UNHOLY ALLIANCE

Judicial Imperialism: There's one way in which America is as bad as Belgium (ROBERT H. BORK, June 22, 2003, Wall Street Journal)

We Americans are rightly amused by Belgium's claim to universal jurisdiction so that its courts can try violations of human rights anywhere in the world, having absolutely no relation to Belgium. For instance, Belgium recently opened an investigation of former President Bush, then-Secretary of Defense Dick Cheney, and Gens. Colin Powell and Norman Schwarzkopf for alleged crimes in the first Gulf War. But while we are scoffing, we ought to consider that our courts are engaged in the same judicial imperialism.

U.S. courts are deciding cases by citizens of Paraguay against another citizen of Paraguay for acts in Paraguay; claims by citizens of
Bosnia-Herzegovina against the leader of the Bosnian Serbs; and claims against the estate of a former Philippine president, although all plaintiffs and defendants were Philippine nationals and the alleged violations occurred entirely in the Philippines. Major American corporations, such as Texaco and Unocal, are being sued when they do business abroad, for the human-rights violations of host governments. The Ninth U.S. Circuit Court of Appeals, sitting en banc, has just upheld suits filed here against foreign nationals who assisted our government in the seizure of criminals abroad. We may expect soon suits against our allies for capturing and extraditing alleged terrorists.

How did we get to this state of affairs? Many American courts claim authority from the little-known Alien Tort Act: "The district courts shall have original jurisdiction of any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States." Early in my time on the federal appellate bench, I sat on a three-judge panel that heard Tel-Oren v. Libyan Arab Republic (1984), involving Israelis' claims against the Palestine Liberation Organization, Libya and others for a murderous attack launched in Israel. It seemed preposterous that we should decide the legality of an assault by foreigners against foreigners on foreign soil. My first thought was that the statute must be a modern excrescence. To my chagrin, it turned out to have been part of the first Judiciary Act of 1789.

There was an excrescence all right, but it was not the statute. It was what the Second Circuit Court of Appeals had made of it in Filartiga v. Pena-Irala (1980), the Paraguayan case. Torture, the court said, was a violation of customary international law and hence within the Alien Tort Act. Judge Roger Robb and I on different grounds rejected Filartiga's reasoning. Since then, most federal courts have chosen to follow Filartiga rather than Tel-Oren. Yet it is clear not only that Filartiga is wrong but that it is a serious incursion by courts into the domain of Congress, involving, as it does, the enactment of world-wide law by an unholy alliance of imperialistic judges and a leftish cadre of international law professors.

Maybe Congress can re-exert its authority as part of broader tort reform? Posted by Orrin Judd at June 23, 2003 10:09 AM