Today the Supreme Court hears argument in Jesner v. Arab Bank, in which plaintiffs seek to use the so-called Alien Tort Statute (ATS) as the basis to impose liability on Arab Bank, a Jordanian entity, for allegedly giving financial support to Hamas’ terrorist operations in Israel and the Palestinian territories. The ATS provides federal court jurisdiction over “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.” The question is whether this statute applies to the claim against Arab Bank; I joined an amicus brief, authored by Professor Samuel Estreicher (NYU) on behalf of professors of foreign relations law, saying it does not.
Judge Henry Friendly famously wrote that the ATS is “a kind of legal Lohengrin; although it has been with us since the first Judiciary Act [passed in 1789] … no one seems to know whence it came.” His artful aphorism has been cited in many opinions and articles, but it is flatly wrong. We know exactly where the ATS came from.
In the Articles of Confederation period, American leaders feared, with some justification, that state authorities — especially state courts — would not honor obligations the national government owed to foreigners under U.S. treaties and international law (then called the law of nations). These failures, they further feared, would lead to diplomatic problems and perhaps even to war with powerful European nations. These concerns became a central motivation for the constitutional convention of 1787. As James Madison observed, under the Articles the national government could not “prevent those violations of the law of nations & of Treaties which is not prevented must involve us in the calamities of foreign wars.”
The Convention attempted to solve this problem in part by creating federal courts with jurisdiction to hear claims involving foreigners, though the final version of the Constitution left it to Congress to decide whether and how to create federal courts below the Supreme Court. In the 1789 Judiciary Act, Congress did create lower courts, and gave them jurisdiction over claims by aliens, subject to a minimum amount in controversy of $500 (a lot of money in those days). And Congress also provided that federal district courts would have jurisdiction, even for lesser amounts in controversy, for claims made by aliens for torts in violation of treaties of the United States or of the law of nations. (See here for more details). This latter provision is what we now call the ATS.
There should not be the slightest doubt that the ATS responded to the Confederation-era concerns over foreigners not receiving the rights owed to them by the United States under international law. As leading federalists such as Madison, John Jay and Alexander Hamilton all explained, a key point of creating the federal judiciary was to protect the foreign policy of the United States from missteps by the state courts. The central concern was foreign nations becoming angry because the United States could not meet its obligations under international law. The ATS (and the Judiciary Act as a whole) was one of several ways leaders of the national government tried to ensure that it did.
It therefore makes no sense to use the ATS to extend federal court jurisdiction to claims that do not implicate the international law obligations of the United States. Not only would that not redress the problems the ATS was intended to redress, it would create additional foreign policy challenges for the national government by allowing federal courts to intervene in international controversies that do not directly implicate the United States.
In Jesner, for example, the claim is that a Jordanian entity facilitated terrorist activities by a Palestinian entity in Israel and the Palestinian territories. None of the parties is a U.S. citizen or entity, and none of the terrorist activity took place in the United States. The only connection to the United States is that Arab Bank has a branch in New York and some of the payments may have been processed through (though not made at) the New York branch.
International law does not obligate the United States to provide a remedy in this case. Failure to entertain this case in U.S. courts will not raise any of the concerns that motivated the drafters of the ATS. This is simply not the sort of claim the ATS was intended to address, because it does not involve any international obligation of the United States. Federal court intervention in the case will lead to more international difficulties for the U.S., not fewer (Jordan, for example, has filed a brief objecting to U.S. courts’ involvement in the case).
The lower courts decided the case on the ground that international law categorically does not impose obligations on corporations (as opposed to individuals and nations) and therefore Arab Bank cannot be liable for a tort in violation of the law of nations (as the ATS requires). That is the question now before the Supreme Court. It is a question with troubling implications however it is resolved.
A much simpler solution is at hand, The ATS is a tool for the protection of U.S. foreign policy, and in particular a tool to ensure the United States honors its obligations under international law. It should not be sued as a tool to allow U.S. courts to intervene in disputes among foreigners which do not materially implicate the United States. That is the essence of what our amicus brief argues.
I’ll add one further point from an textualist/originalist perspective. The ATS’s text is not limited to the sort of concerns sketched above, so one might ask, on what grounds might it be so limited? The short answer to this is that, as an original matter, Article III of the Constitution, as relevant to Jesner, only gives federal courts jurisdiction over “Controversies … between a state, or the Citizens thereof, and foreign states, Citizens or subjects.” It does not give jurisdiction over disputes entirely among non-U.S. citizens. The early Supreme Court confirmed in two cases, Mossman v. Higginson in 1800 and Hodgson v. Bowerbank in 1809, that federal courts lacked jurisdiction over suits between aliens (unless the suits arose under the U.S. Constitution, laws or treaties, or came within one of the other categories of jurisdiction in Article III, such as admiralty).
Jesner does not involve any substantive federal law, treaty or the Constitution. And it does not involve any U.S. parties. So there should be no Article III federal jurisdiction, and the broad statutory grant of jurisdiction in the ATS should be read to conform to Article III, even if it does not say so in so many words, just as Mossman and Hodgson held for a different part of the Judiciary Act. That is how the statute’s original meaning kept focused on the concerns motivating the ATS: absent a U.S. party, there typically would not be concerns about U.S. obligations under international law.
At least, that is the originalists’ answer. The problem is that the modern Court has held that federal courts can sometimes create “federal common law” that gives federal courts jurisdiction even as to alien-versus-alien claims, and it has further held, or at least implied, that claims under the ATS fall within this category. So Jesner may not be resolvable simply on jurisdictional grounds. Instead, the question becomes whether federal courts ought to create a federal common law claim in the circumstances of a case like Jesner.
Put that way, the question becomes discretionary, not constitutional. But the original concerns motivating the ATS should provide an answer. As originally conceived, the ATS would ordinarily not have provided a remedy for alien-versus-alien claims, and that is consistent with its purpose of providing a remedy for U.S. violations of the law of nations. In considering whether to recognize a federal common law claim in Jesner, the Court should be guided by this basic purpose of the ATS — even though the background law has changed somewhat — and direct federal courts not to involve themselves in a dispute with no material connection to the United States.
That’s the essence of the amicus brief. I’m pleased to join a distinguished group of foreign relations scholars on the brief.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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