B ERRY _F INAL _27.2 9/17/2009 2:08:10 PM Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute M. Anderson Berry* I. I NTRODUCTION In the Supreme Court’s only opinion regarding the Alien Tort Statute (ATS), 1 Sosa v. Alvarez-Machain , the Court unanimously agreed that although the first House of Representatives modified the Senate’s draft of what eventually became the Judiciary Act of 1789, 2 “it made hardly any changes to the provi- sions on aliens, including what became the ATS.” 3 The Court did not point out any of these changes, but did comment that, because of the “poverty of drafting history,” modern commentators have been forced to concentrate on the text of the ATS itself. 4 As noted by the Court, commentators have remarked on the in- * Associate, Jones Day - San Francisco, California. Many thanks to David D. Caron and John C. Yoo, who commented on earlier drafts. 1. 28 U.S.C. § 1350 is generally referred to as the Alien Tort Statute or ATS, but also as the Alien Tort Claims Act or ATCA. 2. This act is formally called An Act to Establish the Judicial Courts of the United States , Ch. 20, 1 Stat. 73 (1789), but will be referred to by its common moniker, the Judiciary Act of 1789 ; The Senate’s Printed Draft referred to is A Bill to Establish the Judicial Courts of the United States ((New-York: Printed by Thomas Greenleaf), (undated) [June 16, 1789]) [hereinafter Senate’s Printed Draft ], microformed on EARLY AMERICAN IMPRINTS, NO. 45657 (Readex Microprint Corp.) (To avoid confusion with another printed draft, the first line of this version, after the title, is: “Be it enacted by the senate and representatives….”; see also, Oliver Ellsworth, William Paterson & Caleb Strong, A Bill to Establish the Judicial Courts of the United States (June 12, 1789) [hereinafter Senate’s Handwritten Draft ]). 3. 542 U.S. 692, 696, 718 (2004) (citing Charles Warren, New Light on the History of the Federal Judiciary Act of 1789 , 37 HARV. L. REV. 49 (1923), and William Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations , 18 CONN. L. REV. 467, 498 (1986). 4 . Sosa , 542 U.S. at 718. The text of the ATS as it appeared in the Judiciary Act of 1789, Ch. 20, § 9(b), 1 Stat. at 76-77, reads: “[The District Courts] shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States” (emphasis 316
B ERRY _F INAL _27.2 9/17/2009 2:08:10 PM 2009] WHETHER FOREIGNER OR ALIEN 317 novative use of the word “tort” 5 and the mixture of expansive 6 and restrictive 7 terms. 8 “But despite considerable scholarly attention,” Justice Souter continued, “it is fair to say that a consensus understanding of what Congress intended has proven elusive.” 9 Jurists and commentators have also addressed the word “cognizance,” 10 and articles considering the ATS in light of Article III speculate about the types of cases the First Federal Congress might have had in mind when it used the phrase “tort only in violation of the law of nations.” 11 But until now, the word that puts the “A” in ATS has been overlooked. 12 No court or commentator has delved into the 1789 meaning of “alien,” or into the drafters’ understanding of and possible intentions behind that word. When Justice Souter pointed out in Sosa that the first House made hardly any changes when it modified the Senate’s draft of the judicial bill, he could have said that the House made only one change: The bill the Senate submitted for House approval on Monday, July 20, 1789, read, in pertinent part, that the District Courts shall have jurisdiction “of all causes where a foreigner sues for a tort only in violation of the law of nations….” 13 The house retained that sen- added); the ATS as it is currently codified in 28 U.S.C. § 1350 provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 5 . See Joseph Modeste Sweeney, A Tort only in Violation of the Law of Nations , 18 H ASTINGS I NT ’ L & C OMP . L. R EV . 445 (1995) (arguing that “tort” refers to the law of prize); see, Curtis A. Bradley, The Alien Tort Statute and Article III , 42 VA. J. INT’L L. 587, 621 (2002) (show- ing, in a letter from Edmund Pendleton to James Madison and Senator Richard Henry Lee, a con- temporaneous misunderstanding of the term “tort” as it was used in the Senate’s Printed Draft of A Bill to Establish the Judicial Courts of the United States : “What is meant by a Tort? Is it intended to include suits for the Recovery of debts, or on breach of Contracts, as a reference to the laws of Na- tions & Federal treaties seems to indicate; or does it only embrace Personal wrongs, according to it’s [sic] usual legal meaning, or violations of Personal or Official privilege of foreigners?”). See Tho- mas H. Lee, The Safe-Conduct Theory of the Alien Tort Statute , 106 C OLUM . L. R EV . 830, 837, 870 (2006) (explaining that “[a] tort, as the word was understood in 1789, was simply a noncontract in- jury to person or property.”). 6 . See, e.g. , Casto, supra note 3, at 500 (addressing “all causes”). 7 . See, e.g. , Kenneth C. Randall, Federal Jurisdiction over International Law Claims: Inquir- ies into the Alien Tort Statute , 18 N.Y.U.J. I NT ’ L L. & P OL . 1, 28-31 (1985) (addressing the restric- tive phrase, “for a tort only,” limiting suits to torts, as opposed to commercial actions, especially by British plaintiffs). 8 . Sosa further acknowledged that the “historical scholarship has also placed the ATS within the competition between federalist and anti-federalist forces over the national role in foreign rela- tions,” but only in relation to the possible compromise reflected in the non-exclusiveness of federal jurisdiction surrounding the ATS. Sosa , 542 U.S. at 718; see also Randall, supra note 7, at 22-23. 9 . Sosa, 542 U.S. at 718-19. 10. Casto, supra note 3, at 479, n.61 (finding that cognizance is synonymous with jurisdiction and “refer[s] to a court’s power to try a case.”). 11. Bradley, supra note 5, at 590. 12 . See, Lee , supra note 5, at 849. 13 . A Bill to Establish the Judicial Courts of the United States, 4, ll. 6, 7 ((New-York: Printed by Thomas Greenleaf.), (undated [July 23, 1789])) [hereinafter House’s Printed Draft ], microformed
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