1 124 S.Ct. 2739(2004).

2 In 1992, the Supreme Court addressed these issues—also with regard to the abduction of Alvarez—in United States v. Alvarez–Machain, 504 U.S. 655 (1992).

3 28 U.S.C. §1350(2000).

4 630 F.2d 876 (2d Cir. 1980).

5 United States v. Alvarez–Machain, 504 U.S. 655, 670 (1992).

6 According to the Ninth Circuit, “The [district] court concluded that the case against Alvarez was based on ‘suspicion and hunches but... no proof,’ and that the government’s theories were ‘whole cloth, the wildest speculation.’” Alvarez-Machain v. United States, 331 F.3d 604, 610 (9th Cir. 2003) (en banc).

7 28 U.S.C. §§1346(b)(1), 2671–2680 (2000).

8 Since the claims against the DEA agents arose out of acts that the agents were found to have undertaken within the scope of their official duties, the federal district court applied the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the “Westfall Act”), 28 U.S.C. §2679, to substitute the U.S. government as defendant for those claims, which proceeded exclusively under the FTCA (a substitution that was affirmed by the Ninth Circuit, sitting en banc, in Alvarez–Machain v. United States, 331 F.3d at 631–32). The parties later stipulated to a similar substitution in regard to the claims against one of the Mexican operatives (Antonio Garate–Bustamante), but the ATS claims went forward against defendant Sosa.

9 28 U.S.C. §1350.

10 Initially, a three–judge panel of the Ninth Circuit had affirmed the judgment against Sosa and had reversed the dismissal of the FTCA claims. Alvarez–Machain v. United States, 266 F.3d 1045 (9th Cir. 2001).

11 Alvarez-Machain v. United States, 331 F. 3d 604, 610 (9th Cir. 2003) (en banc).

12 Id. at 615–20.

13 Id. at 620–22. On the prevailing theory of the case, Alvarez’s confinement ceased to be unlawful when he arrived within the territorial jurisdiction of the United States, where he was subject to a lawful arrest warrant.

14 Id. at 623.

15 The court reasoned as follows:

16 331F.3dat631.

17 Four dissenting Ninth Circuit judges expressed the view that the DEA had statutory authority to effectuate an extraterritorial arrest. Id. at 656–58. They further opined that, in any event, an arrest based on a duly issued warrant supported by probable cause, even if not lawful in all respects, would not be “arbitrary” and would therefore be actionable under the ATS. Id. at 656. An additional dissenting judge took the position that the case presented a nonjusticiable political question. Id. at 659.

18 Id. at 641.

19 28 U.S.C. §2680(k).

20 331F.3dat638.

21 Id. at 638. The court further held that “[a]lthough the waiver of sovereign immunity under the FTCA excludes intentional torts such as false arrest, this exclusion . . . does not apply if the intentional tort is committed by an ‘investigative or law enforcement officer.’” Id. at 639 (citing 28 U.S.C. §2680(h)).

22 Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004).

23 Id. at 2768 n.24. The Ninth Circuit three–judge panel had held for Alvarez on this point as well. Alvarez-Machain v. United States, 266 F.3d 1045, 1051 (9th Cir. 2001).

24 The 1789 language, which has slightly amended since then, provided that the federal 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.” Act of Sept. 24, 1789, ch. 20, §9(b), 1 Stat. 79, quoted in Sosa, 124 S.Ct. at 2755.

25 Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). This landmark decision ended federal court development and application of its own body of general common law, thereby limiting “federal common law” to subject areas of special federal competence and leaving the remaining matters of common law to the state courts.

26 The Paquete Habana, 175 U.S. 677, 700 (1900)Google Scholar.

27 See T. Aleinikoff, Alexander, International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate, 98 AJIL 91, 92–97 (2004)Google Scholar; Bradley, Curtis A.. & Goldsmith, Jack L.. Customary International Law as Federal Common Law: Critique of the Modern Position, 110 Harv. L. Rev. 815, 831–34, 870 (1997)Google Scholar.

28 Sosa, 124 S.Ct. at 2755.

29 Id.

30 Id.

31 Id. at 2759.

32 Id. at 2761.

33 Id. at 2762.

34 Id. at 2762–63.

35 106 Stat. 73(1991).

36 H.R. Rep. No. 102–367, pt. 1, at 4 (1991), quoted in Sosa, 124 S.Ct. at 2763.

37 Sosa, 124 S.Ct. at 2763.

38 Id. Justice Breyer wrote separately to highlight comity among sovereign states as a consideration limiting the exercise of jurisdiction, lest “ATS litigation . . . undermine the very harmony that it was intended to promote.” 124 S.Ct. at 2782 (Breyer, J., concurring). This point may have been intended to recognize the concerns raised in the amicus brief submitted by die European Commission, asking that international Taw be rigorously applied and that exorbitant exertions of the United States’ jurisdiction to prescribe be avoided. (All of the amicus briefs are available at <http://www.nosafehaven.org/legal.html> .)

39 124 S.Ct. at 2761–62.

40 Id. at 2769.

41 Id. at 2766.

42 Id. at 2769. The Court characterized the customary international law standard urged by Alvarez as too “far from full realization” in the international community to count as more than an “aspiration.” Id. at 2769 & n.29.

43 Id. at 2765–66.

44 Id. at 2774 (Scalia, J., concurring in the judgment).

45 28 U.S.C. §2680(k).

46 Alvarez–Machain v. United States, 331 F. 3d 604, 638 (9th Cir. 2003) (en banc); Nurse v. United States, 226 F.3d 996,1003 (9th Cir. 2000); Couzado v. United States, 105 F.3d 1389,1395–96 (11th Cir. 1997); Sami v. United States, 617 F.2d 755, 761–62 (D.C. Cir. 1979).

47 Sosa, 124 S.Ct. at 2750–54.

48 Id. at 2749 (quoting Beattie v. United States, 756 F.2d 91, 119 (D.C. Cir. 1984) (Scalia, J., dissenting)).

49 Sosa, 124 S.Ct. at 2750.

50 Id. at 2778 (Ginsburg, J., concurring in part).

51 Id. at 2781.

52 Id. at 2775 (Scalia, J., concurring in part).

53 Id. at 2768 n.27 (emphasis added).

54 Id. at 2768.

55 The Ninth Circuit deemed “untenable” the “assumption that Congress... turned a blind eye to the interests of equal sovereigns and the potential violations of international law that would inevitably ensue.” Alvarez–Machain v. United States, 331 F. 3d 604, 629 (9th Cir. 2003) (en banc).

56 Sosa, 124 S.Ct. at 2768 n.24.

57 Alvarez-Machain v. United States, 331 F.3d at 615–20. The three–judge panel had held in Alvarez’s favor on this point. Alvarez-Machain v. United States, 266 F.3d 1045,1051 (9th Cir. 2001) (“Although no international human rights instruments refers to transborder abduction specifically, various established international human rights norms, like the rights to freedom of movement, to remain in one’s country, and to security in one’s person, encompass it.”).

58 Sosa, 124 S.Ct. at 2769.

59 Brief of Amicus Curiae the European Commission in Support of Neither Party at 14–22 (Jan. 23, 2004), Sosa. The brief is available online at <http://www.nosafehaven.org/legal.html>>Google Scholar .

60 Functional immunity (immunity ratione materiae) may preclude personal liability for acts committed pursuant to state authority, even when those acts violate the state’s international legal obligations. See Antonio Cassese, International Criminal Law 266 (2003)Google ScholarPubMed (immunity ratione materiae constitutes a “substantive defence” in international law, available to “any de jure or de facto state agent,” when the “violation is not legally imputable to [the agent] but to his state”). International law nonetheless specifies certain violations as crimes that fall beyond the scope of such immunity. See International Military Tribunal (Nuremberg), Judgment and Sentence (Oct. 1, 1946)Google Scholar, 41 AJIL 172, 221 (1947) (“He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law.”). The current scope of immunity ratione materiae was vigorously debated in recent proceedings in the United Kingdom pertaining to criminal charges against former Chilean Head of State Augusto Pinochet. The House of Lords there held that die coming into force of the Torture Convention, with its grant of universal jurisdiction over official acts of torture, conclusively removed torture from the recognized scope of official authority, and permitted prosecution of acts occurring from that time forward. Regina v. Battle, ex parte Pinochet, [ 1999] 2 All E.R. 97, [ 1999] 2 W.L.R. 827.

61 See Sosa, 124 S.Ct. at 2782 (Breyer, J., concurring).