... was shorter before the Torture Victim Protection Act, and since the Torture Victim Protection Act, the courts have applied the statute of limitations that Congress believes is appropriate to those... to those cases.

So I... I want to... I know I still don't answer your... I'm trying to answer your question.

And then my... my... our feeling about that is that those kinds of policy choices, where there are differences of opinion even between administrations about how this should be... I mean, that's clear.

Some administrations think this is a great way to proclaim to the world our commitment to the law of nations.

Our feeling is that is completely consistent with what the Founders thought about the law of nations too.

They were proclaiming their commitment to the law of nations and the alien tort statute does that in the international human rights field today.

We have said that around the world and... and it is true.

If there need to be modifications to it, Congress can modify it.

There's no question about that.

And even in... with respect to particular norms, because this is enforcing the law of nations and because it can be displaced by... by controlling executive decisions, we're protected.

There's no norm that's been enforced that the United States disagrees with.

There's a disagreement in this...

Justice O'Connor: What about a suit based on some norm covered by a treaty where Congress... where the Senate has said it's non-self-executing?

Mr. Hoffman: Right.

Well, I think there are two different... there... there are two different issues there I think.

One is if the treaty... if the United States in the treaty has issued a reservation to the norm, then I don't... I don't think it's enforceable.

I think there's a reservation, we don't accept that norm.

I think the... the difference with the non-self-executing declaration is that that doesn't mean that we don't accept the norms.

The non-self-executing declaration is... is we might or we might not.

I mean, it could be evidence and it might be something that would be looked at by a court, but the... what... what... because Article VI of the Constitution says that treaties are the law of the land and shall be enforced, including by the courts of the... of the States, if the United States entered into human rights treaties without that reservation, then many norms which are not customary norms... in the... in the International Covenant on Civil and Political Rights, there are probably a handful of norms that would be accepted as being customary norms and many that would go beyond anything that people would argue as customary.

So the...

Justice Scalia: Who... who decides this?

I'm really am sort of in the woods as to...

Mr. Hoffman: The courts.

The courts can decide this.

Justice Kennedy: I see.

What... what...

Mr. Hoffman: The courts have always decided this kind of thing.

Justice Scalia: 51 percent of the countries of the world accept them?

They're... they're customary norms?

Mr. Hoffman: No.

If there's a division of opinion, as this Court said in Sabbattino... and in fact, in Sabbattino, the United States Government came into the Court and said, you should decide this case because we think the law is... there's a violation of international law here.

And the Court decided, no.

There's a diversity of opinion and... and the act of state doctrine precludes us from issuing an opinion in that.

And so where there is a genuine diversity of opinion... and I would say we have cited several cases like the Flores case which rejects arguments based on environmental torts.

There are a number of cases that have brought business kinds of torts that... that have just been thrown out of court.

And... and I think that the... the courts have done...

Justice Stevens: May I just recall Sabbattino?

I thought the assumption the Court made in Sabbattino was that there was a clear violation of international law, but nevertheless, the act of state doctrine applied.

That's my recollection of Justice Harlan's opinion.

Mr. Hoffman: I don't... that would not be what I would view it as.

I think what... what Justice Harlan said was there... there was diverse opinion within the world about the violation of law.

Justice Stevens: That's not what prompted Justice White's dissent.

He was so upset by the fact that it was a clear violation of law, but we nevertheless would give the defense act of state doctrine to Cuba.

But you may be right, but that's my... it was my recollection of the opinion.

Mr. Hoffman: My point I guess would be, though, that where there is diversity among nations or about the norm, then I don't think they can be forced... enforced within the alien tort statute.

And I think that in the South Africa case, for example, I mean, I wouldn't be surprised if that would be dismissed.

It's... I think there's a motion to dismiss pending, and it may be that... that that's the kind of case that ought not to be in the courts.

I don't know much about the details of it, so it's very hard to make that kind of comment.

But you know, I think that there are... there are doctrines that the Court has, both domestically and internationally, to make sure that these problems don't become the kind of problems that are there.

And if they are problems, they can be remedied.

They can be remedied by Congress.

And it seems to us that that's where... that's where the decision should be made.

I see that my time is up.

And the... the closing remark I... I would make really is that in... in Ker v. Illinois in 1886, this Court denied a remedy to someone who had been kidnapped from another country and said that he could be tried notwithstanding that violation.

The Court also said that that person would not be without a remedy, that all that person had to do was bring a suit for trespass and false arrest, and the Court was sure that that statement would provide a remedy in the courts.

After Dr. Alvarez's acquittal, he took up the Court on that suggestion that he might get a remedy under the statutes that Congress has... where Congress has authorized the courts to provide redress for... for those kinds of torts and for those kinds of violations of the law of nations.

And to... all that we are asking from this Court and all we asked in the courts below is that the courts perform the kinds of functions that courts have performed for hundreds of years before the republic, all during the republic in providing a damage remedy for the violation of personal rights.

And upholding the modest judgment in this case is not going to undermine our national security.

It will only affirm the values that have made the... the country as great as it is.

Thank you very much.

Rebuttal of Paul D. Clement

Chief Justice Rehnquist: Thank you, Mr. Hoffman.

Mr. Clement, you have 4 minutes remaining.

Mr. Clement: Thank you, Mr. Chief Justice.

If I could first address the argument that is advanced by respondent that we can solve the extraterritorial arrest problem by simply insisting on there being consent.

I think this Court in its first Alvarez-Machain opinion at footnote 16 made the point that there are some issues that are best dealt with in diplomatic relations between countries and not in the courts of a single party.

And I think consent for an extraterritorial arrest is a prototypical example of that.

In diplomatic relations between countries, a certain amount of ambiguity can make the diplomatic relation function and so there may be varying degrees of consent.

In the context of a United States judicial proceeding, though, the tendency is to bore down and find out whether there was some modicum of consent, some legal standard of consent.

And I would point again to the example of Mir Aimal Kasi as how having courts bear down and figure out the exact extent of consent between Pakistan and FBI agents in 1997 would not have been a productive exercise for the courts.

A very brief note on the Ker opinion, Ker against Illinois that was just mentioned at the closing of respondents' argument.

It's true the Court said that there might be an action for kidnapping in that case, but this Court did not opine in any way what would be the relevant law in that kidnapping that occurred in Peru.

I would suggest if it had looked at that issue, it would have suggested that the law that applied would be the law of Peru in the same way that if there is any law that applies to the false arrest here, it is the law of Mexico and that only underscores that this arrest, even if it were actionable somehow, would fall within the foreign country exemption to the Federal Tort Claims Act.

If I could say two things about section 1350.

The... first of all, in terms of trying to divine exactly what was in Congress' mind when it enacted this provision in 1789, I would say that that is exceedingly difficult and that strongly suggests that what the Court should do is simply apply its rules for when there is a cause of action.

But if there is any agreement at all as to what at least one of the events that led to the passage of the statute was, it was the events involving ambassadors in the United States and violations and assaults on those ambassadors.

And I think the reaction to those assaults is telling.

First, there were no civil actions ever brought in the courts that anybody is aware of to remedy those actions.

What were brought are common law criminal actions.

That's what the Longchamps case in Pennsylvania was.

It was a common law criminal action.

Now, I don't think anybody would suggest that a common law criminal action in law of nations somehow survives this Court... this Court's decision in Hudson, saying there's no longer any common law criminal jurisdiction.

In the same way, to the extent that the Court... the Congress may have had in mind some general common law action that was available, there's no particular reason why that decision should withstand the Erie decision.

But again, I think it is noteworthy that there was no civil action in response to those incidents.

What there was is the 1781 Continental Congress action, and it just didn't ask the court... the State courts to do something about this.

It told the courts to authorize actions.

The one court... the one State that took up the challenge was Connecticut, and if you look at what Connecticut did, it is very telling because first they put in a jurisdictional provision.

Then as a separate provision, they used language that is rights-conferring language.

It seems obvious that Congress with section 1350 did the former but not the latter.

There is jurisdiction, but there is not any rights-creating language.

Now, it may be a bit anomalous to apply this Court's current conception to an old statute like the Judiciary Act of 1789, but this Court has done it before.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Clement.

The case is submitted.

Justice O'Connor: The honorable court is now adjourned until tomorrow at ten o'clock.