DRUG CASE TESTS OLD TORT LAW IN HIGH COURT

When Congress set up the federal court system in 1789, it gave aliens the
right to sue for "violation of the law of nations or a treaty of the United
States."

Tomorrow, 215 years after the law was passed, the U.S. Supreme Court will
consider what that sentence means. The ruling could have a major impact on
how human-rights cases, and even lawsuits against terrorists, are pursued
in the future.

The law, known as the Alien Tort Claims Act, was rarely cited and all but
forgotten by the 19th century. But since 1980, human-rights groups and
victims of atrocities have filed about 100 lawsuits under the statute,
according to lawyer Eric Biel of Human Rights First, an advocacy group.
Defendants have included former Philippines President Ferdinand Marcos and
Radovan Karadzic, the Bosnian Serb leader and indicted war criminal. Some
plaintiffs have targeted overseas operations of U.S. corporations such as
Exxon Mobil Corp. and Unocal Corp., which face lawsuits for allegedly
colluding with repressive governments in Indonesia and Myanmar to smooth
the way for oil projects. Both companies deny the charges. Another current
case seeks compensation from companies that supplied the apartheid regime
of South Africa.

Business groups argue that the law has been wrongly exploited by activist
lawyers and courts that have interpreted it too broadly. The Bush
administration agrees. It further warns that the law as generally construed
by appellate courts interferes with foreign policy by allowing aliens to
file lawsuits that could embarrass foreign governments whom the U.S. seeks
to enlist for the war on terrorism and other objectives. Opponents also
argue that the original statute provides no authority to file suit, but
only paves the way for Congress to do so should it adopt a separate act
defining which violations can be addressed in court.

Supporters, including relatives of some victims killed on Sept. 11, 2001,
counter that the law's very purpose is to allow private citizens who lack
citizenship to vindicate rights that governments might find inconvenient to
acknowledge. They note that less than a fifth of the cases brought under
the law since 1980 have prevailed.

"Coming to this country and being able to sue somebody that killed your
brother in your country...that's fantastic!" says Dolly Filartiga, a
Paraguayan refugee whose lawsuit led to a landmark decision in 1980 that
revived the alien tort law. Ms. Filartiga successfully sued a former
Paraguayan police official who was living illegally in the U.S. for the
torture-murder of her teenage brother, Joelito.

Like many alien tort plaintiffs, Ms. Filartiga has yet to collect a dime of
her $10 million judgment, as the defendant returned to Paraguay and refused
to pay. But she says the case was more than a moral vindication: It added
to the pressure that led to the 1989 overthrow of strongman Alfredo
Stroessner and the election of a democratic government in Paraguay.

A lawyer who represented Ms. Filartiga, Peter Weiss of the Center for
Constitutional Rights in New York, says he and his colleagues unearthed the
law in the early 1970s while searching for a way to help Vietnamese
civilians sue over the 1968 My Lai massacre committed by U.S. soldiers.
Although they weren't able to apply it to My Lai, Mr. Weiss says the
activists concluded that torture victims could use the law under
international law doctrines.

Eventually, they won backing from the Second U.S. Circuit Court of Appeals
in New York. The 18th century "law of nations" had evolved into modern
international law, Judge Irving Kaufman wrote, and "the torturer has
become, like the pirate and the slave trader before him...an enemy of all
mankind."

Mr. Weiss says the court made it clear that the law could be applied only
in cases involving "something that's generally recognized as abhorrent,
like torture."

The case before the high court tomorrow involves neither corporate
liability nor the machinations of a repressive foreign regime. It stems
from the 1985 abduction and torture-killing of U.S. narcotics agent Enrique
Camarena-Salazar by drug lords in Guadalajara, Mexico.

The crime spurred Mr. Camarena's comrades in the Drug Enforcement
Administration to launch a global manhunt for his killers. Among their
suspects was Humberto Alvarez-Machain, a physician whom witnesses placed at
the house where Mr. Camarena was kept. DEA officials believed he had
prolonged the agent's suffering by keeping him alive for additional torture
and interrogation.

Unable to secure Mexico's help in arresting Dr. Alvarez, DEA agents, using
several Mexican accomplices, kidnapped him at gunpoint in 1990 and spirited
him across the border to stand trial in Los Angeles federal court. But the
judge directed an acquittal after finding the prosecution case was based
purely on speculation. Released in 1992, Dr. Alvarez returned to Mexico and
filed suit in U.S. District Court against the U.S. government, several DEA
agents and their Mexican accomplices, claiming false arrest and other
wrongs and seeking damages.

Most of the claims, including those against the U.S. government and its
employees, were dismissed. Since Dr. Alvarez had been indicted by a federal
grand jury, the courts found his detention in the U.S. legal. But the court
did find that Dr. Alvarez's claim against Jose Francisco Sosa, a Mexican
who helped in the abduction, was valid. Using the Alien Tort Claims Act, it
ruled that the kidnapping violated international law against arbitrary
detention and awarded Dr. Alvarez $25,000, a decision affirmed by the Ninth
U.S. Circuit Court of Appeals in San Francisco.

Critics say upholding the award could jeopardize aspects of the war on
terrorism. "A U.S. government employee or contractor working in a high-risk
law enforcement, intelligence of military operation could be sued for their
participation," says Mark Rosen, a retired U.S. Navy captain and specialist
in defense and homeland-security issues. For example, if U.S. forces
apprehend a terrorist suspect in Pakistan and fly him to the U.S., the
suspect could bring a lawsuit similar to the one Dr. Alvarez brought, Mr.
Rosen says.

But Dr. Alvarez's lead lawyer, Paul Hoffman of the Center for Justice and
Accountability in San Francisco, says such fears are wildly exaggerated.
"Alien torts have been applied to only a very narrow range of human-rights
issues," he says. "The only reason corporations could have any unease is if
they are engaged in projects [overseas] where fundamental abuses of human
rights are going on."

In his brief in the case, Mr. Hoffman scoffed at the notion that the
Alvarez case could "inhibit the war on terrorism, or inhibit cooperation
between the United States and foreign governments."

Given the bizarre circumstances of the Sosa case, it's possible the Supreme
Court will decline the chance to address the broader implications of the
alien-tort law. Depending on what happens, says Mr. Biel of Human Rights
First, it's likely that either human-rights groups or business lobbyists
will ask Congress to revisit the archaic statute later this year.