What is this case doing here? Human rights litigation in the courts of the United States.

• Author: Schneebaum, Steven M.
• Position: International Law in Crisis

I.

In March 2001, I was a member of a team of lawyers who represented the plaintiffs in a case called Doe v. Lumintang before the U.S. District Court for the District of Columbia. (1) We put on evidence that an Indonesian major general, Johny Lumintang, had given direct orders in 1999, as the Indonesian military withdrew from the country now called Timor-Leste (East Timor), for the brutal massacre of civilians. (2) The defendant was Deputy Chief of Staff of the Army, and in later years rose to the rank of lieutenant general. (3) We argued that he was civilly liable, under the doctrine of command responsibility, for the torture and killing of eight individuals who were our clients or our clients' decedents. (4) Jurisdiction was invoked under the Alien Tort Statute (ATS), 28 U.S.C. [section] 1350, enacted in 1789, under which the federal courts may hear tort cases brought by non-U.S, citizens alleging violations of international law. (5)

Most of our clients had never been off their home island before. They were illiterate and, by the time they arrived in Washington for trial, in deep culture shock. Their testimony was mostly given in Tetum, a language spoken by fewer than half a million people around the world. (6) The key documents, written in Bahasa Indonesia, were unintelligible in their original form to anyone in the courtroom.

Magistrate Judge Alan Kay listened as witnesses testified about East Timor's decades of struggle for independence from Indonesia. We produced aerial photographs, and had an expert explain the devastation that he could read in those pictures: something like 75% of the man-made structures on the island were destroyed as the Indonesian forces decamped, knowing that they could no longer govern what they considered a province of their country, but determined to leave behind such ruin and misery that no one else would be able--or would want--to do so either. (7)

We heard a mother testify about her futile efforts to keep her young son from fleeing their village to join pro-independence militias in the jungle. "All who stay in the village will be killed," explained the young man. His mother replied, "It does not matter. At least we will all die together." He left; she never saw him alive again. The testimony of this woman, barely four feet nine inches tall and terrified, like the eerie silence as she and then the interpreter spoke, was searing and unforgettable.

The other side of the courtroom was empty. Neither General Lumintang, who had been personally served with process at Washington Dulles International Airport while on a visit to the United States, nor the Government or Embassy of Indonesia, had entered an appearance in the litigation.

In the end, Judge Kay authored a denunciation both passionate and scholarly of the defendant's violation of numerous norms of international law, finding him liable for $66 million in damages. (8) At that stage, and in light of the limited but devastating press coverage of the decision, the Indonesian Embassy filed a petition for leave to answer the complaint, which was granted, followed by a motion to dismiss, which was denied. (9) The Embassy then, on behalf of General Lumintang, appealed from the judgment of the Magistrate Judge to District Judge Gladys Kessler, who reversed, albeit with open and declared reluctance: service of process had been affected outside of the District of Columbia, and was therefore invalid. (10) The case was dismissed for lack of personal jurisdiction over the defendant. (11) Given the wording of Rule 4 of the Federal Rules of Civil Procedure regarding territorial constraints on proper service, there was little basis for appeal. (12)

The case against Johny Lumintang was by no means my first foray into ATS litigation. I was counsel for three nongovernmental organizations (NGOs) as amici curiae in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), and sat at counsel table in New York City as Peter Weiss delivered the historic and powerful argument that led to the landmark Second Circuit decision. (13) I have appeared as counsel or have represented amici in numerous cases since then, have authored over a dozen law review articles, and have given countless speeches on this topic.

In this Symposium on "International Law in Crisis," and as part of the panel tasked with discussing "International Law in U.S. Courts," however, I want to raise a question that has not been widely discussed among human rights advocates (although it is frequently raised by our critics): is it sensible, and is it right, for a court in Washington, D.C., established under the United States Constitution and operating under laws enacted by the United States Congress, to use its limited time and resources to hear a case like Doe v. Lumintang? There is, after all, an undeniable backlash against the hearing of such cases. What do we say to a federal judge who asks, plaintively, "What is this case doing here?"

II.

If this question is understood simply as a legal one--i.e., is it proper as a matter of law for a U.S. court to exercise subject-matter and personal jurisdiction in a case like this?--then the answer is easy. No less than the United States Supreme Court, in Sosa v. Alvarez-Machain (14)--over the vehement protests of the Bush Administration then in power--unsurprisingly concluded that the venerable ATS says what it means and means what it says. That is, the district courts do have subject-matter jurisdiction over any suit, brought "by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (15) The law of nations today includes norms of the international law of human rights. If personal jurisdiction can be obtained over a prospective defendant accused of violating those norms, there is no reason why such a suit cannot go forward.

Justice David Souter, speaking for the Court in Sosa, made clear that not just any alleged violation of international law--or even of fundamental human rights--will sustain the subject-matter jurisdiction of the federal courts under the ATS. (16) To prevail, an ATS plaintiff must allege, in a manner capable of surviving the standard challenges against vague, conclusory, or inadequately pleaded complaints, (17) and ultimately must show that the rule claimed to have been violated by the defendant was "specific, universal, and obligatory." (18) And, of course, as my team was reminded in Lumintang, like any civil plaintiff, an ATS claimant must properly obtain personal jurisdiction, must serve process within the rules, and must observe other procedural constraints, such as applicable statutes of limitations.

Moreover, other defenses normally available to civil defendants in cases spanning borders may be deployed here. In appropriate circumstances, for instance, a defendant may look for protection behind the doctrines of act of state, (19) forum non conveniens, (20) or political question (equitable abstention). (21) Or, he or she may claim entitlement to sovereign immunity under federal statute (22) or, after the Supreme Court's decision in Samantar v. Yusuf, (23) in appropriate circumstances according to a suggestion to that effect by the Department of State. (24)

However high the barriers to permission to proceed may be, certain principles of the law of nations have been deemed by the courts to be "specific, universal, and obligatory," and thus to permit federal jurisdiction over well-pleaded charges that their violation by named and served defendants have injured identifiable plaintiffs. (25) From a legal perspective, then, there is no reason for the courts to decline to exercise jurisdiction in these cases, which arise within the four comers of a statute that has been on the books very nearly as long as the United States has been an independent country.

When federal law establishes a basis for subject-matter jurisdiction, it is exceptional for courts to decline to exercise that jurisdiction because of foreign policy considerations. Our courts have long accepted in principle the notion--in the famous words of Mr. Justice Grey in The Paquete Habana (26)--that "[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination." (27) Nor was that concept novel even at the threshold of the twentieth century: it may be found in the self-imposed obligation recorded by Thomas Jefferson in the Declaration of our Independence, not only to explain the colonists' revolutionary intentions to demonstrate a "decent respect to the opinions of mankind," but also to insist that the new Republic take its place as a coequal member of the community of sovereign nations. (28)

There are, of course, exceptional situations in which adjudication of a dispute before a court might actually damage the ability of the executive branch to conduct the foreign policy of the United States without interference from the judiciary. (29) But few are the ATS lawsuits in which the federal government has urged the courts to reject claims, or to abstain from hearing them, because of such concerns. (30) ATS cases, after all, usually involve allegations that a particular individual, in the course of carrying out a public commission, violated the victims' fundamental human rights, by ignoring a jus cogens norm such as the one forbidding torture. It is rarely in the interests of the United States to align itself with someone credibly accused of such conduct, in seeking to immunize him against individual liability.

And since the Supreme Court opined on the meaning of the ATS in Sosa for the first time in the more than two centuries the statute has been on the books, the lower courts have continued to declare certain ATS cases to be well within the four corners of the law. Thus, for example, a district court found jurisdiction in a case alleging that a...