Constitutionality of TVPA Challenged in First Circuit

As previously reported at TLB, a Massachusetts jury last year awarded $15.5 million in damages against Jean Morose Viliena for torture and extrajudicial killing under the Torture Victim Protection Act (TVPA). Viliena was mayor of a town in Haiti where the three plaintiffs lived. The jury found him responsible for murdering the brother of one plaintiff and for beating and shooting the other two plaintiffs. Viliena moved to the United States in 2008.

Viliena has appealed the verdict to the First Circuit. His opening brief raises several issues. In this post I focus on just one—his claim that the district court did not have subject matter jurisdiction because Congress lacks constitutional authority to enact the TVPA. (Disclosure: I joined an amicus brief in support of plaintiffs.)

The TVPA

Congress enacted the TVPA in 1992, creating express causes of action against any “individual who, under actual or apparent authority, or color of law, of any foreign nation[,] subjects an individual” to torture or extrajudicial killing. Congress wanted to remove any doubt that aliens could bring civil claims for these human rights violations in U.S. courts. The TVPA also extended the right to bring such claims to U.S. citizens.

Congress passed the TVPA to supplement and strengthen the Alien Tort Statute (ATS), which gives federal courts subject matter 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 Second Circuit held in Filartiga v. Pena-Irala (1980) that the ATS covers claims between two aliens for torture outside the United States. But four years later, Judge Bork’s concurring opinion in Tel-Oren v. Libyan Arab Republic (D.C. Cir. 1984) argued that the ATS’s grant of subject matter jurisdiction was not enough and that aliens could bring no claims under the ATS unless Congress granted an express cause of action. The TVPA responded by creating express causes of action for torture and extrajudicial killing.

Subject Matter Jurisdiction

As Viliena points out (pp. 14-15), the Constitution’s grant of diversity jurisdiction does not extend to controversies between two aliens. But Article III of the Constitution also authorizes federal jurisdiction over cases “arising under … the Laws of the United States.” Congress implemented this head of jurisdiction in 28 U.S.C. § 1331, which similarly gives federal courts jurisdiction over “all civil actions arising under the … laws … of the United States.” Federal question jurisdiction generally exists when plaintiffs sues under federal causes of action, such as those created by the TVPA.

Viliena invokes (p. 13) the Second Circuit’s decision in Kadic v. Karadzic (1995) for the proposition that claims under customary international law fall outside the scope of § 1331. But Kadic involved claims for which there was no statutory cause of action. It may be questionable whether international law claims can be brought under § 1331 in the absence of an express cause of action (the Supreme Court suggested in footnote 19 of Sosa that the answer is no). But there is no question that international law claims can be brought under § 1331 when Congress has enacted an express cause of action for such claims.

The Scope of the TVPA

Viliena’s brief also suggests that plaintiffs’ claims do not fall within the scope of the TVPA for two reasons: (1) because the plaintiffs are aliens; and (2) because the human rights violations occurred abroad. The brief says that the TVPA “was meant to further define specific violations of the Law of Nations and to apply the rights arising under the Alien Tort Statute to United States citizens” and not to cover “claims between citizens of a foreign country for acts which took place in that foreign country” (pp. 7-8). Neither suggestion bears scrutiny.

Claims by Aliens

As the Senate Report accompanying the TVPA explicitly states, the TVPA was intended both to “extend a civil remedy also to U.S. citizens who may have been tortured abroad” and to address Judge Bork’s doubt that the ATS “can be used by victims of torture committed in foreign nations absent an explicit grant of a cause of action by Congress.” Only aliens can bring claims under the ATS, and so a statute intended to address Judge Bork’s doubt and facilitate claims under the ATS must necessarily apply to claims by aliens.

The TVPA’s text confirms this understanding. The act uses the word “individual,” not “national of the United States” as Congress did when it later created an express cause of action for victims of terrorism.

Claims Arising Abroad

The TVPA also clearly applies to claims that arise abroad. The act creates liability only for acts of torture and extrajudicial killing “under actual or apparent authority, or color of law, of any foreign nation.” It should be obvious that such violations typically occur abroad. The TVPA’s legislative history backs this up. “Despite universal condemnation of these abuses,” the Senate Report observes, “many of the world’s governments still engage in or tolerate torture of their citizens, and state authorities have employed extrajudicial killings to execute many people.”

Viliena’s brief goes on at some length about the presumption against extraterritoriality (pp. 16-17), international law limits on prescriptive jurisdiction (pp. 15-16), and international comity (pp. 17-20), but all to no avail. The presumption against extraterritoriality is rebutted when “the statute gives a clear, affirmative indication that it applies extraterritorially,” as the TVPA does when it refers to foreign nations.

The TVPA is also consistent with international law limits on jurisdiction to prescribe—that is, on the authority of countries to make law governing persons and conduct. As the Restatement (Fourth) of Foreign Relations Law notes in § 413, torture and extrajudicial killing are among the “offenses of universal concern” over which states have jurisdiction to prescribe “even if no specific connection exists between the state and the persons or conduct being regulated.” In addition to universal jurisdiction under international law, the TVPA finds support in the Convention Against Torture (CAT), Article 14 of which requires state-parties (of which the United States is one) to redress for victims of torture.

International comity is deference to foreign states that is not required by international law. Many doctrines of U.S. law are manifestations of international comity, including the presumption against extraterritoriality. But when Congress has clearly indicated its intent to reach conduct abroad, as it has in the TVPA, Congress has answered the comity question, and courts may not employ doctrines of international comity to limit the scope of the statute.

The Constitutionality of the TVPA

Finally, Viliena argues (pp. 13-15) that the TVPA is unconstitutional because it lies beyond Congress’s power under the Offenses Clause. Article I, section 8 of the Constitution enumerates Congress’s legislative powers, which include the power “to define and punish … Offences against the Law of Nations.” The Senate Report states that Congress relied on this clause in enacting the TVPA.

The brief asserts: “There is nothing within the clause or its historical antecedents to suggest that it was meant to permit Congress to create forums for the exercise of civil jurisdiction governing events unrelated to the United States” (p. 14). This is incorrect. As Sarah Cleveland and I have noted (p. 2235), Congress’s first exercise of its power under the Offenses Clause was the ATS in 1789, which created a forum for civil claims. As the Supreme Court recognized in Sosa, piracy was one of the violations of the law of nations that the ATS was intended to reach, even though piracy occurred on the high seas, outside the territory of the United States. Congress exercised its Offenses Clause power again the following year in the Crimes Act of 1790, which criminalized piracy.

Another violation that the ATS was intended to reach was infringement of the rights of ambassadors, which could involve two aliens. A 1784 assault by a French citizen on a French diplomat, known as the Marbois Affair, was on the minds of the Framers in 1787 when they drafted the Offenses Clause and of the First Congress in 1789 when it enacted the ATS. The Crimes Act of 1790 criminalized assaults on ambassadors, too.

Viliena’s brief asserts that the Offenses Clause “codified the law of nations as it was known in 1787-1789” and that the Framers considered the law of nations “to be unchanging and immutable” (p. 14). This is also incorrect. As I have discussed at length elsewhere, the Framers understood that the law of nations had changed and would continue to do so. They referred repeatedly to “the modern law of nations.” Moreover, as Sarah and I wrote (p. 2231), “[t]he Offenses Clause was only one piece of the constitutional scheme ensuring that the federal government had sufficient authority to secure the United States’s compliance with its international obligations.” Limiting the Offenses Clause to the law of nations as it existed in 1789 would severely compromise its function.

Certainly, there are limits to what Congress can do under the Offenses Clause. Congress cannot “create new violations of the law of nations out of whole cloth” (p. 2276). But there is no question that torture and extrajudicial killing violate customary international law today. Under the Offenses Clause, the means of punishment that Congress chooses must also be “rationally related” (p. 2279) to the international law rules that it wants to enforce. The creation of civil liability in the TVPA meets that test and, as mentioned above, finds a historical analogue in the ATS.

Conclusion

In the TVPA, Congress created express causes of action for torture and extrajudicial killing. Both the text and history of the act show that it applies to claims between aliens and to claims that arise outside the United States. And the TVPA lies well within Congress’s legislative authority under the Offenses Clause. It seems highly unlikely that the First Circuit will find the TVPA unconstitutional.