The Third Wave: The Alien Tort Statute and the War on Terrorism

Abstract:     
The Supreme Court's decision in Sosa v. Alvarez-Machain to keep the door ajar for lawsuits alleging violations of international law under the Alien Tort Statute (ATS) has important implications for the U.S. government's prosecution of the war on terrorism. Unlike "first wave" ATS lawsuits against other aliens, or "second wave" ATS lawsuits against multinational corporations, what I call the "third wave" of ATS lawsuits are directed at the U.S. government itself. This third wave has already manifested itself in ATS lawsuits arising out of U.S. mistreatment of prisoners held in Iraq, alleged mistreatment of detainees at Guantanamo Bay, and the rendition of suspected terrorists to third countries.

My goal in this symposium essay is neither to celebrate nor to condemn this coming wave of ATS litigation. Rather, my more modest task is to describe examples of these new ATS lawsuits, explain why the Sosa decision will not prevent such lawsuits, and to suggest how these lawsuits will highlight the role of the executive branch in the administration of international law by U.S. courts. As a doctrinal matter, the executive branch has a crucial, yet unexplored, role to play in the application of international law by domestic courts. The third wave ATS lawsuits will test the importance of this role.

Keywords: customary international law, alien tort statute, executive power

JEL Classifications: K33

Accepted Paper Series