09/26/2013 11:56 am ET Updated Nov 26, 2013

224 Years After the Judiciary Act, the U.S. Must Not Become a Safe Haven to Modern Pirates

Two hundred twenty-four years ago this week, George Washington signed the Judiciary Act of 1789 into law, establishing the U.S. federal judiciary and, in a short and largely overlooked provision of the Act, providing what has become a tool for holding human rights abusers accountable centuries later.

The Alien Tort Statute (ATS), all but ignored for almost the first 200 years of its existence, states that federal district courts "shall also have cognizance, ... 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."

What this means is that when foreign citizens suffer harm in violation of the law of nations, and the perpetrator of that harm can be found in the United States, the case will proceed in federal court as opposed to state court. Although there is little legislative history on the issue, scholars of legal history have argued that the ATS was passed both because the Founders were "frustrated by the Articles of Confederation's limited power to address law of nations violations" and were concerned over "ad hoc" approaches to the same among the states.

In recent decades, the ATS has been resurrected to grant federal jurisdiction over cases alleging egregious human rights violation by individual actors and corporations.

In the first of the modern ATS cases, Filartiga v. Peña-Irala, the family of Joelito Filartiga sued Americo Norberto Peña-Irala, who allegedly abducted and tortured 17-year-old Joelito to death. Joelito's sister Dolly later came to the United States and was granted political asylum. When she later learned that Peña was also in the United States, she filed suit under the ATS. The Second Circuit ruled in favor of the Filartigas, finding that "the torturer has become like the pirate and slave trader before him, ... an enemy of all mankind," and as such, jurisdiction existed under the ATS.

Several years later, in Doe v. Unocal, a group of anonymous Burmese plaintiffs brought suit against Unocal alleging human rights abuses associated with the Unocal pipeline project in Burma. Although the case settled, the Court found for the first time that, under the ATS, a federal district court had jurisdiction over allegations of international law violations by a corporation.

The ATS has continued to be used for cases alleging genocide, torture, war crimes, and forced labor, among other international human rights violations since that time.

This year, however, the outcome of cases like Filartiga were put into question when the Supreme Court ruled that presence of the defendant in the United States is not necessarily enough for a federal court to grant jurisdiction over a case involving a foreign plaintiff, foreign defendant, and foreign action. Rather, the actions underlying the abuse must "touch and concern" the United States with "sufficient force." Lower courts are still determining how to apply the Kiobel decision, but have surprisingly dismissed cases with strong connections to the United States. At risk is the United States' interest in not becoming a safe haven for the worst abusers -- the "enemies of all mankind," or "modern pirates," as Justice Breyer put it in his concurring opinion in Kiobel. As courts continue to grapple with the limits of the Kiobel decision, this interest should be kept in mind.