Stephen Satterfield · November 2008
77 GEO. WASH. L. REV. 216 (2008)
This Note identifies the terms and the stakes of the post-Sosa debate about the nature of the ATS and suggests that the most pressing issue regarding the statute’s application is no longer what constitutes a cognizable claim under the ATS but rather who may be amenable to suit under the ATS. Although Sosa did not address the latter issue directly, this Note contends that the Court’s holding regarding the kinds of claims for which the ATS provides jurisdiction compels a broad approach to the question of who is amenable to suit under the ATS. This question is particularly urgent today: although by and large suits under the ATS during the first twenty years of its revival involved foreign defendants, the controversial tactics of the “War on Terror” have led to an increasing number of ATS suits filed against U.S. nationals. These suits bring to the foreground the problem of the ATS’s scope and raise issues about sovereign immunity and the extent to which U.S. nationals should be treated differently from foreign defendants in ATS suits.
In light of the recent challenges to the viability of the ATS, this Note argues that courts interpreting the statute should be guided by the principles underpinning the jurisprudence of 42 U.S.C. § 1983, the Civil Rights Act of 1871, which has become the “dominant civil mechanism for vindicating constitutional rights in America.” The operational similarities between the ATS and § 1983 have been noted by several courts, and the Second Circuit has explicitly turned to certain § 1983 principles in applying the ATS. But this Note proposes moving beyond the current case law and advocates a wholesale grafting of § 1983 doctrine—including its definitions of rights, obligations, and, perhaps most importantly, immunities—onto the ATS. Indeed, this Note calls for nothing less than the reconceptualization of the ATS as a kind of “international § 1983.”
Bringing § 1983 to bear on the ATS is not only consistent with Sosa and the line of ATS cases it endorsed, but is also necessary for the continued legitimacy and viability of the ATS as the basis for human rights litigation in U.S. courts. As this Note shows, the principles underpinning § 1983 provide a framework for construing the scope of the ATS that ensures the equitable administration of the statute— and thus the legitimacy of U.S. courts as arbiters of international law—as well as the continued availability of the ATS as a basis for international human rights claims.
