Sosa v. Alvarez Machain — 542 U.S. 692

692

OCTOBER TERM, 2003

Syllabus Syllabus

SOSA v. ALVAREZ-MACHAIN ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 03-339. Argued March 30, 2004-Decided June 29, 2004* No. 03-339. Argued March 30, 2004—Decided June 29, 2004*

The Drug Enforcement Administration (DEA) approved using petitioner The Drug Enforcement Administration (DEA) approved using petitioner Sosa and other Mexican nationals to abduct respondent Alvarez- Sosa and other Mexican nationals to abduct respondent Alvarez- Machain (Alvarez), also a Mexican national, from Mexico to stand trial Machain (Alvarez), also a Mexican national, from Mexico to stand trial in the United States for a DEA agent's torture and murder. As rele- in the United States for a DEA agent's torture and murder. As rele- vant here, after his acquittal, Alvarez sued the United States for false vant here, after his acquittal, Alvarez sued the United States for false arrest under the Federal Tort Claims Act (FTCA), which waives sover- arrest under the Federal Tort Claims Act (FTCA), which waives sover- eign immunity in suits "for ... personal injury... caused by the negli- eign immunity in suits "for ... personal injury ... caused by the negli- gent or wrongful act or omission of any [Government] employee while gent or wrongful act or omission of any [Government] employee while acting within the scope of his office or employment," 28 U.S. C.

acting within the scope of his office or employment," 28 US. C. § 1346(b)(1); and sued Sosa for violating the law of nations under the § 1346(b)(1); and sued Sosa for violating the law of nations under the Alien Tort Statute (ATS), a 1789 law giving district courts "original Alien Tort Statute (ATS), a 1789 law giving district courts "original jurisdiction of any civil action by an alien for a tort only, committed in jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations . . . ," § 1350. The District Court dis- violation of the law of nations ... ," § 1350. The District Court dis- missed the FTCA claim, but awarded Alvarez summary judgment and missed the FTCA claim, but awarded Alvarez summary judgment and damages on the ATS claim. The Ninth Circuit affirmed the ATS judg- damages on the ATS claim. The Ninth Circuit affirmed the ATS judg- ment, but reversed the FTCA claim's dismissal.

ment, but reversed the FTCA claim's dismissal.

Held:

1. The FTCA's exception to waiver of sovereign immunity for claims

"arising in a foreign country," 28 U. S. C. § 2680(k), bars claims based on "arising in a foreign country," 28 U. S. C. § 2680(k), bars claims based on any injury suffered in a foreign country, regardless of where the tortious any injury suffered in a foreign country, regardless of where the tortious act or omission occurred. Pp. 699-712. act or omission occurred. Pp. 699-712.

(a) The exception on its face seems plainly applicable to the facts (a) The exception on its face seems plainly applicable to the facts of this action. Alvarez's arrest was said to be "false," and thus tortious, of this action. Alvarez's arrest was said to be "false," and thus tortious, only because, and only to the extent that, it took place and endured in only because, and only to the extent that, it took place and endured in Mexico. Nonetheless, the Ninth Circuit allowed the action to proceed Mexico. Nonetheless, the Ninth Circuit allowed the action to proceed under what is known as the "headquarters doctrine," concluding that, under what is known as the "headquarters doctrine," concluding that, because Alvarez's abduction was the direct result of wrongful planning because Alvarez's abduction was the direct result of wrongful planning and direction by DEA agents in California, his claim did not "aris[e] in" and direction by DEA agents in California, his claim did not "aris[e] in" a foreign country. Because it will virtually always be possible to assert a foreign country. Because it will virtually always be possible to assert negligent activity occurring in the United States, such analysis must negligent activity occurring in the United States, such analysis must be viewed with skepticism. Two considerations confirm this Court's be viewed with skepticism. Two considerations confirm this Court's skepticism and lead it to reject the headquarters doctrine. Pp. 700-703.

skepticism and lead it to reject the headquarters doctrine. Pp. 700-703.

*Together with No. 03-485, United States v. Alvarez-Machain et al., *Together with No. 03-485, United States v. Alvarez-Machain et al.,

also on certiorari to the same court. also on certiorari to the same court.

Cite as: 542 U. S. 692 (2004) Cite as: 542 U. S. 692 (2004)

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(b) The first consideration applies to cases like this one, where (b) The first consideration applies to cases like this one, where harm was arguably caused both by action in the foreign country and harm was arguably caused both by action in the foreign country and planning in the United States. Proximate cause is necessary to connect planning in the United States. Proximate cause is necessary to connect the domestic breach of duty with the action in the foreign country, for the domestic breach of duty with the action in the foreign country, for the headquarters' behavior must be sufficiently close to the ultimate the headquarters' behavior must be sufficiently close to the ultimate injury, and sufficiently important in producing it, to make it reasonable injury, and sufficiently important in producing it, to make it reasonable to follow liability back to that behavior. A proximate cause connection to follow liability back to that behavior. A proximate cause connection is not itself sufficient to bar the foreign country exception's application, is not itself sufficient to bar the foreign country exception's application, since a given proximate cause may not be the harm's exclusive proxi- since a given proximate cause may not be the harm's exclusive proxi- mate cause. Here, for example, assuming the DEA officials' direction mate cause. Here, for example, assuming the DEA officials' direction was a proximate cause of the abduction, so were the actions of Sosa was a proximate cause of the abduction, so were the actions of Sosa and others in Mexico. Thus, at most, recognition of additional domestic and others in Mexico. Thus, at most, recognition of additional domestic causation leaves an open question whether the exception applies to Al- causation leaves an open question whether the exception applies to Al- varez's claim. Pp. 703-704.

varez's claim. Pp. 703-704.

(c) The second consideration is rooted in the fact that the harm (c) The second consideration is rooted in the fact that the harm occurred on foreign soil. There is good reason to think that Congress occurred on foreign soil. There is good reason to think that Congress understood a claim "arising in" a foreign country to be a claim for injury understood a claim "arising in" a foreign country to be a claim for injury or harm occurring in that country. This was the common usage of "aris- or harm occurring in that country.

This was the common usage of "aris- ing under" in contemporary state borrowing statutes used to determine ing under" in contemporary state borrowing statutes used to determine which State's limitations statute applied in cases with transjurisdic- which State's limitations statute applied in cases with transjurisdic- tional facts. And such language was interpreted in tort cases in just tional facts. And such language was interpreted in tort cases in just the same way that the Court reads the FTCA today. Moreover, there the same way that the Court reads the FTCA today.

Moreover, there is specific reason to believe that using "arising in" to refer to place of is specific reason to believe that using "arising in" to refer to place of harm was central to the foreign country exception's object. When the harm was central to the foreign country exception's object. When the FTCA was passed, courts generally applied the law of the place where FTCA was passed, courts generally applied the law of the place where the injury occurred in tort cases, which would have been foreign law for the injury occurred in tort cases, which would have been foreign law for a plaintiff injured in a foreign country. However, application of foreign a plaintiff injured in a foreign country.

However, application of foreign substantive law was what Congress intended to avoid by the foreign substantive law was what Congress intended to avoid by the foreign country exception. Applying the headquarters doctrine would thus country exception. Applying the headquarters doctrine would thus have thwarted the exception's object by recasting foreign injury claims have thwarted the exception's object by recasting foreign injury claims as claims not arising in a foreign country because of some domestic as claims not arising in a foreign country because of some domestic planning or negligence. Nor has the headquarters doctrine oultgrown planning or negligence.

Nor has the headquarters doctrine odtgrown its tension with the exception. The traditional approach to choice of its tension with the exception. The traditional approach to choice of substantive tort law has lost favor, but many States still use that analy- substantive tort law has lost favor, but many States still use that analy- sis. And, in at least some cases the Ninth Circuit's approach would sis.

And, in at least some cases the Ninth Circuit's approach would treat as arising at headquarters, even the later methodologies of choice treat as arising at headquarters, even the later methodologies of choice point to the application of foreign law. There is also no merit to an point to the application of foreign law. There is also no merit to an argument that the headquarters doctrine should be permitted when a argument that the headquarters doctrine should be permitted when a State's choice-of-law approach would not apply the foreign law of the State's choice-of-law approach would not apply the foreign law of the place of injury. Congress did not write the exception to apply when place of injury.

Congress did not write the exception to apply when foreign law would be applied. Rather, the exception was written at foreign law would be applied. Rather, the exception was written at a time when "arising in" meant where the harm occurred; and the a time when "arising in" meant where the harm occurred; and the

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odds are that Congress meant simply that when it used the phrase. odds are that Congress meant simply that when it used the phrase.

Pp. 704-712.

2. Alvarez is not entitled to recover damages from Sosa under the

ATS. Pp. 712-738.

(a) The limited, implicit sanction to entertain the handful of inter- (a) The limited, implicit sanction to entertain the handful of inter- national law cum common law claims understood in 1789 is not authority national law cum common law claims understood in 1789 is not authority to recognize the ATS right of action Alvarez asserts here. Contrary to to recognize the ATS right of action Alvarez asserts here. Contrary to Alvarez's claim, the ATS is a jurisdictional statute creating no new Alvarez's claim, the ATS is a jurisdictional statute creating no new causes of action. This does not mean, as Sosa contends, that the ATS causes of action. This does not mean, as Sosa contends, that the ATS was stillborn because any claim for relief required a further statute was stillborn because any claim for relief required a further statute expressly authorizing adoption of causes of action. Rather, the reason- expressly authorizing adoption of causes of action. Rather, the reason- able inference from history and practice is that the ATS was intended able inference from history and practice is that the ATS was intended to have practical effect the moment it became law, on the understanding to have practical effect the moment it became law, on the understanding that the common law would provide a cause of action for the modest that the common law would provide a cause of action for the modest number of international law violations thought to carry personal liability number of international law violations thought to carry personal liability at the time: offenses against ambassadors, violation of safe conducts, and at the time: offenses against ambassadors, violation of safe conducts, and piracy. Sosa's objections to this view are unpersuasive. Pp. 712-724.

piracy. Sosa's objections to this view are unpersuasive. Pp. 712-724. (b) While it is correct to assume that the First Congress under- (b) While it is correct to assume that the First Congress under- stood that district courts would recognize private causes of action for stood that district courts would recognize private causes of action for certain torts in violation of the law of nations and that no development certain torts in violation of the law of nations and that no development of law in the last two centuries has categorically precluded federal of law in the last two centuries has categorically precluded federal courts from recognizing a claim under the law of nations as an element courts from recognizing a claim under the law of nations as an element of common law, there are good reasons for a restrained conception of of common law, there are good reasons for a restrained conception of the discretion a federal court should exercise in considering such a new the discretion a federal court should exercise in considering such a new In deriving a standard for assessing Alvarez's particu- cause of action.

cause of action. In deriving a standard for assessing Alvarez's particu- lar claim, it suffices to look to the historical antecedents, which persuade lar claim, it suffices to look to the historical antecedents, which persuade this Court that federal courts should not recognize claims under federal this Court that federal courts should not recognize claims under federal common law for violations of any international law norm with less defi- common law for violations of any international law norm with less defi- nite content and acceptance among civilized nations than the 18th- nite content and acceptance among civilized nations than the 18th- century paradigms familiar when § 1350 was enacted. Pp. 724-738. century paradigms familiar when § 1350 was enacted. Pp. 724-738.

(i) Several reasons argue for great caution in adapting the law of (i) Several reasons argue for great caution in adapting the law of nations to private rights. First, the prevailing conception of the com- nations to private rights. First, the prevailing conception of the com- mon law has changed since 1790. When § 1350 was enacted, the ac- mon law has changed since 1790. When § 1350 was enacted, the ac- cepted conception was that the common law was found or discovered, cepted conception was that the common law was found or discovered, but now it is understood, in most cases where a court is asked to state or but now it is understood, in most cases where a court is asked to state or formulate a common law principle in a new context, as made or created. formulate a common law principle in a new context, as made or created.

Hence, a judge deciding in reliance on an international norm will find a Hence, a judge deciding in reliance on an international norm will find a substantial element of discretionary judgment in the decision. Second, substantial element of discretionary judgment in the decision. Second, along with, and in part driven by, this conceptual development has come along with, and in part driven by, this conceptual development has come an equally significant rethinking of the federal courts' role in making an equally significant rethinking of the federal courts' role in making In Erie R. Co. v. Tompkins, 304 U. S. 64, 78, this Court common law. common law. In Erie R. Co. v. Tompkins, 304 U. S. 64, 78, this Court denied the existence of any federal "general" common law, which largely denied the existence of any federal "general" common law, which largely withdrew to havens of specialty, with the general practice being to look withdrew to havens of specialty, with the general practice being to look

Cite as: 542 U. S. 692 (2004) Cite as: 542 U. S. 692 (2004)

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for legislative guidance before exercising innovative authority over sub- for legislative guidance before exercising innovative authority over sub- stantive law. Third, a decision to create a private right of action is stantive law. Third, a decision to create a private right of action is better left to legislative judgment in most cases. E. g., Correctional better left to legislative judgment in most cases. E. g., Correctional Services Corp. v. Malesko, 534 U. S. 61, 68. Fourth, the potential impli- Services Corp. v. Malesko, 534 U. S. 61, 68. Fourth, the potential impli- cations for the foreign relations of the United States of recognizing pri- cations for the foreign relations of the United States of recognizing pri- vate causes of action for violating international law should make courts vate causes of action for violating international law should make courts particularly wary of impinging on the discretion of the Legislative and particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs. Fifth, this Court has Executive Branches in managing foreign affairs. Fifth, this Court has no congressional mandate to seek out and define new and debatable no congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively en- understanding of the judicial role in the field have not affirmatively en- couraged greater judicial creativity. Pp. 725-731.

couraged greater judicial creativity. Pp. 725-731.

(ii) The limit on judicial recognition adopted here is fatal to Al- (ii) The limit on judicial recognition adopted here is fatal to Al- varez's claim. Alvarez contends that prohibition of arbitrary arrest has varez's claim. Alvarez contends that prohibition of arbitrary arrest has attained the status of binding customary international law and that his attained the status of binding customary international law and that his arrest was arbitrary because no applicable law authorized it. He thus arrest was arbitrary because no applicable law authorized it. He thus invokes a general prohibition of arbitrary detention defined as officially invokes a general prohibition of arbitrary detention defined as officially sanctioned action exceeding positive authorization to detain under the sanctioned action exceeding positive authorization to detain under the domestic law of some government. However, he cites little authority domestic law of some government. However, he cites little authority that a rule so broad has the status of a binding customary norm today.

that a rule so broad has the status of a binding customary norm today.

He certainly cites nothing to justify the federal courts in taking his He certainly cites nothing to justify the federal courts in taking his rule as the predicate for a federal lawsuit, for its implications would be rule as the predicate for a federal lawsuit, for its implications would be It would create a cause of action for any seizure of an breathtaking. breathtaking. It would create a cause of action for any seizure of an alien in violation of the Fourth Amendment, supplanting the actions alien in violation of the Fourth Amendment, supplanting the actions under 42 U. S. C. § 1983 and Bivens v. Six Unknown Fed. Narcotics under 42 U. S. C. § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, that now provide damages for such violations.

Agents, 403 U. S. 388, that now provide damages for such violations.

And it would create a federal action for arrests by state officers who And it would create a federal action for arrests by state officers who simply exceed their authority under state law. Alvarez's failure to mar- simply exceed their authority under state law. Alvarez's failure to mar- shal support for his rule is underscored by the Restatement (Third) of shal support for his rule is underscored by the Restatement (Third) of Foreign Relations Law of the United States, which refers to prolonged Foreign Relations Law of the United States, which refers to prolonged arbitrary detention, not relatively brief detention in excess of positive arbitrary detention, not relatively brief detention in excess of positive authority. Whatever may be said for his broad principle, it expresses authority. Whatever may be said for his broad principle, it expresses an aspiration exceeding any binding customary rule with the specificity an aspiration exceeding any binding customary rule with the specificity this Court requires. Pp. 731-738.

this Court requires. Pp. 731-738.

331 F. 3d 604, reversed.

SOUTER, J., delivered the opinion of the Court, Parts I and III of which SOUTER, J, delivered the opinion of the Court, Parts I and III of which were unanimous, Part II of which was joined by REHNQUIST, C. J., and were unanimous, Part II of which was joined by REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., and Part IV STEVENS, O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., and Part IV of which was joined by STEVENS, O'CONNOR, KENNEDY, GINSBURG, and of which was joined by STEVENS, O'CONNOR, KENNEDY, GINSBURG, and BREYER, JJ. SCALIA, J., filed an opinion concurring in part and concur- BREYER, JJ. SCALIA, J, filed an opinion concurring in part and concur- ring in the judgment, in which REHNQUIST, C. J., and THOMAS, J., joined, ring in the judgment, in which REHNQUIST, C. J, and THOMAS, J, joined, post, p. 739. GINSBURG, J., filed an opinion concurring in part and concur- post, p. 739. GINSBURG, J, filed an opinion concurring in part and concur-

696 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

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ring in the judgment, in which BREYER, J., joined, post, p. 751. BREYER, ring in the judgment, in which BREYER, J., joined, post, p. 751. BREYER, J., filed an opinion concurring in part and concurring in the judgment, J., filed an opinion concurring in part and concurring in the judgment, post, p. 760. post, p. 760.

Deputy Solicitor General Clement argued the cause for Deputy Solicitor General Clement argued the cause for the United States, as petitioner in No. 03-485, and respond- the United States, as petitioner in No. 03-485, and respond- ent under this Court's Rule 12.6 in support of petitioner in ent under this Court's Rule 12.6 in support of petitioner in No. 03-339. With him on the briefs were Solicitor General No. 03-339. With him on the briefs were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Deputy Olson, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Deputy Assistant Attorney Solicitor General Kneedler, Deputy Assistant Attorney General Katsas, Gregory G. Garre, Jeffrey A. Lamken, General Katsas, Gregory G. Garre, Jeffrey A. Lamken, Douglas N. Letter, Barbara L. Herwig, Robert M. Loeb, and Douglas N. Letter, Barbara L. Herwig, Robert M. Loeb, and William H. Taft IV Carter G. Phillips argued the cause William H. Taft IV. Carter G. Phillips argued the cause for petitioner in No. 03-339. With him on the briefs were for petitioner in No. 03-339. With him on the briefs were Joseph R. Guerra, Marinn F Carlson, Maria T DiGiulian, Joseph R. Guerra, Marinn F. Carlson, Maria T. DiGiulian, Ryan D. Nelson, and Charles S. Leeper.

Ryan D. Nelson, and Charles S. Leeper.

Paul L. Hoffman argued the cause for respondent Paul L. Hoffman argued the cause for respondent Alvarez-Machain in both cases. With him on the brief were Alvarez-Machain in both cases. With him on the brief were Erwin Chemerinsky, Ralph G. Steinhardt, Mark D. Rosen- Erwin Chemerinsky, Ralph G. Steinhardt, Mark D. Rosen- baum, Steven R. Shapiro, Douglas E. Mirel, and W Allan baum, Steven R. Shapiro, Douglas E. Mirell, and W. Allan Edmiston.t Edmiston.t

tBriefs of amici curiae urging reversal in No. 03-339 were filed for tBriefs of amici curiae urging reversal in No. 03-339 were filed for the National Association of Manufacturers by Paul R. Friedman, John the National Association of Manufacturers by Paul R. Friedman, John Townsend Rich, William F Sheehan, Jan S. Amundson, and Quentin Townsend Rich, William F. Sheehan, Jan S. Amundson, and Quentin Riegel; for the National Foreign Trade Council et al. by Daniel M. Petro- Riegel; for the National Foreign Trade Council et al. by Daniel M. Petro- celli, M. Randall Oppenheimer, Walter E. Dellinger III, Pamela A. Har- celli, M. Randall Oppenheimer, Walter E. Dellinger III, Pamela A. Har- ris, and Robin S. Conrad; for the Pacific Legal Foundation by Anthony T ris, and Robin S. Conrad, for the Pacific Legal Foundation by Anthony T.

Caso; for the Washington Legal Foundation et al. by Donald B. Ayer, Caso; for the Washington Legal Foundation et al. by Donald B. Ayer, Christian G. Vergonis, Daniel J Popeo, and Richard A Samp; and for Christian G. Vergonis, Daniel J. Popeo, and Richard A. Samp; and for Samuel Estreicher et al. by Paul B. Stephan and Mr. Estreicher, pro se.

Samuel Estreicher et al. by Paul B. Stephan and Mr. Estreicher, pro se.

Briefs of amici curiae urging affirmance in No. 03-339 were filed for Briefs of amici curiae urging affirmance in No. 03-339 were filed for Alien Friends Representing Hungarian Jews and Bougainvilleans Inter- Alien Friends Representing Hungarian Jews and Bougainvilleans Inter- ests by Steve W Berman, R. Brent Walton, Jonathan W Cuneo, David ests by Steve W. Berman, R. Brent Walton, Jonathan W. Cuneo, David

W. Stanley, Michael Waldman, and Samuel J. Dubbin; for Amnesty Inter-

national et al. by Beth Stephens; for the Center for Justice and Account- national et al. by Beth Stephens; for the Center for Justice and Account- ability et al. by Laurel E. Fletcher, Peter Weiss, and Jennifer Green; for ability et al. by Laurel E. Fletcher, Peter Weiss, and Jennifer Green; for the Center for Women Policy Studies et al. by Rhonda Copelon; for the the Center for Women Policy Studies et al. by Rhonda Copelon; for the Presbyterian Church of Sudan et al. by Carey R. D'Avino, Stephen A.

Presbyterian Church of Sudan et al. by Carey R. D'Avino, Stephen A.

Whinston, and Lawrence Kill; for the World Jewish Congress et al. by Whinston, and Lawrence Kill; for the World Jewish Congress et al. by

Cite as: 542 U. S. 692 (2004) Cite as: 542 U. S. 692 (2004)

697

Opinion of the Court Opinion of the Court

JUSTICE SOUTER delivered the opinion of the Court.

The two issues are whether respondent Alvarez-Machain's The two issues are whether respondent Alvarez-Machain's allegation that the Drug Enforcement Administration insti- allegation that the Drug Enforcement Administration insti- gated his abduction from Mexico for criminal trial in the gated his abduction from Mexico for criminal trial in the United States supports a claim against the Government United States supports a claim against the Government under the Federal Tort Claims Act (FTCA or Act), 28 under the Federal Tort Claims Act (FTCA or Act), 28

U. S. C. §§ 1346(b)(1), 2671-2680, and whether he may recover

under the Alien Tort Statute (ATS), 28 U. S. C. § 1350. We under the Alien Tort Statute (ATS), 28 U. S. C. § 1350. We hold that he is not entitled to a remedy under either statute. hold that he is not entitled to a remedy under either statute.

I

We have considered the underlying facts before, United We have considered the underlying facts before, United States v. Alvarez-Machain, 504 U. S. 655 (1992).

In 1985, States v. Alvarez-Machain, 504 U. S. 655 (1992). In 1985, an agent of the Drug Enforcement Administration (DEA), an agent of the Drug Enforcement Administration (DEA), Enrique Camarena-Salazar, was captured on assignment in Enrique Camarena-Salazar, was captured on assignment in Mexico and taken to a house in Guadalajara, where he was Mexico and taken to a house in Guadalajara, where he was tortured over the course of a 2-day interrogation, then mur- tortured over the course of a 2-day interrogation, then mur- dered. Based in part on eyewitness testimony, DEA offi- dered. Based in part on eyewitness testimony, DEA offi- cials in the United States came to believe that respondent cials in the United States came to believe that respondent Humberto Alvarez-Machain (Alvarez), a Mexican physician, Humberto Alvarez-Machain (Alvarez), a Mexican physician, was present at the house and acted to prolong the agent's was present at the house and acted to prolong the agent's life in order to extend the interrogation and torture. Id., life in order to extend the interrogation and torture. Id., at 657.

at 657.

In 1990, a federal grand jury indicted Alvarez for the tor- In 1990, a federal grand jury indicted Alvarez for the tor- ture and murder of Camarena-Salazar, and the United States ture and murder of Camarena-Salazar, and the United States District Court for the Central District of California issued a District Court for the Central District of California issued a

Bill Lann Lee, Stanley M. Chesley, Paul De Marco, Burt Neuborne, and Bill Lann Lee, Stanley M. Chesley, Paul De Marco, Burt Neuborne, and Michael D. Hausfeld; for Wendy A. Adams et al. by William J Aceves Michael D. Hausfeld; for Wendy A. Adams et al. by William J. Aceves and David S. Weissbrodt; and for Mary Robinson et al. by Harold Hongju and David S. Weissbrodt; and for Mary Robinson et al. by Harold Hongju Koh, John M. Townsend, and William R. Stein.

Koh, John M. Townsend, and William R. Stein.

Briefs of amici curiae were filed in No. 03-339 for the Government of Briefs of amici curiae were filed in No. 03-339 for the Government of the Commonwealth of Australia et al. by Donald L Baker and W Todd the Commonwealth of Australia et al. by Donald L Baker and W. Todd Miller; for the International Labor Rights Fund et al. by Terrence P Col- Miller, for the International Labor Rights Fund et al. by Terrence P. Col- lingsworth and Natacha Thys; for the European Commission by Jeffrey P. lingsworth and Natacha Thys; for the European Commission by Jeffrey P.

Cunard; for James Akins et al. by Thomas E. Bishop; for Vikram Amar Cunard; for James Akins et al. by Thomas E. Bishop; for Vikram Amar et al. by Nicholas W. van Aelstyn; and for Barry Amundsen et al. by et al. by Nicholas W. van Aelstyn; and for Barry Amundsen et al. by Penny M. Venetis.

Penny M. Venetic.

698 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

Opinion of the Court Opinion of the Court

warrant for his arrest. 331 F. 3d 604, 609 (CA9 2003) (en warrant for his arrest. 331 F. 3d 604, 609 (CA9 2003) (en banc). The DEA asked the Mexican Government for help banc). The DEA asked the Mexican Government for help in getting Alvarez into the United States, but when the re- in getting Alvarez into the United States, but when the re- quests and negotiations proved fruitless, the DEA approved quests and negotiations proved fruitless, the DEA approved a plan to hire Mexican nationals to seize Alvarez and bring a plan to hire Mexican nationals to seize Alvarez and bring him to the United States for trial. As so planned, a group of him to the United States for trial. As so planned, a group of Mexicans, including petitioner Jose Francisco Sosa, abducted Mexicans, including petitioner Jose Francisco Sosa, abducted Alvarez from his house, held him overnight in a motel, and Alvarez from his house, held him overnight in a motel, and brought him by private plane to El Paso, Texas, where he brought him by private plane to El Paso, Texas, where he Ibid.

was arrested by federal officers. was arrested by federal officers. Ibid.

Once in American custody, Alvarez moved to dismiss the Once in American custody, Alvarez moved to dismiss the indictment on the ground that his seizure was "outrageous indictment on the ground that his seizure was "outrageous governmental conduct," Alvarez-Machain, 504 U. S., at 658, governmental conduct," Alvarez-Machain, 504 U. S., at 658, and violated the extradition treaty between the United and violated the extradition treaty between the United States and Mexico. The District Court agreed, the Ninth States and Mexico. The District Court agreed, the Ninth Circuit affirmed, and we reversed, id., at 670, holding that Circuit affirmed, and we reversed, id., at 670, holding that the fact of Alvarez's forcible seizure did not affect the juris- the fact of Alvarez's forcible seizure did not affect the juris- diction of a federal court. The case was tried in 1992, and diction of a federal court. The case was tried in 1992, and ended at the close of the Government's case, when the Dis- ended at the close of the Government's case, when the Dis- trict Court granted Alvarez's motion for a judgment of trict Court granted Alvarez's motion for a judgment of acquittal.

acquittal.

In 1993, after returning to Mexico, Alvarez began the civil In 1993, after returning to Mexico, Alvarez began the civil action before us here. He sued Sosa, Mexican citizen and action before us here. He sued Sosa, Mexican citizen and DEA operative Antonio Garate-Bustamante, five unnamed DEA operative Antonio Garate-Bustamante, five unnamed Mexican civilians, the United States, and four DEA agents.

Mexican civilians, the United States, and four DEA agents.

331 F. 3d, at 610. So far as it matters here, Alvarez sought 331 F. 3d, at 610. So far as it matters here, Alvarez sought damages from the United States under the FTCA, alleging damages from the United States under the FTCA, alleging false arrest, and from Sosa under the ATS, for a violation of false arrest, and from Sosa under the ATS, for a violation of the law of nations. The former statute authorizes suit the law of nations. The former statute authorizes suit "for... personal injury.., caused by the negligent or wrong- "for ... personal injury ... caused by the negligent or wrong- ful act or omission of any employee of the Government while ful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 acting within the scope of his office or employment." 28

U. S. C. § 1346(b)(1). The latter provides in its entirety that

"[tihe district courts shall have original jurisdiction of any "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation civil action by an alien for a tort only, committed in violation

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of the law of nations or a treaty of the United States." of the law of nations or a treaty of the United States." § 1350. § 1350.

The District Court granted the Government's motion to The District Court granted the Government's motion to dismiss the FTCA claim, but awarded summary judgment dismiss the FTCA claim, but awarded summary judgment and $25,000 in damages to Alvarez on the ATS claim. A and $25,000 in damages to Alvarez on the ATS claim. A three-judge panel of the Ninth Circuit then affirmed the ATS three judge panel of the Ninth Circuit then affirmed the ATS judgment, but reversed the dismissal of the FTCA claim. judgment, but reversed the dismissal of the FTCA claim.

266 F. 3d 1045 (2001).

A divided en banc court came to the same conclusion. 331 A divided en banc court came to the same conclusion. 331

F. 3d, at 641. As for the ATS claim, the court called on its

own precedent, "that [the ATS] not only provides federal own precedent, "that [the ATS] not only provides federal courts with subject matter jurisdiction, but also creates a courts with subject matter jurisdiction, but also creates a cause of action for an alleged violation of the law of nations." cause of action for an alleged violation of the law of nations."

Id., at 612. The Circuit then relied upon what it called the Id., at 612. The Circuit then relied upon what it called the "clear and universally recognized norm prohibiting arbitrary "clear and universally recognized norm prohibiting arbitrary arrest and detention," id., at 620, to support the conclusion arrest and detention," id., at 620, to support the conclusion that Alvarez's arrest amounted to a tort in violation of inter- that Alvarez's arrest amounted to a tort in violation of inter- national law. On the FTCA claim, the Ninth Circuit held national law. On the FTCA claim, the Ninth Circuit held that, because "the DEA had no authority to effect Alvarez's that, because "the DEA had no authority to effect Alvarez's arrest and detention in Mexico," id., at 608, the United arrest and detention in Mexico," id., at 608, the United States was liable to him under California law for the tort of States was liable to him under California law for the tort of false arrest, id., at 640-641.

false arrest, id., at 640-641.

We granted certiorari in these companion cases to clarify We granted certiorari in these companion cases to clarify the scope of both the FTCA and the ATS. 540 U. S. 1045 the scope of both the FTCA and the ATS. 540 U. S. 1045 (2003). We now reverse in each.

(2003). We now reverse in each.

H

The Government seeks reversal of the judgment of liabil- The Government seeks reversal of the judgment of liabil- ity under the FTCA on two principal grounds.

It argues ity under the FTCA on two principal grounds. It argues that the arrest could not have been tortious, because it was that the arrest could not have been tortious, because it was authorized by 21 U. S. C. § 878, setting out the arrest author- authorized by 21 U. S. C. § 878, setting out the arrest author- ity of the DEA, and it says that in any event the liability ity of the DEA, and it says that in any event the liability asserted here falls within the FTCA exception to waiver of asserted here falls within the FTCA exception to waiver of sovereign immunity for claims "arising in a foreign country," sovereign immunity for claims "arising in a foreign country," 28 U. S. C. § 2680(k). We think the exception applies and de- 28 U. S. C. § 2680(k). We think the exception applies and de- cide on that ground. cide on that ground.

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A

The FTCA "was designed primarily to remove the sover- The FTCA "was designed primarily to remove the sover- eign immunity of the United States from suits in tort and, eign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government with certain specific exceptions, to render the Government liable in tort as a private individual would be under like cir- liable in tort as a private individual would be under like cir- cumstances." Richards v. United States, 369 U. S. 1, 6 cumstances." Richards v. United States, 369 U. S. 1, 6 (1962); see also 28 U. S. C. § 2674. The Act accordingly gives (1962); see also 28 U. S. C. § 2674. The Act accordingly gives federal district courts jurisdiction over claims against the federal district courts jurisdiction over claims against the United States for injury "caused by the negligent or wrong- United States for injury "caused by the negligent or wrong- ful act or omission of any employee of the Government while ful act or omission of any employee of the Government while acting within the scope of his office or employment, under acting within the scope of his office or employment, under circumstances where the United States, if a private person, circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of would be liable to the claimant in accordance with the law of the place where the act or omission occurred." § 1346(b)(1).

the place where the act or omission occurred." § 1346(b)(1).

But the Act also limits its waiver of sovereign immunity in But the Act also limits its waiver of sovereign immunity in a number of ways. See § 2680 (no waiver as to, e. g., "[any a number of ways. See § 2680 (no waiver as to, e. g., "[a]ny claim arising out of the loss, miscarriage, or negligent trans- claim arising out of the loss, miscarriage, or negligent trans- mission of letters or postal matter," "[a]ny claim for damages mission of letters or postal matter," "[a]ny claim for damages caused by the imposition or establishment of a quarantine by caused by the imposition or establishment of a quarantine by the United States," or "[a]ny claim arising from the activities the United States," or "[a]ny claim arising from the activities of the Panama Canal Company"). of the Panama Canal Company").

Here the significant limitation on the waiver of immunity Here the significant limitation on the waiver of immunity is the Act's exception for "[a]ny claim arising in a foreign is the Act's exception for "[a]ny claim arising in a foreign country," § 2680(k), a provision that on its face seems plainly country," § 2680(k), a provision that on its face seems plainly applicable to the facts of this action.

In the Ninth Circuit's applicable to the facts of this action. In the Ninth Circuit's view, once Alvarez was within the borders of the United view, once Alvarez was within the borders of the United States, his detention was not tortious, see 331 F. 3d, at 636- States, his detention was not tortious, see 331 F. 3d, at 636- 637; the appellate court suggested that the Government's lia- 637; the appellate court suggested that the Government's lia- bility to Alvarez rested solely upon a false arrest claim.

Id., bility to Alvarez rested solely upon a false arrest claim. Id., to be at 640-641. Alvarez's arrest, however, was said at 640-641. Alvarez's arrest, however, was said to be "false," and thus tortious, only because, and only to the ex- "false," and thus tortious, only because, and only to the ex- tent that, it took place and endured in Mexico.1 The actions tent that, it took place and endured in Mexico.' The actions

I In the Ninth Circuit's view, it was critical that "DEA agents had no ' In the Ninth Circuit's view, it was critical that "DEA agents had no authority under federal law to execute an extraterritorial arrest of a sus- authority under federal law to execute an extraterritorial arrest of a sus- pect indicted in federal court in Los Angeles." 331 F. 3d, at 640. Once pect indicted in federal court in Los Angeles." 331 F. 3d, at 640. Once Alvarez arrived in the United States, "the actions of domestic law enforce- Alvarez arrived in the United States, "the actions of domestic law enforce-

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in Mexico are thus most naturally understood as the kernel in Mexico are thus most naturally understood as the kernel of a "claim arising in a foreign country," and barred from suit of a "claim arising in a foreign country," and barred from suit under the exception to the waiver of immunity. under the exception to the waiver of immunity.

Notwithstanding the straightforward language of the for- Notwithstanding the straightforward language of the for- eign country exception, the Ninth Circuit allowed the action eign country exception, the Ninth Circuit allowed the action to proceed under what has come to be known as the "head- to proceed under what has come to be known as the "head- quarters doctrine." Some Courts of Appeals, reasoning that quarters doctrine." Some Courts of Appeals, reasoning that "[t]he entire scheme of the FTCA focuses on the place where " [t]h6 entire scheme of the FTCA focuses on the place where the negligent or wrongful act or omission of the government the negligent -or wrongful act or omission of the government employee occurred," Sami v. United States, 617 F. 2d 755, employee occurred," Sami v. United States, 617 F. 2d 755, 761 (CADC 1979), have concluded that the foreign country 761 (CADC 1979), have concluded that the foreign country exception does not exempt the United States from suit "for exception does not exempt the United States from suit "for acts or omissions occurring here which have their operative acts or omissions occurring here which have their operative effect in another country," id., at 762 (refusing to apply effect in another country," id., at 762 (refusing to apply § 2680(k) where a communique sent from the United States § 2680(k) where a communique sent from the United States by a federal law enforcement officer resulted in plaintiff's by a federal law enforcement officer resulted in plaintiff's in Germany).2 Headquarters claims wrongful detention wrongful detention in Germany).2 Headquarters claims "typically involve allegations of negligent guidance in an of- "typically involve allegations of negligent guidance in an of- fice within the United States of employees who cause dam- fice within the United States of employees who cause dam- age while in a foreign country, or of activities which take age while in a foreign country, or of activities which take place within a foreign country." Cominotto v. United place within a foreign country." Cominotto v. United States, 802 F. 2d 1127, 1130 (CA9 1986).

In such instances, States, 802 F. 2d 1127, 1130 (CA9 1986). In such instances, these courts have concluded that § 2680(k) does not bar suit. these courts have concluded that §2680(k) does not bar suit.

ment set in motion a supervening prosecutorial mechanism which met all ment set in motion a supervening prosecutorial mechanism which met all of the procedural requisites of federal due process."

Id., at 637. of the procedural requisites of federal due process." Id., at 637.

2 See also Couzado v. United States, 105 F. 3d 1389, 1395 (CA11 1997) 2 See also Couzado v. United States, 105 F. 3d 1389, 1395 (CA11 1997) ("'[A] claim is not barred by section 2680(k) where the tortious conduct ("'[A] claim is not barred by section 2680(k) where the tortious conduct occurs in the United States, but the injury is sustained in a foreign coun- occurs in the United States, but the injury is sustained in a foreign coun- try"' (quoting Donahue v. United States Dept. of Justice, 751 F. Supp. 45, try"' (quoting Donahue v. United States Dept. of Justice, 751 F Supp. 45, 48 (SDNY 1990))); Martinez v. Lamagno, No. 93-1573, 1994 WL 159771, 48 (SDNY 1990))); Martinez v. Lamagno, No. 93-1573, 1994 WL 159771, *2, judgt. order reported at 23 F. 3d 402 (CA4 1994) (per curiam) (unpub- *2, judgt. order reported at 23 F. 3d 402 (CA41994) (per curiam) (unpub- lished opinion) ("A headquarters claim exists where negligent acts in the lished opinion) ("A headquarters claim exists where negligent acts in the United States proximately cause harm in a foreign country"), rev'd on United States proximately cause harm in a foreign country"), rev'd on other grounds, 515 U. S. 417 (1995); Leaf v. United States, 588 F. 2d 733, other grounds, 515 U. S. 417 (1995); Leaf v. United States, 588 F. 2d 733, 736 (CA9 1978) ("A claim 'arises', as that term is used in . . .2680(k), 736 (CA9 1978) ("A claim `arises', as that term is used in ... 26ß0(k), where the acts or omissions that proximately cause the loss take place"); where the acts or omissions that proximately cause the loss take place"); cf. Eaglin v. United States, Dept. of Army, 794 F. 2d 981, 983 (CA5 1986) cf. Eaglin v. United States, Dept. of Army, 794 F. 2d 981, 983 (CA5 1986) (assuming, arguendo, that headquarters doctrine is valid).

(assuming, arquendo, that headquarters doctrine is valid).

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The reasoning of the Ninth Circuit here was that, since The reasoning of the Ninth Circuit here was that, since Alvarez's abduction in Mexico was the direct result of wrong- Alvarez's abduction in Mexico was the direct result of wrong- ful acts of planning and direction by DEA agents located in ful acts of planning and direction by DEA agents located in California, "Alvarez's abduction fits the headquarters doc- California, "Alvarez's abduction fits the headquarters doc- trine like a glove." 331 F. 3d, at 638. trine like a glove." 331 F. 3d, at 638.

"Working out of DEA offices in Los Angeles, [DEA "Working out of DEA offices in Los Angeles, [DEA agents] made the decision to kidnap Alvarez and ... agents] made the decision to kidnap Alvarez and ... gave [their Mexican intermediary] precise instructions gave [their Mexican intermediary] precise instructions on whom to recruit, how to seize Alvarez, and how he on whom to recruit, how to seize Alvarez, and how he should be treated during the trip to the United States. should be treated during the trip to the United States.

DEA officials in Washington, D. C., approved the details DEA officials in Washington, D. C., approved the details of the operation. After Alvarez was abducted accord- of the operation. After Alvarez was abducted accord- ing to plan, DEA agents supervised his transportation ing to plan, DEA agents supervised his transportation into the United States, telling the arrest team where to into the United States, telling the arrest team where to land the plane and obtaining clearance in El Paso for land the plane and obtaining clearance in El Paso for landing. The United States, and California in particu- landing. The United States, and California in particu- lar, served as command central for the operation carried lar, served as command central for the operation carried Id., at 638-639. out in Mexico." out in Mexico." Id., at 638-639.

Thus, the Ninth Circuit held that Alvarez's claim did not Thus, the Ninth Circuit held that Alvarez's claim did not "aris[e] in" a foreign country. "aris[e] in" a foreign country.

The potential effect of this sort of headquarters analysis The potential effect of this sort of headquarters analysis flashes the yellow caution light. "[I]t will virtually always flashes the yellow caution light. "[I]t will virtually always be possible to assert that the negligent activity that injured be possible to assert that the negligent activity that injured the plaintiff [abroad] was the consequence of faulty training, the plaintiff [abroad] was the consequence of faulty training, selection or supervision-or even less than that, lack of care- selection or supervision—or even less than that, lack of care- ful training, selection or supervision-in the United States." ful training, selection or supervision—in the United States."

Beattie v. United States, 756 F. 2d 91, 119 (CADC 1984) Beattie v. United States, 756 F. 2d 91, 119 (CADC 1984) (Scalia, J., dissenting). Legal malpractice claims, Knisley v.

(Scalia, J., dissenting). Legal malpractice claims, Knisley v.

United States, 817 F. Supp. 680, 691-693 (SD Ohio 1993), alle- United States, 817 F. Supp. 680, 691-693 (SD Ohio 1993), alle- gations of negligent medical care, Newborn v. United States, gations of negligent medical care, Newborn v. United States, 238 F. Supp. 2d 145, 148-149 (DC 2002), and even slip-and-fall 238 F. Supp. 2d 145,148-149 (DC 2002), and even slip-and-fall cases, Eaglin v. United States, Dept. of Army, 794 F. 2d 981, cases, Eaglin v. United States, Dept. of Army, 794 F. 2d 981, 983-984 (CA5 1986), can all be repackaged as headquarters 983-984 (CA5 1986), can all be repackaged as headquarters claims based on a failure to train, a failure to warn, the offer- claims based on a failure to train, a failure to warn, the offer- If ing of bad advice, or the adoption of a negligent policy. ing of bad advice, or the adoption of a negligent policy. If

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we were to approve the headquarters exception to the for- we were to approve the headquarters exception to the for- eign country exception, the "'headquarters claim' [would] eign country exception, the "`headquarters claim' [would] become a standard part of FTCA litigation" in cases poten- become a standard part of FTCA litigation" in cases poten- tially implicating the foreign country exception. Beattie, tially implicating the foreign country exception. Beattie, supra, at 119 (Scalia, J., dissenting). The headquarters doc- supra, at 119 (Scalia, J., dissenting). The headquarters doc- trine threatens to swallow the foreign country exception trine threatens to swallow the foreign country exception whole, certainly at the pleadings stage. whole, certainly at the pleadings stage.

The need for skepticism is borne out by two considera- The need for skepticism is borne out by two considera- tions. One of them is pertinent to cases like this one, where tions. One of them is pertinent to cases like this one, where harm was arguably caused both by individual action in a for- harm was arguably caused both by individual action in a for- eign country as well as by planning in the United States; eign country as well as by planning in the United States; the other is suggested simply because the harm occurred on the other is suggested simply because the harm occurred on foreign soil. foreign soil.

B

Although not every headquarters case is rested on an ex- Although not every headquarters case is rested on an ex- plicit analysis of proximate causation, this notion of cause is plicit analysis of proximate causation, this notion of cause is necessary to connect the domestic breach of duty (at head- necessary to connect the domestic breach of duty (at head- quarters) with the action in the foreign country (in a case quarters) with the action in the foreign country (in a case like this) producing the foreign harm or injury. It is neces- like this) producing the foreign harm or injury. It is neces- sary, in other words, to conclude that the act or omission at sary, in other words, to conclude that the act or omission at home headquarters was sufficiently close to the ultimate in- home headquarters was sufficiently close to the ultimate in- jury, and sufficiently important in producing it, to make it jury, and sufficiently important in producing it, to make it reasonable to follow liability back to the headquarters behav- reasonable to follow liability back to the headquarters behav- ior. Only in this way could the behavior at headquarters ior. Only in this way could the behavior at headquarters properly be seen as the act or omission on which all FTCA properly be seen as the act or omission on which all FTCA liability must rest under §2675. See, e. g., Cominotto, liability must rest under §2675. See, e. g., Cominotto, supra, at 1130 ("[A] headquarters claim exists where negli- supra, at 1130 ("[A] headquarters claim exists where negli- gent acts in the United States proximately cause harm in a gent acts in the United States proximately cause harm in a foreign country"); Eaglin, supra, at 983 (noting that head- foreign country"); Eaglin, supra, at 983 (noting that head- quarters cases require "a plausible proximate nexus or con- quarters cases require "a plausible proximate nexus or con- nection between acts or omissions in the United States and nection between acts or omissions in the United States and the resulting damage or injury in a foreign country").

the resulting damage or injury in a foreign country").

Recognizing this connection of proximate cause between Recognizing this connection of proximate cause between domestic behavior and foreign harm or injury is not, how- domestic behavior and foreign harm or injury is not, how- ever, sufficient of itself to bar application of the foreign coun- ever, sufficient of itself to bar application of the foreign coun- try exception to a claim resting on that same foreign conse- try exception to a claim resting on that same foreign conse-

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quence. Proximate cause is causation substantial enough quence. Proximate cause is causation substantial enough and close enough to the harm to be recognized by law, but a and close enough to the harm to be recognized by law, but a given proximate cause need not be, and frequently is not, the given proximate cause need not be, and frequently is not, the exclusive proximate cause of harm. See, e. g., 57A Am. Jur. exclusive proximate cause of harm. See, e. g., 57A Am. Jur.

2d § 529 (2004) (discussing proper jury instructions in cases 2d § 529 (2004) (discussing proper jury instructions in cases involving multiple proximate causes); Beattie, supra, at 121 involving multiple proximate causes); Beattie, supra, at 121 (Scalia, J., dissenting) ("[I]n the ordinary case there may be (Scalia, J., dissenting) ("[I]n the ordinary case there may be several points along the chain of causality" pertinent to the several points along the chain of causality" pertinent to the enquiry). Here, for example, assuming that the direction by enquiry). Here, for example, assuming that the direction by DEA officials in California was a proximate cause of the ab- DEA officials in California was a proximate cause of the ab- duction, the actions of Sosa and others in Mexico were just duction, the actions of Sosa and others in Mexico were just as surely proximate causes, as well. Thus, understanding as surely proximate causes, as well. Thus, understanding that California planning was a legal cause of the harm in no that California planning was a legal cause of the harm in no way eliminates the conclusion that the claim here arose from way eliminates the conclusion that the claim here arose from harm proximately caused by acts in Mexico. At most, recog- harm proximately caused by acts in Mexico. At most, recog- nition of additional domestic causation under the headquar- nition of additional domestic causation under the headquar- ters doctrine leaves an open question whether the exception ters doctrine leaves an open question whether the exception applies to the claim.

applies to the claim.

C

Not only does domestic proximate causation under the Not only does domestic proximate causation under the headquarters doctrine fail to eliminate application of the for- headquarters doctrine fail to eliminate application of the for- eign country exception, but there is good reason to think that eign country exception, but there is good reason to think that Congress understood a claim "arising in" a foreign country in Congress understood a claim "arising in" a foreign country in such a way as to bar application of the headquarters doc- such a way as to bar application of the headquarters doc- trine. There is good reason, that is, to conclude that Con- trine. There is good reason, that is, to conclude that Con- gress understood a claim "arising in a foreign country" to be gress understood a claim "arising in a foreign country" to be a claim for injury or harm occurring in a foreign country.

a claim for injury or harm occurring in a foreign country.

28 U. S. C. § 2680(k). This sense of "arising in" was the com- 28 U. S. C. § 2680(k). This sense of "arising in" was the com- mon usage in state borrowing statutes contemporary with mon usage in state borrowing statutes contemporary with the Act, which operated to determine which State's statute the Act, which operated to determine which State's statute of limitations should apply in cases involving transjurisdic- of limitations should apply in cases involving transjurisdic- tional facts. When the FTCA was passed, the general rule, tional facts. When the FTCA was passed, the general rule, as set out ' in various state statutes, was that "a cause of as set out ' in various state statutes, was that "a cause of action arising in another jurisdiction, which is barred by the action arising in another jurisdiction, which is barred by the laws of that jurisdiction, will [also] be barred in the domestic laws of that jurisdiction, will [also] be barred in the domestic courts."

41 A. L. R. 4th 1025, 1029, § 2 (1985). These bor- courts." 41 A. L. R. 4th 1025, 1029, § 2 (1985). These bor-

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rowing statutes were typically restricted by express terms rowing statutes were typically restricted by express terms to situations where a cause of action was time barred in the to situations where a cause of action was time barred in the State "where [the] cause of action arose, or accrued, or orig- State "where [the] cause of action arose, or accrued, or orig- inated." 75 A. L. R. 203, 211 (1931) (emphasis in original). inated." 75 A. L. R. 203, 211 (1931) (emphasis in original).

Critically for present purposes, these variations on the Critically for present purposes, these variations on the theme of "arising in" were interpreted in tort cases in just theme of "arising in" were interpreted in tort cases in just the same way that we read the FTCA today. A commenta- the same way that we read the FTCA today. A commenta- tor noted in 1962 that, for the purposes of these borrowing tor noted in 1962 that, for the purposes of these borrowing statutes, "[t]he courts unanimously hold that a cause of action statutes, "[t]he courts unanimously hold that a cause of action sounding in tort arises in the jurisdiction where the last act sounding in tort arises -in the jurisdiction where the last act necessary to establish liability occurred"; i. e., "the jurisdic- necessary to establish liability occurred"; i. e., "the jurisdic- tion in which injury was received." Ester, Borrowing Stat- tion in which injury was received." Ester, Borrowing Stat- utes of Limitation and Conflict of Laws, 15 U. Fla. L. Rev.

utes of Limitation and Conflict of Laws, 15 U. Fla. L. Rev.

33, 47.

There is, moreover, specific reason to believe that using There is, moreover, specific reason to believe that using "arising in" as referring to place of harm was central to the "arising in" as referring to place of harm was central to the object of the foreign country exception. Any tort action in a object of the foreign country exception. Any tort action in a court of the United States based on the acts of a Government court of the United States based on the acts of a Government employee causing harm outside the State of the district court employee causing harm outside the State of the district court in which the action is filed requires a determination of the in which the action is filed requires a determination of the source of the substantive law that will govern liability. source of the substantive law that will govern liability.

When the FTCA was passed, the dominant principle in When the FTCA was passed, the dominant principle in choice-of-law analysis for tort cases was lex loci delicti: choice-of-law analysis for tort cases was lex loci delicti: courts generally applied the law of the place where the in- courts generally applied the law of the place where the in- jury occurred. See Richards v. United States, 369 U. S., at jury occurred. See Richards v United States, 369 U. S., at 11-12 ("The general conflict-of-laws rule, followed by a vast 11-12 ("The general conflict-of-laws rule, followed by a vast majority of the States, is to apply the law of the place of majority of the States, is to apply the law of the place of injury to the substantive rights of the parties" (footnote injury to the substantive rights of the parties" (footnote omitted)); see also Restatement (First) of Conflict of Laws omitted)); see also Restatement (First) of Conflict of Laws §379 (1934) (defendant's liability determined by "the law of §379 (1934) (defendant's liability determined by "the law of the place of wrong");3 id., § 377, Note 1 (place of wrong for the place of wrong"); 3 id., §377, Note 1 (place of wrong for

3 See also Restatement (Second) of Conflict of Laws 412 (1969) (herein- 3 See also Restatement (Second) of Conflict of Laws 412 (1969) (herein- after Restatement 2d) ("The original Restatement stated that, with minor after Restatement 2d) ("The original Restatement stated that, with minor exceptions, all substantive questions relating to the existence of a tort exceptions, all substantive questions relating to the existence of a tort claim are governed by the local law of the 'place of wrong.' This was claim are governed by the local law of the `place of wrong.' This was described .. . as 'the state where the last event necessary to make an described ... as `the state where the last event necessary to make an

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torts involving bodily harm is "the place where the harmful torts involving bodily harm is "the place where the harmful force takes effect upon the body" (emphasis in original)); ibid. force takes effect upon the body" (emphasis in original)); ibid. (same principle for torts of fraud and torts involving harm (same principle for torts of fraud and torts involving harm to property).4 For a plaintiff injured in a foreign country, to property) .4 For a plaintiff injured in a foreign country, then, the presumptive choice in American courts under then, the presumptive choice in American courts under the traditional rule would have been to apply foreign law to the traditional rule would have been to apply foreign law to determine the tortfeasor's liability. See, e. g., Day & Zim- determine the tortfeasor's liability. See, e. g., Day do Zim- mermann, Inc. v. Challoner, 423 U.

S. 3 (1975) (per curiam) mermann, Inc. v. Challoner, 423 U. S. 3 (1975) (per curiam) (noting that Texas would apply Cambodian law to wrongful- (noting that Texas would apply Cambodian law to wrongful- death action involving explosion in Cambodia of an artillery death action involving explosion in Cambodia of an artillery round manufactured in United States); Thomas v. FMC round manufactured in United States); Thomas v. FMC Corp., 610 F.

Supp. 912 (MD Ala. 1985) (applying German Corp., 610 F. Supp.

912 (MD Ala. 1985) (applying German law to determine American manufacturer's liability for law to determine American manufacturer's liability for negligently designing and manufacturing a Howitzer that negligently designing and manufacturing a Howitzer that killed decedent in Germany); Quandt v. Beech Aircraft killed decedent in Germany); Quandt v. Beech Aircraft Corp., 317 F. Supp. 1009 (Del.

1970) (noting that Italian law Corp., 317 F. Supp. 1009 (Del. 1970) (noting that Italian law applies to allegations of negligent manufacture in Kansas applies to allegations of negligent manufacture in Kansas that resulted in an airplane crash in Italy); Manos v. Trans that resulted in an airplane crash in Italy); Manos v. Trans World Airlines, 295 F.

Supp. 1170 (ND Ill. 1969) (applying World Airlines, 295 F. Supp.

1170 (ND Ill. 1969) (applying Italian law to determine American corporation's liability for Italian law to determine American corporation's liability for negligent manufacture of a plane that crashed in Italy); see negligent manufacture of a plane that crashed in Italy); see also, e. g., Dallas v. Whitney, 118 W. Va. 106, 188 S.

E. 766 also, e. g., Dallas v. Whitney, 118 W. Va. 106, 188 S.

E. 766 (1936) (Ohio law applied where blasting operations on a West (1936) (Ohio law applied where blasting operations on a West Virginia highway caused property damage in Ohio); Cam- Virginia highway caused property damage in Ohio); Cam-

actor liable for an alleged tort takes place.' Since a tort is the product of actor liable for an alleged tort takes place.' Since a tort is the product of wrongful conduct and of resulting injury and since the injury follows the wrongful conduct and of resulting injury and since the injury follows the conduct, the state of the 'last event' is the state where the injury conduct, the state of the `last event' is the state where the injury occurred"). occurred").

'The FTCA was passed with precisely these kinds of garden-variety 'The FTCA was passed with precisely these kinds of garden-variety torts in mind. See S. Rep. No. 1400, 79th Cong., 2d Sess., 31 (1946) torts in mind. See S. Rep. No. 1400, 79th Cong., 2d Sess., 31 (1946) ("With the expansion of governmental activities in recent years, it be- ("With the expansion of governmental activities in recent years, it be- comes especially important to grant to private individuals the right to sue comes especially important to grant to private individuals the right to sue the Government in respect to such torts as negligence in the operation of the Government in respect to such torts as negligence in the operation of vehicles"); see generally Feres v. United States, 340 U. S. 135, 139-140 vehicles"); see generally Feres v. United States, 340 U. S. 135, 139-140 (1950) (Congress was principally concerned with making the Government (1950) (Congress was principally concerned with making the Government liable for ordinary torts that "would have been actionable if inflicted by liable for ordinary torts that "would have been actionable if inflicted by an individual or a corporation").

an individual or a corporation").

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eron v. Vandegriff, 53 Ark. 381, 13 S. W. 1092 (1890) (Arkan- eron v Vandegriff, 53 Ark. 381, 13 S. W. 1092 (1890) (Arkan- sas law applied where a blasting of a rock in Indian territory sas law applied where a blasting of a rock in Indian territory inflicted injury on plaintiff in Arkansas). inflicted injury on plaintiff in Arkansas).

The application of foreign substantive law exemplified in The application of foreign substantive law exemplified in these cases was, however, what Congress intended to avoid these cases was, however, what Congress intended to avoid by the foreign country exception.

In 1942, the House Com- by the foreign country exception. In 1942, the House Com- mittee on the Judiciary considered an early draft of the mittee on the Judiciary considered an early draft of the FTCA that would have exempted all claims "arising in a for- FTCA that would have exempted all claims "arising in a for- eign country in behalf of an alien." H. R. 5373, 77th Cong., eign country in behalf of an alien." H. R. 5373, 77th Cong., 2d Sess., § 303(12). The bill was then revised, at the sugges- 2d Sess., § 303(12). The bill was then revised, at the sugges- In tion of the Attorney General, to omit the last five words. tion of the Attorney General, to omit the last five words. In explaining the amendment to the House Committee on the explaining the amendment to the House Committee on the Judiciary, Assistant Attorney General Shea said that Judiciary, Assistant Attorney General Shea said that

"[c]laims arising in a foreign country have been ex- "[c]laims arising in a foreign country have been ex- empted from this bill, H. R. 6463, whether or not the empted from this bill, H. R. 6463, whether or not the claimant is an alien. Since liability is to be determined claimant is an alien. Since liability is to be determined by the law of the situs of the wrongful act or omission by the law of the situs of the wrongful act or omission it is wise to restrict the bill to claims arising in this it is wise to restrict the bill to claims arising in this country. This seems desirable because the law of the country. This seems desirable because the law of the particular State is being applied. Otherwise, it will particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty." Hearings on lead I think to a good deal of difficulty." Hearings on

H. R. 5373 et al. before the House Committee on the

Judiciary, 77th Cong., 2d Sess., 35 (1942).

The amended version, which was enacted into law and consti- The amended version, which was enacted into law and consti- tutes the current text of the foreign country exception, 28 tutes the current text of the foreign country exception, 28

U. S. C. § 2680(k), thus codified Congress's "unwilling[ness] to

subject the United States to liabilities depending upon the subject the United States to liabilities depending upon the laws of a foreign power." United States v. Spelar, 338 U. S. laws of a foreign power." United States v. Spelar, 338 U. S.

217, 221 (1949). See also Sami v. United States, 617 F. 2d, 217, 221 (1949). See also Sami v. United States, 617 F. 2d, at 762 (noting Spelar's explanation but attempting to recast at 762 (noting Spelar's explanation but attempting to recast the object behind the foreign country exception); Leaf v. the object behind the foreign country exception); Leaf v.

United States, 588 F. 2d 733, 736, n. 3 (CA9 1978).

The object being to avoid application of substantive for- The object being to avoid application of substantive for- eign law, Congress evidently used the modifier "arising in a eign law, Congress evidently used the modifier "arising in a foreign country" to refer to claims based on foreign harm or foreign country" to refer to claims based on foreign harm or

708 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

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injury, the fact that would trigger application of foreign law injury, the fact that would trigger application of foreign law to determine liability. That object, addressed by the quoted to determine liability. That object, addressed by the quoted phrase, would obviously have been thwarted, however, by phrase, would obviously have been thwarted, however, by applying the headquarters doctrine, for that doctrine would applying the headquarters doctrine, for that doctrine would have displaced the exception by recasting claims of foreign have displaced the exception by recasting claims of foreign injury as claims not arising in a foreign country because injury as claims not arising in a foreign country because some planning or negligence at domestic headquarters was some planning or negligence at domestic headquarters was their cause.5 And that, in turn, would have resulted in their cause.' And that, in turn, would have resulted in applying foreign law of the place of injury, in accordance with applying foreign law of the place of injury, in accordance with the choice-of-law rule of the headquarters jurisdiction.

the choice-of-law rule of the headquarters jurisdiction.

Nor, as a practical matter, can it be said that the headquar- Nor, as a practical matter, can it be said that the headquar- ters doctrine has outgrown its tension with the exception. ters doctrine has outgrown its tension with the exception.

It is true that the traditional approach to choice of substan- It is true that the traditional approach to choice of substan- tive tort law has lost favor, Simson, The Choice-of-Law Rev- tive tort law has lost favor, Simson, The Choice-of-Law Rev- olution in the United States: Notes on Rereading Von olution in the United States: Notes on Rereading Von Mehren, 36 Cornell Int'l L. J. 125 (2002) ("The traditional Mehren, 36 Cornell Int'1 L. J. 125 (2002) ("The traditional methodology of place of wrong... has receded in importance, methodology of place of wrong ... has receded in importance, and new approaches and concepts such as governmental in- and new approaches and concepts such as governmental in- terest analysis, most significant relationship, and better rule terest analysis, most significant relationship, and better rule of law have taken over center stage" (footnotes omitted)). 6 of law have taken over center stage" (footnotes omitted)).s

5 The application of foreign law might nonetheless have been avoided in 6 The application of foreign law might nonetheless have been avoided in headquarters cases if courts had been instructed to apply the substantive headquarters cases if courts had been instructed to apply the substantive tort law of the State where the federal act or omission occurred, regard- tort law of the State where the federal act or omission occurred, regard- less of where the ultimate harm transpired. But in Richards v. United less of where the ultimate harm transpired. But in Richards v. United States, 369 U. S. 1 (1962), we held that the Act requires "the whole law States, 369 U. S. 1 (1962), we held that the Act requires "the whole law (including choice-of-law rules) . . . of the State where the [allegedly tor- (including choice-of-law rules) ... of the State where the [allegedly tor- tious federal] act or omission occurred," id., at 3, 11. Given the dominant tious federal] act or omission occurred," id., at 3, 11. Given the dominant American choice-of-law approach at the time the Act was passed, that American choice-of-law approach at the time the Act was passed, that would have resulted in the application of foreign law in virtually any case would have resulted in the application of foreign law in virtually any case where the plaintiff suffered injury overseas.

where the plaintiff suffered injury overseas.

6 See also Rydstrom, Modern Status of Rule that Substantive Rights of 6 See also Rydstrom, Modern Status of Rule that Substantive Rights of Parties to a Tort Action are Governed by the Law of the Place of the Parties to a Tort Action are Governed by the Law of the Place of the Wrong, 29 A. L. R. 3d 603, 608, §2[a] (1970) ("[M]any courts [are] now Wrong, 29 A. L. R. 3d 603, 608, §2[a] (1970) ("[M]any courts [are] now abandoning the orthodox rule that the substantive rights of the parties abandoning the orthodox rule that the substantive rights of the parties are governed by the law of the place of the wrong" (footnotes omitted)). are governed by the law of the place of the wrong" (footnotes omitted)).

We express no opinion on the relative merits of the various approaches We express no opinion on the relative merits of the various approaches to choice questions; our discussion of the subject is intended only to indi- to choice questions; our discussion of the subject is intended only to indi-

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But a good many States still employ essentially the same But a good many States still employ essentially the same choice-of-law analysis in tort cases that the First Restate- choice-of-law analysis in tort cases that the First Restate- ment exemplified. Symeonides, Choice of Law in the Amer- ment exemplified. Symeonides, Choice of Law in the Amer- ican Courts, 51 Am. J. Comp. L. 1, 4-5 (2003) ("Ten states ican Courts, 51 Am. J. Comp. L. 1, 4-5 (2003) ("Ten states continue to adhere to the traditional method in tort con- continue to adhere to the traditional method in tort con- flicts"); see, e. g., Raskin v. Allison, 30 Kan. App. 2d 1240, flicts"); see, e. g., Raskin v. Allison, 30 Kan. App. 2d 1240, 1242, 1241, 57 P. 3d 30, 32 (2002) (under "traditional choice of 1242, 1241, 57 P. 3d 30, 32 (2002) (under "traditional choice of law principles largely reflected in the original Restatement," law principles largely reflected in the original Restatement," Mexican law applied to boating accident in Mexican waters Mexican law applied to boating accident in Mexican waters because "the injuries were sustained in Mexican waters").

because "the injuries were sustained in Mexican waters").

Equally to the point is that in at least some cases that Equally to the point is that in at least some cases that the Court of Appeals's approach would treat as arising at the Court of Appeals's approach would treat as arising at headquarters, not the foreign country, even the later method- headquarters, not the foreign country, even the later method- ologies of choice point to the application of foreign law. The ologies of choice point to the application of foreign law. The Second Restatement itself, encouraging the general shift to- Second Restatement itself, encouraging the general shift to- ward using flexible balancing analysis to inform choice of ward using flexible balancing analysis to inform choice of law,7 includes a default rule for tort cases rooted in the tradi- law ,7 includes a default rule for tort cases rooted in the tradi- tional approach: "[i]n an action for a personal injury, the local tional approach: "[i]n an action for a personal injury, the local law of the state where the injury occurred determines the law of the state where the injury occurred determines the rights and liabilities of the parties, unless . . . some other rights and liabilities of the parties, unless ... some other state has a more significant relationship.., to the occurrence state has a more significant relationship ... to the occurrence and the parties." Restatement 2d § 146; see also id., Com- and the parties." Restatement 2d § 146; see also id., Com- ment e ("On occasion, conduct and personal injury will occur ment a ("On occasion, conduct and personal injury will occur in different states.

In such instances, the local law of the in different states. In such instances, the local law of the state of injury will usually be applied to determine most is- state of injury will usually be applied to determine most is- sues involving the tort").

In practice, then, the new dispen- sues involving the tort"). In practice, then, the new dispen- sation frequently leads to the traditional application of the sation frequently leads to the traditional application of the

cate how, as a positive matter, transjurisdictional cases are likely to be cate how, as a positive matter, transjurisdictional cases are likely to be treated today. treated today.

I Under the Second Restatement, tort liability is determined "by the Under the Second Restatement, tort liability is determined "by the local law of the state which ... has the most significant relationship to the local law of the state which ... has the most significant relationship to the occurrence and the parties," taking into account "the place where the in- occurrence and the parties," taking into account "the place where the in- jury occurred," "the place where the conduct causing the injury occurred," jury occurred," "the place where the conduct causing the injury occurred," "the domicil, residence, nationality, place of incorporation and place of "the domicil, residence, nationality, place of incorporation and place of business of the parties," and "the place where the relationship, if any, business of the parties," and "the place where the relationship, if any, between the parties is centered." Restatement 2d § 145.

between the parties is centered." Restatement 2d § 145.

710 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

Opinion of the Court Opinion of the Court

law of the jurisdiction of injury. See, e. g., Dorman v. Emer- law of the jurisdiction of injury. See, e. g., Dorman v. Emer- son Elec. Co., 23 F. 3d 1354 (CA8 1994) (applying Canadian son Elec. Co., 23 F. 3d 1354 (CA8 1994) (applying Canadian law where negligent saw design in Missouri caused injury in law where negligent saw design in Missouri caused injury in Canada); Bing v. Halstead, 495 F. Supp. 517 (SDNY 1980) Canada); Bing v. Halstead, 495 F. Supp. 517 (SDNY 1980) (applying Costa Rican law where letter written and mailed (applying Costa Rican law where letter written and mailed in Arizona caused mental distress in Costa Rica); McKinnon in Arizona caused mental distress in Costa Rica); McKinnon

v. F. H. Morgan & Co., 170 Vt. 422, 750 A. 2d 1026 (2000)

(applying Canadian law where a defective bicycle sold in Ver- (applying Canadian law where a defective bicycle sold in Ver- mont caused injuries in Quebec). mont caused injuries in Quebec).

In sum, current flexibility in choice-of-law methodology In sum, current flexibility in choice-of-law methodology gives no assurance against applying foreign substantive law gives no assurance against applying foreign substantive law if federal courts follow headquarters doctrine to assume ju- if federal courts follow headquarters doctrine to assume ju- risdiction over tort claims against the Government for for- risdiction over tort claims against the Government for for- eign harm. Based on the experience just noted, the expec- eign harm. Based on the experience just noted, the expec- tation is that application of the headquarters doctrine would tation is that application of the headquarters doctrine would in fact result in a substantial number of cases applying the in fact result in a substantial number of cases applying the very foreign law the foreign country exception was meant very foreign law the foreign country exception was meant to avoid.8 to avoid .8

Before concluding that headquarters analysis should have Before concluding that headquarters analysis should have no part in applying the foreign country exception, however, no part in applying the foreign country exception, however,

8 The courts that have applied the headquarters doctrine, believing it to "The courts that have applied the headquarters doctrine, believing it to be intimated by our emphasis, in Richards v. United States, supra, on be intimated by our emphasis, in Richards v. United States, supra, on the place of the occurrence of the negligent act, have acknowledged the the place of the occurrence of the negligent act, have acknowledged the possibility that foreign law may govern FTCA claims as a function of possibility that foreign law may govern FTCA claims as a function of Richards's further holding that the whole law of the pertinent State (in- Richards's further holding that the whole law of the pertinent State (in- cluding its choice-of-law provisions) is to be applied. See, e. g., Leaf, 588 cluding its choice-of-law provisions) is to be applied. See, e. g., Leaf, 588

F. 2d, at 736, n. 3. Some courts have attempted to defuse the resulting

tension with the object behind the foreign country exception. See, e. g., tension with the object behind the foreign country exception. See, e. g., Sami v. United States, 617 F. 2d 755, 763 (CADC 1979) (believing that Sami v. United States, 617 F. 2d 755, 763 (CADC 1979) (believing that norm against application of foreign law when contrary to forum policy is norm against application of foreign law when contrary to forum policy is sufficient to overcome possible conflict). We think that these attempts to sufficient to overcome possible conflict). We think that these attempts to resolve the tension give short shrift to the clear congressional mandate resolve the tension give short shrift to the clear congressional mandate embodied by the foreign country exception. Cf. Shapiro, Choice of Law embodied by the foreign country exception. Cf. Shapiro, Choice of Law Under the Federal Tort Claims Act: Richards and Renvoi Revisited, 70 Under the Federal Tort Claims Act: Richards and Renvoi Revisited, 70

N. C. L. Rev. 641, 659-660 (1992) (noting that the Richards rule that the

totality of a State's law is to be consulted may undermine the object be- totality of a State's law is to be consulted may undermine the object be- hind the foreign country exception). hind the foreign country exception).

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a word is needed to answer an argument for selective appli- a word is needed to answer an argument for selective appli- cation of headquarters doctrine, that it ought to be permitted cation of headquarters doctrine, that it ought to be permitted when a State's choice-of-law approach would not apply the when a State's choice-of-law approach would not apply the foreign law of place of injury. See In re "Agent Orange" foreign law of place of injury. See In re "Agent Orange" Product Liability Litigation, 580 F. Supp. 1242, 1254 Product Liability Litigation, 580 F. Supp. 1242, 1254 (EDNY 1984) (noting that the purpose of the exception did (EDNY 1984) (noting that the purpose of the exception did not apply to the litigation at hand because foreign law was not apply to the litigation at hand because foreign law was not implicated). The point would be well taken, of course, not implicated). The point would be well taken, of course, if Congress had written the exception to apply when foreign if Congress had written the exception to apply when foreign law would be applied. But that is not what Congress said.

law would be applied. But that is not what Congress said.

Its provision of an exception when a claim arises in a foreign Its provision of an exception when a claim arises in a foreign country was written at a time when the phrase "arising in" country was written at a time when the phrase "arising in" was used in state statutes to express the position that a was used in state statutes to express the position that a claim arises where the harm occurs; and the odds are that claim arises where the harm occurs; and the odds are that Congress meant simply this when it used the "arising in" Congress meant simply this when it used the "arising in" language.9 Finally, even if it were not a stretch to equate language.' Finally, even if it were not a stretch to equate "arising in a foreign country" with "implicating foreign law," "arising in a foreign country" with "implicating foreign law," the result of accepting headquarters analysis for foreign in- the result of accepting headquarters analysis for foreign in- jury cases in which no application of foreign law would ensue jury cases in which no application of foreign law would ensue would be a scheme of federal jurisdiction that would vary would be a scheme of federal jurisdiction that would vary from State to State, benefiting or penalizing plaintiffs ac- from State to State, benefiting or penalizing plaintiffs ac- cordingly. The idea that Congress would have intended any cordingly. The idea that Congress would have intended any

I It is difficult to reconcile the Government's contrary reading with the I It is difficult to reconcile the Government's contrary reading with the fact that two of the Act's other exceptions specifically reference an "act or fact that two of the Act's other exceptions specifically reference an "act or omission." See 28 U. S. C. §2680(a) (exempting United States from liabil- omission." See 28 U.S. C. §2680(a) (exempting United States from liabil- ity for "[a]ny claim based upon an act or omission of an employee of the ity for "[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regula- Government, exercising due care, in the execution of a statute or regula- tion"); § 2680(e) ("Any claim arising out of an act or omission of any em- tion"); §2680(e) ("Any claim arising out of an act or omission of any em- ployee of the Government in administering [certain portions of the Trad- ployee of the Government in administering [certain portions of the Trad- ing with the Enemy Act of 1917]"). The Government's request that we ing with the Enemy Act of 19171"). The Government's request that we read that phrase into the foreign country exception, when it is clear that read that phrase into the foreign country exception, when it is clear that Congress knew how to specify "act or omission" when it wanted to, runs Congress knew how to specify "act or omission" when it wanted to, runs afoul of the usual rule that "when the legislature uses certain language in afoul of the usual rule that "when the legislature uses certain language in one part of the statute and different language in another, the court as- one part of the statute and different language in another, the court as- sumes different meanings were intended." 2A N. Singer, Statutes and sumes different meanings were intended." 2A N. Singer, Statutes and

Statutory Construction §46:06, p. 194 (6th rev. ed. 2000):

Statutory Construction §46:06, p. 194 (6th rev. ed. 2000): 712 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

Opinion of the Court Opinion of the Court

such jurisdictional variety is too implausible to drive the such jurisdictional variety is too implausible to drive the analysis to the point of grafting even a selective headquar- analysis to the point of grafting even a selective headquar- ters exception onto the foreign country exception itself. We ters exception onto the foreign country exception itself. We therefore hold that the FTCA's foreign country exception therefore hold that the FTCA's foreign country exception bars all claims based on any injury suffered in a foreign bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission country, regardless of where the tortious act or omission occurred. occurred.

III

Alvarez has also brought an action under the ATS against Alvarez has also brought an action under the ATS against petitioner Sosa, who argues (as does the United States sup- petitioner Sosa, who argues (as does the United States sup- porting him) that there is no relief under the ATS because porting him) that there is no relief under the ATS because the statute does no more than vest federal courts with juris- the statute does no more than vest federal courts with juris- diction, neither creating nor authorizing the courts to recog- diction, neither creating nor authorizing the courts to recog- nize any particular right of action without further congres- nize any particular right of action without further congres- sional action. Although we agree the statute is in terms sional action. Although we agree the statute is in terms only jurisdictional, we think that at the time of enactment only jurisdictional, we think that at the time of enactment the jurisdiction enabled federal courts to hear claims in a the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and rec- very limited category defined by the law of nations and rec- ognized at common law. We do not believe, however, that ognized at common law. We do not believe, however, that the limited, implicit sanction to entertain the handful of in- the limited, implicit sanction to entertain the handful of in- ternational law cum common law claims understood in 1789 ternational law cum common law claims understood in 1789 should be taken as authority to recognize the right of action should be taken as authority to recognize the right of action asserted by Alvarez here.

asserted by Alvarez here.

A

Judge Friendly called the ATS a "legal Lohengrin," HT Judge Friendly called the ATS a "legal Lohengrin," HT

v. Vencap, Ltd., 519 F. 2d 1001, 1015 (CA2 1975); "no one

seems to know whence it came," ibid., and for over 170 years seems to know whence it came," ibid., and for over 170 years after its enactment it provided jurisdiction in only one case. after its enactment it provided jurisdiction in only one case.

The first Congress passed it as part of the Judiciary Act of The first Congress passed it as part of the Judiciary Act of 1789, in providing that the new federal district courts "shall 1789, in providing that the new federal district courts "shall also have cognizance, concurrent with the courts of the sev- also have cognizance, concurrent with the courts of the sev- eral States, or the circuit courts, as the case may be, of all eral States, or the circuit courts, as the case may be, of all causes where en alien sues for a tort only in violation of the causes where an alien sues for a tort only in violation of the

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law of nations or a treaty of the United States." Act of law of nations or a treaty of the United States." Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77.1° Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77. 10

The parties and amici here advance radically different his- The parties and amici here advance radically different his- torical interpretations of this terse provision. Alvarez says torical interpretations of this terse provision. Alvarez says that the ATS was intended not simply as a jurisdictional that the ATS was intended not simply as a jurisdictional grant, but as authority for the creation of a new cause of grant, but as authority for the creation of a new cause of action for torts in violation of international law. We think action for torts in violation of international law. We think that reading is implausible. As enacted in 1789, the ATS that reading is implausible. As enacted in 1789, the ATS gave the district courts "cognizance" of certain causes of ac- gave the district courts "cognizance" of certain causes of ac- tion, and the term bespoke a grant of jurisdiction, not power tion, and the term bespoke a grant of jurisdiction, not power to mold substantive law. See, e. g., The Federalist No. 81, to mold substantive law. See, e. g., The Federalist No. 81, pp. 447, 451 (J. Cooke ed. 1961) (A. Hamilton) (using "jurisdic- pp. 447, 451(J. Cooke ed. 1961) (A. Hamilton) (using "jurisdic- tion" interchangeably with "cognizance"). The fact that the tion" interchangeably with "cognizance"). The fact that the ATS was placed in § 9 of the Judiciary Act, a statute other- ATS was placed in § 9 of the Judiciary Act, a statute other- wise exclusively concerned with federal-court jurisdiction, wise exclusively concerned with federal-court jurisdiction, is itself support for its strictly jurisdictional nature. Nor is itself support for its strictly jurisdictional nature. Nor would the distinction between jurisdiction and cause of ac- would the distinction between jurisdiction and cause of ac- tion have been elided by the drafters of the Act or those who tion have been elided by the drafters of the Act or those who voted on it. As Fisher Ames put it, "there is a substantial voted on it. As Fisher Ames put it, "there is a substantial difference between the jurisdiction of the courts and the difference between the jurisdiction of the courts and the rules of decision." 1 Annals of Cong. 807 (Gales ed. 1834).

rules of decision." 1 Annals of Cong. 807 (Gales ed. 1834).

It is unsurprising, then, that an authority on the historical It is unsurprising, then, that an authority on the historical origins of the ATS has written that "section 1350 clearly does origins of the ATS has written that "section 1350 clearly does not create a statutory cause of action," and that the con- not create a statutory cause of action," and that the con- trary suggestion is "simply frivolous." Casto, The Federal trary suggestion is "simply frivolous." Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Vio- Courts' Protective Jurisdiction over Torts Committed in Vio- lation of the Law of Nations, 18 Conn. L. Rev. 467, 479, 480 lation of the Law of Nations, 18 Conn. L. Rev. 467, 479, 480 (1986) (hereinafter Casto, Law of Nations); cf. Dodge, The (1986) (hereinafter Casto, Law of Nations); cf. Dodge, The Constitutionality of the Alien Tort Statute: Some Observa- Constitutionality of the Alien Tort Statute: Some Observa- tions on Text and Context, 42 Va. J. Int'l L. 687, 689 (2002).

tions on Text and Context, 42 Va. J. Int'1 L. 687, 689 (2002).

10 The statute has been slightly modified on a number of occasions since 10 The statute has been slightly modified on a number of occasions since its original enactment.

It now reads in its entirety: "The district courts its original enactment. It now reads in its entirety: "The district courts shall have original jurisdiction of any civil action by an alien for a tort shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United only, committed in violation of the law of nations or a treaty of the United States."

28 U. S. C. § 1350.

States." 28 U. S. C. § 1350.

714 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

Opinion of the Court Opinion of the Court

In sum, we think the statute was intended as jurisdictional In sum, we think the statute was intended as jurisdictional in the sense of addressing the power of the courts to enter- in the sense of addressing the power of the courts to enter- tain cases concerned with a certain subject. tain cases concerned with a certain subject.

But holding the ATS jurisdictional raises a new question, But holding the ATS jurisdictional raises a new question, this one about the interaction between the ATS at the time this one about the interaction between the ATS at the time of its enactment and the ambient law of the era. Sosa would of its enactment and the ambient law of the era. Sosa would have it that the ATS was stillborn because there could be no have it that the ATS was stillborn because there could be no claim for relief without a further statute expressly authoriz- claim for relief without a further statute expressly authoriz- ing adoption of causes of action. Amici professors of federal ing adoption of causes of action. Amici professors of federal jurisdiction and legal history take a different tack, that fed- jurisdiction and legal history take a different tack, that fed- eral courts could entertain claims once the jurisdictional eral courts could entertain claims once the jurisdictional grant was on the books, because torts in violation of the law grant was on the books, because torts in violation of the law of nations would have been recognized within the common of nations would have been recognized within the common law of the time. Brief for Vikram Amar et al. as Amici Cu- law of the time. Brief for Vikram Amar et al. as Amici Cu- riae. We think history and practice give the edge to this riae. We think history and practice give the edge to this latter position.

latter position.

1 1

"When the United States declared their independence, "When the United States declared their independence, they were bound to receive the law of nations, in its modern they were bound to receive the law of nations, in its modern state of purity and refinement." Ware v. Hylton, 3 Dall. state of purity and refinement." Ware v. Hylton, 3 Dall.

199, 281 (1796) (Wilson, J.).

In the years of the early Repub- 199, 281 (1796) (Wilson, J.). In the years of the early Repub- lic, this law of nations comprised two principal elements, the lic, this law of nations comprised two principal elements, the first covering the general norms governing the behavior of first covering the general norms governing the behavior of national states with each other: "the science which teaches national states with each other: "the science which teaches the rights subsisting between nations or states, and the obli- the rights subsisting between nations or states, and the obli- gations correspondent to those rights," E. de Vattel, Law of gations correspondent to those rights," E. de Vattel, Law of Nations, Preliminaries § 3 (J. Chitty et al. transl. and ed.

Nations, Preliminaries § 3 (J Chitty et al. transl. and ed.

1883) (hereinafter Vattel) (footnote omitted), or "that code of 1883) (hereinafter Vattel) (footnote omitted), or "that code of public instruction which defines the rights and prescribes the public instruction which defines the rights and prescribes the duties of nations, in their intercourse with each other," 1 duties of nations, in their intercourse with each other," 1

J. Kent, Commentaries on American Law *1. This aspect of

the law of nations thus occupied the executive and legislative the law of nations thus occupied the executive and legislative domains, not the judicial. See 4 W. Blackstone, Commentar- domains, not the judicial. See 4 W. Blackstone, Commentar- ies on the Laws of England 68 (1769) (hereinafter Commen- ies on the Laws of England 68 (1769) (hereinafter Commen- taries) ("[O]ffences against" the law of nations are "princi- taries) ("[0]ffences against" the law of nations are "princi- pally incident to whole states or nations"). pally incident to whole states or nations").

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The law of nations included a second, more pedestrian ele- The law of nations included a second, more pedestrian ele- ment, however, that did fall within the judicial sphere, as a ment, however, that did fall within the judicial sphere, as a body of judge-made law regulating the conduct of individuals body of judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently car- situated outside domestic boundaries and consequently car- rying an international savor. To Blackstone, the law of na- rying an international savor. To Blackstone, the law of na- tions in this sense was implicated "in mercantile questions, tions in this sense was implicated "in mercantile questions, such as bills of exchange and the like; in all marine causes, such as bills of exchange and the like; in all marine causes, relating to freight, average, demurrage, insurances, bot- relating to freight, average, demurrage, insurances, bot- tomry ...

; [and] in all disputes relating to prizes, to ship- tomry ... ; [and] in all disputes relating to prizes, to ship- wrecks, to hostages, and ransom bills."

Id., at 67. The law wrecks, to hostages, and ransom bills." Id., at 67. The law merchant emerged from the customary practices of interna- merchant emerged from the customary practices of interna- tional traders and admiralty required its own transnational tional traders and admiralty required its own transnational regulation. And it was the law of nations in this sense that regulation. And it was the law of nations in this sense that our precursors spoke about when the Court explained the our precursors spoke about when the Court explained the status of coast fishing vessels in wartime grew from "ancient status of coast fishing vessels in wartime grew from "ancient usage among civilized nations, beginning centuries ago, and usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law ... " gradually ripening into a rule of international law ...."

The Paquete Habana, 175 U. S. 677, 686 (1900).

There was, finally, a sphere in which these rules binding There was, finally, a sphere in which these rules binding individuals for the benefit of other individuals overlapped individuals for the benefit of other individuals overlapped with the norms of state relationships. Blackstone referred with the norms of state relationships. Blackstone referred to it when he mentioned three specific offenses against the to it when he mentioned three specific offenses against the

law of nations addressed by the criminal law of England:

violation of safe conducts, infringement of the rights of am- violation of safe conducts, infringement of the rights of am- bassadors, and piracy. 4 Commentaries 68. An assault bassadors, and piracy. 4 Commentaries 68. An assault against an ambassador, for example, impinged upon the sov- against an ambassador, for example, impinged upon the sov- ereignty of the foreign nation and if not adequately re- ereignty of the foreign nation and if not adequately re- dressed could rise to an issue of war. See Vattel 463-464. dressed could rise to an issue of war. Seé Vattel 463-464.

It was this narrow set of violations of the law of nations, It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threat- admitting of a judicial remedy and at the same time threat- ening serious consequences in international affairs, that was ening serious consequences in international affairs, that was probably on minds of the men who drafted the ATS with its probably on minds of the men who drafted the ATS with its reference to tort. reference to tort.

2 2

Before there was any ATS, a distinctly American preoccu- Before there was any ATS, a distinctly American preoccu- pation with these hybrid international norms had taken pation with these hybrid international norms had taken

716 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

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shape owing to the distribution of political power from inde- shape owing to the distribution of political power from inde- pendence through the period of confederation. The Conti- pendence through the period of confederation. The Conti- nental Congress was hamstrung by its inability to "cause nental Congress was hamstrung by its inability to "cause infractions of treaties, or of the law of nations to be pun- infractions of treaties, or of the law of nations to be pun- ished," J. Madison, Journal of the Constitutional Convention ished," J Madison, Journal of the Constitutional Convention 60 (E. Scott ed. 1893), and in 1781 the Congress implored the 60 (E. Scott ed. 1893), and in 1781 the Congress implored the States to vindicate rights under the law of nations.

In States to vindicate rights under the law of nations. In words that echo Blackstone, the congressional resolution words that echo Blackstone, the congressional resolution called upon state legislatures to "provide expeditious, exem- called upon state legislatures to "provide expeditious, exem- plary and adequate punishment" for "the violation of safe plary and adequate punishment" for "the violation of safe conducts or passports,... of hostility against such as are in conducts or passports.... of hostility against such as are in amity . . . with the United States, . . . infractions of the amity ... with the United States, ... infractions of the immunities of ambassadors and other public ministers . . . immunities' of ambassadors and other public ministers .. . [and] infractions of treaties and conventions to which the [and] infractions of treaties and conventions to which the United States are a party."

21 Journals of the Continental United States are a party." 21 Journals of the Continental Congress 1136-1137 (G. Hunt ed. 1912) (hereinafter Journals Congress 1136-1137 (G. Hunt ed. 1912) (hereinafter Journals of the Continental Congress). The resolution recommended of the Continental Congress). The resolution recommended that the States "authorise suits ... for damages by the party that the States "authorise suits ... for damages by the party injured, and for compensation to the United States for dam- injured, and for compensation to the United States for dam- age sustained by them from an injury done to a foreign age sustained by them from an injury done to a foreign power by a citizen."

Id., at 1137; cf. Vattel 463-464 ("Who- power by a citizen." Id., at 1137; cf. Vattel 463-464 ("Who- ever offends.., a public minister.., should be punished..., ever offends ... a public minister ... should be punished ... , and ... the state should, at the expense of the delinquent, and ... the state should, at the expense of the delinquent, give full satisfaction to the sovereign who has been offended give full satisfaction to the sovereign who has been offended in the person of his minister"). Apparently only one State in the person of his minister"). Apparently only one State acted upon the recommendation, see Public Records of the acted upon the recommendation, see Public Records of -the State of Connecticut, 1782, pp. 82, 83 (L. Larabee ed. 1982) State of Connecticut, 1782, pp. 82, 83 (L. Larabee ed. 1982) (1942 compilation, exact date of Act unknown), but Congress (1942 compilation, exact date of Act unknown), but Congress had done what it could to signal a commitment to enforce had done what it could to signal a commitment to enforce the law of nations.

the law of nations.

Appreciation of the Continental Congress's incapacity to Appreciation of the Continental Congress's incapacity to deal with this class of cases was intensified by the so-called deal with this class of cases was intensified by the so-called Marbois incident of May 1784, in which a French adventurer, Marbois incident of May 1784, in which a French adventurer, De Longchamps, verbally and physically assaulted the Secre- De Longchamps, verbally and physically assaulted the Secre- tary of the French Legion in Philadelphia. See Respublica tary of the French Legion in Philadelphia. See Respublica

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v. De Longehamps, 1 Dall. 111 (0. T. Phila. 1784). 11 Con-

v. De Longchamps, 1 Dall. 111 (0. T. Phila. 1784). 11 Con-

gress called again for state legislation addressing such mat- gress called again for state legislation addressing such mat- ters, and concern over the inadequate vindication of the law ters, and concern over the inadequate vindication of the law of nations persisted through the time of the Constitutional of nations persisted through the time of the Constitutional Convention. See 1 Records of the Federal Convention of Convention. See 1 Records of the Federal Convention of 1787, p. 25 (M. Farrand ed. 1911) (speech of J. Randolph).

1787, p. 25 (M. Farrand ed. 1911) (speech of J Randolph).

During the Convention itself, in fact, a New York City con- During the Convention itself, in fact, a New York City con- stable produced a reprise of the Marbois affair and Secretary stable produced a reprise of the Marbois affair and Secretary Jay reported to Congress on the Dutch Ambassador's pro- Jay reported to Congress on the Dutch Ambassador's pro- test, with the explanation that "'the federal government test, with the explanation that "`the federal government to be vested with any judicial Powers does not appear ... does not appear ... to be vested with any judicial Powers competent to the Cognizance and Judgment of such Cases."' competent to the Cognizance and Judgment of such Cases."' Casto, Law of Nations 494, and n. 152.

Casto, Law of Nations 494, and n. 152.

The Framers responded by vesting the Supreme Court The Framers responded by vesting the Supreme Court with original jurisdiction over "all Cases affecting Ambassa- with original jurisdiction over "all Cases affecting Ambassa- dors, other public ministers and Consuls." U. S. Const., dors, other public ministers and Consuls." U. S. Const., Art. III,§ 2, and the First Congress followed through. The Art. III, §2, and the First Congress followed through. The Judiciary Act reinforced this Court's original jurisdiction Judiciary Act reinforced this Court's original jurisdiction over suits brought by diplomats, see 1 Stat. 80, ch. 20, § 13, over suits brought by diplomats, see 1 Stat. 80, ch. 20, § 13, created alienage jurisdiction, § 11, and, of course, included created alienage jurisdiction, § 11, and, of course, included the ATS, § 9. See generally Randall, Federal Jurisdiction the ATS, § 9. See generally Randall, Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort over International Law Claims: Inquiries into the Alien Tort Statute, 18 N. Y. U. J. Int'l L. & Pol. 1, 15-21 (1985) (herein- Statute, 18 N. Y. U. J Int'1 L. & Pol. 1, 15-21 (1985) (herein-

"The French minister plenipotentiary lodged a formal protest with the "The French minister plenipotentiary lodged a formal protest with the Continental Congress, 27 Journals of the Continental Congress 478, and Continental Congress, 27 Journals of the Continental Congress 478, and threatened to leave Pennsylvania "unless the decision on Longchamps threatened to leave Pennsylvania "unless the decision on Longchamps Case should give them full satisfaction." Letter from Samuel Hardy to Case should give them full satisfaction." Letter from Samuel Hardy to Gov. Benjamin Harrison of Virginia, June 24, 1784, in 7 Letters of Mem- Gov. Benjamin Harrison of Virginia, June 24, 1784, in 7 Letters of Mem- bers of the Continental Congress 558, 559 (E. Burnett ed. 1934). De bers of the Continental Congress 558, 559 (E. Burnett ed. 1934). De Longchamps was prosecuted for a criminal violation of the law of nations Longchamps was prosecuted for a criminal violation of the law of nations in state court.

in state court.

The Congress could only pass resolutions, one approving the state-court The Congress could only pass resolutions, one approving the state-court proceedings, 27 Journals of the Continental Congress 503, another direct- proceedings, 27 Journals of the Continental Congress 503, another direct- ing the Secretary of Foreign Affairs to apologize and to "explain to Mr. ing the Secretary of Foreign Affairs to apologize and to "explain to Mr.

De Marbois the difficulties that may arise... from the nature of a federal De Marbois the difficulties that may arise ... from the nature of a federal union," 28 id., at 314, and to explain to the representative of Louis XVI union," 28 id., at 314, and to explain to the representative of Louis XVI that "many allowances are to be made for" the young Nation, ibid. that "many allowances are to be made for" the young Nation, ibid.

718 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

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after Randall) (discussing foreign affairs implications of the after Randall) (discussing foreign affairs implications of the Judiciary Act); W. Casto, The Supreme Court in the Early Judiciary Act); W. Casto, The Supreme Court in the Early Republic 27-53 (1995).

Republic 27-53 (1995).

3 3

Although Congress modified the draft of what became the Although Congress modified the draft of what became the Judiciary Act, see generally Warren, New Light on the His- Judiciary Act, see generally Warren, New Light on the His- tory of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. tory of the Federal Judiciary Act of 1789, 37 Harv. L. Rev.

49 (1923), it made hardly any changes to the provisions on 49 (1923), it made hardly any changes to the provisions on aliens, including what became the ATS, see Casto, Law of aliens, including what became the ATS, see Casto, Law of Nations 498. There is no record of congressional discussion Nations 498. There is no record of congressional discussion about private actions that might be subject to the jurisdic- about private actions that might be subject to the jurisdic- tional provision, or about any need for further legislation to tional provision, or about any need for further legislation to create private remedies; there is no record even of debate on create private remedies; there is no record even of debate on the section. Given the poverty of drafting history, modern the section. Given the poverty of drafting history, modern commentators have necessarily concentrated on the text, re- commentators have necessarily concentrated on the text, re- marking on the innovative use of the word "tort," see, e. g., marking on the innovative use of the word "tort," see, e. g., Sweeney, A Tort only in Violation of the Law of Nations, 18 Sweeney, A Tort only in Violation of the Law of Nations, 18 Hastings Int'l & Comp. L. Rev. 445 (1995) (arguing that Hastings Int'l & Comp. L. Rev. 445 (1995) (arguing that "tort" refers to the law of prize), and the statute's mixture "tort" refers to the law of prize), and the statute's mixture of terms expansive ("all suits"), see, e. g., Casto, Law of Na- of terms expansive ("all suits"), see, e. g., Casto, Law of Na- tions 500, and restrictive ("for a tort only"), see, e. g., Randall tions 500, and restrictive ("for a tort only"), see, e. g., Randall 28-31 (limiting suits to torts, as opposed to commercial 28-31 (limiting suits to torts, as opposed to commercial actions, especially by British plaintiffs).1 2 The historical actions, especially by British plaintiffs). 12 The historical scholarship has also placed the ATS within the competition scholarship has also placed the ATS within the competition between federalist and antifederalist forces over the national between federalist and antifederalist forces over the national Id., at 22-23 (nonexclusiveness of role in foreign relations.

role in foreign relations. Id., at 22-23 (nonexclusiveness of federal jurisdiction under the ATS may reflect compromise). federal jurisdiction under the ATS may reflect compromise).

But despite considerable scholarly attention, it is fair to say But despite considerable scholarly attention, it is fair to say

2 The restriction may have served the different purpose of putting for- "The restriction may have served the different purpose of putting for- eigners on notice that they would no longer be able to prosecute their eigners on notice that they would no longer be able to prosecute their own criminal cases in federal court. Compare, e. g., 3 Commentaries 160 own criminal cases in federal court. Compare, e. g., 3 Commentaries 160 (victims could start prosecutions) with the Judiciary Act § 35 (creating the (victims could start prosecutions) with the Judiciary Act § 35 (creating the office of the district attorney). Cf. 1 Op. Atty. Gen. 41, 42 (1794) (British office of the district attorney). Cf. 1 Op. Atty. Gen. 41, 42 (1794) (British consul could not himself initiate criminal prosecution, but could provide consul could not himself initiate criminal prosecution, but could provide evidence to the grand jury).

evidence to the grand jury).

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that a consensus understanding of what Congress intended that a consensus understanding of what Congress intended has proven elusive. has proven elusive.

Still, the history does tend to support two propositions.

First, there is every reason to suppose that the First Con- First, there is every' reason to suppose that the First Con- gress did not pass the ATS as a jurisdictional convenience to gress did not pass the ATS as a jurisdictional convenience to be placed on the shelf for use by a future Congress or state be placed on the shelf for use by a future Congress or state legislature that might, someday, authorize the creation of legislature that might, someday, authorize the creation of causes of action or itself decide to make some element of the causes of action or itself decide to make some element of the law of nations actionable for the benefit of foreigners. The law of nations actionable for the benefit of foreigners. The anxieties of the preconstitutional period cannot be ignored anxieties of the preconstitutional period cannot be ignored easily enough to think that the statute was not meant to easily enough to think that the statute was not meant to have a practical effect. Consider that the principal drafts- have a practical effect. Consider that the principal drafts- man of the ATS was apparently Oliver Ellsworth, 13 pre- man of the ATS was apparently Oliver Ellsworth, 13 pre- viously a member of the Continental Congress that had viously a member of the Continental Congress that had passed the 1781 resolution and a member of the Connecticut passed the 1781 resolution and a member of the Connecticut Legislature that made good on that congressional request.

Legislature that made good on that congressional request.

See generally W. Brown, The Life of Oliver Ellsworth (1905).

Consider, too, that the First Congress was attentive enough Consider, too, that the First Congress was attentive enough to the law of nations to recognize certain offenses expressly to the law of nations to recognize certain offenses expressly as criminal, including the three mentioned by Blackstone. as criminal, including the three mentioned by Blackstone.

See An Act for the Punishment of Certain Crimes Against See An Act for the Punishment of Certain Crimes Against the United States, §8, 1 Stat. 113-114 (murder or robbery, the United States, §8, 1 Stat. 113-114 (murder or robbery, or other capital crimes, punishable as piracy if committed on or other capital crimes, punishable as piracy if committed on the high seas), and §28, id., at 118 (violation of safe conducts the high seas), and § 28, id., at 118 (violation of safe conducts and assaults against ambassadors punished by imprisonment and assaults against ambassadors punished by imprisonment and fines described as "infract[ions of] the law of nations"). and fines described as "infract[ions of] the law of nations").

It would have been passing strange for Ellsworth and this It would have been passing strange for Ellsworth and this very Congress to vest federal courts expressly with jurisdic- very Congress to vest federal courts expressly with jurisdic- tion to entertain civil causes brought by aliens alleging viola- tion to entertain civil causes brought by aliens alleging viola- tions of the law of nations, but to no effect whatever until tions of the law of nations, but to no effect whatever until the Congress should take further action. There is too much the Congress should take further action. There is too much in the historical record to believe that Congress would have in the historical record to believe that Congress would have enacted the ATS only to leave it lying fallow indefinitely. enacted the ATS only to leave it lying fallow indefinitely.

"sThe ATS appears in Ellsworth's handwriting in the original version of "The ATS appears in Ellsworth's handwriting in the original version of

the bill in the National Archives. Casto, Law of Nations 498, n. 169. the bill in the National Archives. Casto, Law of Nations 498, n. 169.

720 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

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The second inference to be drawn from the history is that The second inference to be drawn from the history is that Congress intended the ATS to furnish jurisdiction for a rela- Congress intended the ATS to furnish jurisdiction for a rela- tively modest set of actions alleging violations of the law of tively modest set of actions alleging violations of the law of nations. Uppermost in the legislative mind appears to have nations. Uppermost in the legislative mind appears to have been offenses against ambassadors, see id., at 118; violations been offenses against ambassadors, see id., at 118; violations of safe conduct were probably understood to be actionable, of safe conduct were probably understood to be actionable, ibid., and individual actions arising out of prize captures and ibid., and individual actions arising out of prize captures and piracy may well have also been contemplated, id., at 113-114.

piracy may well have also been contemplated, id., at 113-114.

But the common law appears to have understood only those But the common law appears to have understood only those three of the hybrid variety as definite and actionable, or at three of the hybrid variety as definite and actionable, or at any rate, to have assumed only a very limited set of claims. any rate, to have assumed only a very limited set of claims.

As Blackstone had put it, "offences against this law [of na- As Blackstone had put it, "offences against this law [of na- tions] are principally incident to whole states or nations," tions] are principally incident to whole states or nations," and not individuals seeking relief in court. 4 Commentar- and not individuals seeking relief in court. 4 Commentar- ies 68. ies 68.

4 4

The sparse contemporaneous cases and legal materials re- The sparse contemporaneous cases and legal materials re- ferring to the ATS tend to confirm both inferences, that ferring to the ATS tend to confirm both inferences, that some, but few, torts in violation of the law of nations were some, but few, torts in violation of the law of nations were understood to be within the common law.

In Bolchos v. understood to be within the common law. In Bolchos v.

Darrel, 3 F. Cas. 810 (No. 1,607) (SC 1795), the District Darrel, 3 F. Cas. 810 (No. 1,607) (SC 1795), the District Court's doubt about admiralty jurisdiction over a suit for Court's doubt about admiralty jurisdiction over a suit for damages brought by a French privateer against the mortga- damages brought by a French privateer against the mortga- gee of a British slave ship was assuaged by assuming that gee of a British slave ship was assuaged by assuming that the ATS was a jurisdictional basis for the court's action. the ATS was a jurisdictional basis for the court's action.

Nor is Moxon v. The Fanny, 17 F. Cas. 942 (No. 9,895) (Pa.

1793), to the contrary, a case in which the owners of a British 1793), to the contrary, a case in which the owners of a British ship sought damages for its seizure in United States waters ship sought damages for its seizure in United States waters by a French privateer. The District Court said in dictum by a French privateer. The District Court said in dictum that the ATS was not the proper vehicle for suit because "i]t that the ATS was not the proper vehicle for suit because lilt cannot be called a suit for a tort only, when the property, as cannot be called a suit for a tort only, when the property, as well as damages for the supposed trespass, are sought for." well as damages for the supposed trespass, are sought for."

Id., at 948. But the judge gave no intimation that further Id., at 948. But the judge gave no intimation that further legislation would have been needed to give the District legislation would have been needed to give the District Court jurisdiction over a suit limited to damages.

Court jurisdiction over a suit limited to damages.

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Then there was the 1795 opinion of Attorney General Wil- Then there was the 1795 opinion of Attorney General Wil- liam Bradford, who was asked whether criminal prosecution liam Bradford, who was asked whether criminal prosecution was available against Americans who had taken part in the was available against Americans who had taken part in the French plunder of a British slave colony in Sierra Leone. 1 French plunder of a British slave colony in Sierra Leone. 1 Op. Atty. Gen. 57. Bradford was uncertain, but he made it Op. Atty. Gen. 57. Bradford was uncertain, but he made it clear that a federal court was open for the prosecution of a clear that a federal court was open for the prosecution of a

tort action growing out of the episode:

"But there can be no doubt that the company or individ- "But there can be no doubt that the company or individ- uals who have been injured by these acts of hostility uals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United violation of the laws of nations, or a treaty of the United States . . .. " Id., at 59.

States ...." Id., at 59.

Although it is conceivable that Bradford (who had prose- Although it is conceivable that Bradford (who had prose- cuted in the Marbois incident, see Casto, Law of Nations 503, cuted in the Marbois incident, see Casto, Law of Nations 503,

n. 201) assumed that there had been a violation of a treaty,

1 Op. Atty. Gen., at 58, that is certainly not obvious, and it 1 Op. Atty. Gen., at 58, that is certainly not obvious, and it appears likely that Bradford understood the ATS to provide appears likely that Bradford understood the ATS to provide jurisdiction over what must have amounted to common law jurisdiction over what must have amounted to common law causes of action. causes of action.

B

Against these indications that the ATS was meant to un- Against these indications that the ATS was meant to un- derwrite litigation of a narrow set of common law actions derwrite litigation of a narrow set of common law actions derived from the law of nations, Sosa raises two main objec- derived from the law of nations, Sosa raises two main objec- tions. First, he claims that this conclusion makes no sense tions. First, he claims that this conclusion makes no sense in view of the Continental Congress's 1781 recommendation in view of the Continental Congress's 1781 recommendation to state legislatures to pass laws authorizing such suits. to state legislatures to pass laws authorizing such suits.

Sosa thinks state legislation would have been "absurd," Sosa thinks state legislation would have been "absurd," Reply Brief for Petitioner Sosa 5, if common law remedies Reply Brief for Petitioner Sosa 5, if common law remedies had been available. Second, Sosa juxtaposes Blackstone's had been available. Second, Sosa juxtaposes Blackstone's treatise mentioning violations of the law of nations as occa- treatise mentioning violations of the law of nations as occa- sions for criminal remedies, against the statute's innovative sions for criminal remedies, against the statute's innovative reference to "tort," as evidence that there was no familiar reference to "tort," as evidence that there was no familiar

722 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

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set of legal actions for exercise of jurisdiction under the ATS. set of legal actions for exercise of jurisdiction under the ATS.

Neither argument is convincing.

The notion that it would have been absurd for the Conti- The notion that it would have been absurd for the Conti- nental Congress to recommend that States pass positive law nental Congress to recommend that States pass positive law to duplicate remedies already available at common law rests to duplicate remedies already available at common law rests on a misunderstanding of the relationship between common on a misunderstanding of the relationship between common law and positive law in the late 18th century, when positive law and positive law in the late 18th century, when positive law was frequently relied upon to reinforce and give stand- law was frequently relied upon to reinforce and give stand- ard expression to the "brooding omnipresence" 14 of the com- ard expression to the "brooding omnipresence" 14 of the com- mon law then thought discoverable by reason. As Black- mon law then thought discoverable by reason. As Black- stone clarified the relation between positive law and the law stone clarified the relation between positive law and the law of nations, "those acts of parliament, which have from time of nations, "those acts of parliament, which have from time to time been made to enforce this universal law, or to facili- to time been made to enforce this universal law, or to facili- tate the execution of [its] decisions, are not to be considered tate the execution of [its] decisions, are not to be considered as introductive of any new rule, but merely as declaratory of as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilized world." 4 which it must cease to be a part of the civilized world." 4 Commentaries 67.

Indeed, Sosa's argument is undermined Commentaries 67. Indeed, Sosa's argument is undermined by the 1781 resolution on which he principally relies. Not- by the 1781 resolution on which he principally relies. Not- withstanding the undisputed fact (per Blackstone) that the withstanding the undisputed fact (per Blackstone) that the common law afforded criminal law remedies for violations of common law afforded criminal law remedies for violations of the law of nations, the Continental Congress encouraged the law of nations, the Continental Congress encouraged state legislatures to pass criminal statutes to the same effect, state legislatures to pass criminal statutes to the same effect, and the first Congress did the same, supra, at 719.15 and the first Congress did the same, supra, at 719. 15

14 See Southern Pacific Co. v. Jensen, 244 U. S. 205, 222 (1917) (Holmes, 14 See Southern Pacific Co. v. Jensen, 244 U. S. 205, 222 (1917) (Holmes,

J., dissenting). J, dissenting).

"I Being consistent with the prevailing understanding of international ", Being consistent with the prevailing understanding of international law, the 1781 resolution is sensibly understood as an act of international law, the 1781 resolution is sensibly understood as an act of international politics, for the recommendation was part of a program to assure the world politics, for the recommendation was part of a program to assure the world that the new Republic would observe the law of nations. On the same that the new Republic would observe the law of nations. On the same day it made its recommendation to state legislatures, the Continental Con- day it made its recommendation to state legislatures, the Continental Con- gress received a confidential report, detailing negotiations between Amer- gress received a confidential report, detailing negotiations between Amer- ican representatives and Versailles. 21 Journals of the Continental Con- ican representatives and Versailles. 21 Journals of the Continental Con- gress 1137-1140. The King was concerned about the British capture of gress 1137-1140. The King was concerned about the British capture of the ship Marquis de la Fayette on its way to Boston, id., at 1139, and he the ship Marquis de la Fayette on its way to Boston, id., at 1139, and he "expresse[d] a desire that the plan for the appointment of consuls should "expresse[d] a desire that the plan for the appointment of consuls should

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Nor are we convinced by Sosa's argument that legislation Nor are we convinced by Sosa's argument that legislation conferring a right of action is needed because Blackstone conferring a right of action is needed because Blackstone treated international law offenses under the rubric of "public treated international law offenses under the rubric of "public wrongs," whereas the ATS uses a word, "tort," that was rel- wrongs," whereas the ATS uses a word, "tort," that was rel- atively uncommon in the legal vernacular of the day. It is atively uncommon in the legal vernacular of the day. It is true that Blackstone did refer to what he deemed the three true that Blackstone did refer to what he deemed the three principal offenses against the law of nations in the course of principal offenses against the law of nations in the course of discussing criminal sanctions, observing that it was in the discussing criminal sanctions, observing that it was in the interest of sovereigns "to animadvert upon them with a be- interest of sovereigns "to animadvert upon them with a be- coming severity, that the peace of the world may be main- coming severity, that the peace of the world may be main- tained," 4 Commentaries 68.16 But Vattel explicitly linked tained," 4 Commentaries 68. 16 But Vattel explicitly linked

be digested and adopted, as the Court of France wished to make it the be digested and adopted, as the Court of France wished to make it the basis of some commercial arrangements between France and the United basis of some commercial arrangements between France and the United States," id., at 1140. The congressional resolution would not have been States," id., at 1140. The congressional resolution would not have been all that Louis XVI wished for, but it was calculated to assure foreign all that Louis XVI wished for, but it was calculated to assure foreign powers that Congress at least intended their concerns to be addressed in powers that Congress at least intended their concerns to be addressed in the way they would have chosen. As a French legal treatise well known the way they would have chosen. As a French legal treatise well known to early American lawyers, see Helmholz, Use of the Civil Law in Post- to early American lawyers, see Helmholz, Use of the Civil Law in Post- Revolutionary American Jurisprudence, 66 Tulane L. Rev. 1649 (1992), put Revolutionary American Jurisprudence, 66 Tulane L. Rev. 1649 (1992), put it, "the laws ought to be written, to the end that the writing may fix the it, "the laws ought to be written, to the end that the writing may fix the sense of the law, and determine the mind to conceive a just idea of that sense of the law, and determine the mind to conceive a just idea of that which is established by the law, and that it not [be] left free for every one which is established by the law, and that it not [be] left free for every one

." 1 J.

to frame the law as he himself is pleased to understand it ...." 1 J. to frame the law as he himself is pleased to understand it ....

Domat, The Civil Law in its Natural Order 108 (W. Strahan transl. and L.

Domat, The Civil Law in its Natural Order 108 (W. Strahan trans]. and L.

Cushing ed. 1861). A congressional statement that common law was up Cushing ed. 1861). A congressional statement that common law was up to the task at hand might well have fallen short of impressing a continen- to the task at hand might well have fallen short of impressing a continen- tal readership. tal readership.

1Petitioner says animadversion is "an archaic reference to the imposi- "'Petitioner says animadversion is "an archaic reference to the imposi- tion of punishment." Reply Brief for Petitioner Sosa 4 (emphasis in orig- tion of punishment." Reply Brief for Petitioner Sosa 4 (emphasis in orig- inal). That claim is somewhat exaggerated, however. To animadvert inal). That claim is somewhat exaggerated, however. To animadvert carried the broader implication of "turn[ing] the attention officially or carried the broader implication of "turn[ing] the attention officially or judicially, tak[ing] legal cognizance of anything deserving of chastisement judicially, tak[ing] legal cognizance of anything deserving of chastisement or censure; hence, to proceed by way of punishment or censure." 1 Ox- or censure; hence, to proceed by way of punishment or censure." 1 Ox- ford English Dictionary 474 (2d ed. 1989). Blackstone in fact used the ford English Dictionary 474 (2d ed. 1989). Blackstone in fact used the term in the context of property rights and damages. Of a man who is term in the context of property rights and damages. Of a man who is disturbed in his enjoyment of "qualified property" "the law will animad- disturbed in his enjoyment of "qualified property" "the law will animad- 2 Commentaries 395. See also 9 Papers of vert hereon as an injury."

vert hereon as an injury." 2 Commentaries 395. See also 9 Papers of James Madison 349 (R. Rutland ed. 1975) ("As yet foreign powers have not James Madison 349 (R. Rutland ed. 1975) ("As yet foreign powers have not been rigorous in animadverting on us" for violations of the law of nations). been rigorous in animadverting on us" for violations of the law of nations).

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the criminal sanction for offenses against ambassadors with the criminal sanction for offenses against ambassadors with the requirement that the state, "at the expense of the delin- the requirement that the state, "at the expense of the delin- quent, give full satisfaction to the sovereign who has been quent, give full satisfaction to the sovereign who has been offended in the person of his minister." Vattel 463-464. offended in the person of his minister." Vattel 463-464.

Cf. Stephens, Individuals Enforcing International Law: The Cf. Stephens, Individuals Enforcing International Law: The Comparative and Historical Context, 52 DePaul L. Rev. 433, Comparative and Historical Context, 52 DePaul L. Rev. 433, 444 (2002) (observing that a "mixed approach to international 444 (2002) (observing that a "mixed approach to international law violations, encompassing both criminal prosecution... law violations, encompassing both criminal prosecution ... and compensation to those injured through a civil suit, would and compensation to those injured through a civil suit, would have been familiar to the founding generation"). The 1781 have been familiar to the founding generation"). The 1781 resolution goes a step further in showing that a private rem- resolution goes a step further in showing that a private rem- edy was thought necessary for diplomatic offenses under the edy was thought necessary for diplomatic offenses under the law of nations. And the Attorney General's Letter of 1795, law of nations. And the Attorney General's Letter of 1795, as well as the two early federal precedents discussing the as well as the two early federal precedents discussing the ATS, point to a prevalent assumption that Congress did not ATS, point to a prevalent assumption that Congress did not intend the ATS to sit on the shelf until some future time intend the ATS to sit on the shelf until some future time when it might enact further legislation.

when it might enact further legislation.

In sum, although the ATS is a jurisdictional statute creat- In sum, although the ATS is a jurisdictional statute creat- ing no new causes of action, the reasonable inference from ing no new causes of action, the reasonable inference from the historical materials is that the statute was intended to the historical materials is that the statute was intended to have practical effect the moment it became law. The juris- have practical effect the moment it became law. The juris- dictional grant is best read as having been enacted on the dictional.grant is best read as having been enacted on the understanding that the common law would provide a cause understanding that the common law would provide a cause of action for the modest number of international law viola- of action for the modest number of international law viola- tions with a potential for personal liability at the time. tions with a potential for personal liability at the time.

IV

We think it is correct, then, to assume that the First Con- We think it is correct, then, to assume that the First Con- gress understood that the district courts would recognize gress understood that the district courts would recognize private causes of action for certain torts in violation of the private causes of action for certain torts in violation of the law of nations, though we have found no basis to suspect law of nations, though we have found no basis to suspect Congress had any examples in mind beyond those torts cor- Congress had any examples in mind beyond those torts cor- responding to Blackstone's three primary offenses: violation responding to Blackstone's three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, of safe conducts, infringement of the rights of ambassadors, and piracy. We assume, too, that no development in the two and piracy. We assume, too, that no development in the two centuries from the enactment of § 1350 to the birth of the centuries from the enactment of § 1350 to the birth of the

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modern line of cases beginning with Filartiga v. Pena-Irala, modern line of cases beginning with Filartiga v. Pena-Irala, 630 F. 2d 876 (CA2 1980), has categorically precluded federal 630 F. 2d 876 (CA2 1980), has categorically precluded federal courts from recognizing a claim under the law of nations as courts from recognizing a claim under the law of nations as an element of common law; Congress has not in any relevant an element of common law; Congress has not in any relevant way amended § 1350 or limited civil common law power by way amended § 1350 or limited civil common law power by another statute. Still, there are good reasons for a re- another statute. Still, there are good reasons for a re- strained conception of the discretion a federal court should strained conception of the discretion a federal court should exercise in considering a new cause of action of this kind. exercise in considering a new cause of action of this kind.

Accordingly, we think courts should require any claim based Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of inter- on the present-day law of nations to rest on a norm of inter- national character accepted by the civilized world and de- national character accepted by the civilized world and de- fined with a specificity comparable to the features of the fined with a specificity comparable to the features of the 18th-century paradigms we have recognized. This require- 18th-century paradigms we have recognized. This require- ment is fatal to Alvarez's claim. ment is fatal to Alvarez's claim.

A

A series of reasons argue for judicial caution when consid- A series of reasons argue for judicial caution when consid- ering the kinds of individual claims that might implement ering the kinds of individual claims that might implement the jurisdiction conferred by the early statute. First, the the jurisdiction conferred by the early statute. First, the prevailing conception of the common law has changed since prevailing conception of the common law has changed since 1789 in a way that counsels restraint in judicially applying 1789 in a way that counsels restraint in judicially applying internationally generated norms. When § 1350 was enacted, internationally generated norms. When § 1350 was enacted, the accepted conception was of the common law as "a tran- the accepted conception was of the common law as "a tran- scendental body of law outside of any particular State but scendental body of law outside of any particular State but obligatory within it unless and until changed by statute."

obligatory within it unless and until changed by statute."

Black and White Taxicab & Transfer Co. v. Brown and Yel- Black and White Taxicab & Transfer Co. v. Brown and Yel- low Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) low Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting). Now, however, in most cases where (Holmes, J, dissenting). Now, however, in most cases where a court is asked to state or formulate a common law principle a court is asked to state or formulate a common law principle in a new context, there is a general understanding that the in a new context, there is a general understanding that the law is not so much found or discovered as it is either made law is not so much found or discovered as it is either made or created. Holmes explained famously in 1881 that or created. Holmes explained famously in 1881 that

"in substance the growth of the law is legislative ... "in substance the growth of the law is legislative ... [because t]he very considerations which judges most [because t)he very considerations which judges most rarely mention, and always with an apology, are the se- rarely mention, and always with an apology, are the se- cret root from which the law draws all the juices of life. cret root from which the law draws all the juices of life.

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I mean, of course, considerations of what is expedient for I mean, of course, considerations of what is expedient for the community concerned." The Common Law 31-32 the community concerned." The Common Law 31-32 (Howe ed. 1963).

(Howe ed. 1963).

One need not accept the Holmesian view as far as its ultimate One need not accept the Holmesian view as far as its ultimate implications to acknowledge that a judge deciding in reliance implications to acknowledge that a judge deciding in reliance on an international norm will find a substantial element of on an international norm will find a substantial element of discretionary judgment in the decision. discretionary judgment in the decision.

Second, along with, and in part driven by, that conceptual Second, along with, and in part driven by, that conceptual development in understanding common law has come an development in understanding common law has come an equally significant rethinking of the role of the federal courts equally significant rethinking of the role of the federal courts in making it. Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), in making it. Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), was the watershed in which we denied the existence of any was the watershed in which we denied the existence of any federal "general" common law, id., at 78, which largely with- federal "general" common law, id., at 78, which largely with- drew to havens of specialty, some of them defined by express drew to havens of specialty, some of them defined by express congressional authorization to devise a body of law directly, congressional authorization to devise a body of law directly,

e. g., Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448

(1957) (interpretation of collective-bargaining agreements); (1957) (interpretation of collective-bargaining agreements); in federal- Fed. Rule Evid. 501 (evidentiary privileges Fed. Rule Evid. 501 (evidentiary privileges in federal- question cases). Elsewhere, this Court has thought it was question cases). Elsewhere, this Court has thought it was in order to create federal common law rules in interstitial in order to create federal common law rules in interstitial areas of particular federal interest. E. g., United States v. areas of particular federal interest. E. g., United States v.

Kimbell Foods, Inc., 440 U. S. 715, 726-727 (1979).17 And Kimbell Foods, Inc., 440 U. S. 715, 726-727 (1979). 17 And although we have even assumed competence to make judicial although we have even assumed competence to make judicial rules of decision of particular importance to foreign rela- rules of decision of particular importance to foreign rela- tions, such as the act of state doctrine, see Banco Nacional tions, such as the act of state doctrine, see Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 427 (1964), the general de Cuba v Sabbatino, 376 U. S. 398, 427 (1964), the general practice has been to look for legislative guidance before exer- practice has been to look for legislative guidance before exer- cising innovative authority over substantive law. It would cising innovative authority over substantive law. It would be remarkable to take a more aggressive role in exercising be remarkable to take a more aggressive role in exercising a jurisdiction that remained largely in shadow for much of a jurisdiction that remained largely in shadow for much of the prior two centuries.

the prior two centuries.

17 See generally R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's "See generally R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System, ch. 7 (5th ed. 2003); Friendly, The Federal Courts and the Federal System, ch. 7 (5th ed. 2003); Friendly, In Praise of Erie-and of the New Federal Common Law, 39 N. Y In Praise of Erie—and of the New Federal Common Law, 39 N. Y.

U. L. Rev. 383, 405-422 (1964).

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Third, this Court has recently and repeatedly said that a Third, this Court has recently and repeatedly said that a decision to create a private right of action is one better left decision to create a private right of action is one better left to legislative judgment in the great majority of cases. Cor- to legislative judgment in the great majority of cases. Cor- rectional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001); rectional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001); Alexander v. Sandoval, 532 U. S. 275, 286-287 (2001). The Alexander v. Sandoval, 532 U. S. 275, 286-287 (2001). The creation of a private right of action raises issues beyond the creation of a private right of action raises issues beyond the mere consideration whether underlying primary conduct mere consideration whether underlying primary conduct should be allowed or not, entailing, for example, a decision should be allowed or not, entailing, for example, a decision to permit enforcement without the check imposed by prose- to permit enforcement without the check imposed by prose- cutorial discretion. Accordingly, even when Congress has cutorial discretion. Accordingly, even when Congress has made it clear by statute that a rule applies to purely domes- made it clear by statute that a rule applies to purely domes- tic conduct, we are reluctant to infer intent to provide a pri- tic conduct, we are reluctant to infer intent to provide a pri- vate cause of action where the statute does not supply one vate cause of action where the statute does not supply one expressly. While the absence of congressional action ad- expressly. While the absence of congressional action ad- dressing private rights of action under an international norm dressing private rights of action under an international norm is more equivocal than its failure to provide such a right is more equivocal than its failure to provide such a right when it creates a statute, the possible collateral conse- when it creates a statute, the possible collateral conse- quences of making international rules privately actionable quences of making international rules privately actionable argue for judicial caution.

argue for judicial caution.

Fourth, the subject of those collateral consequences is it- Fourth, the subject of those collateral consequences is it- self a reason for a high bar to new private causes of action self a reason for a high bar to new private causes of action for violating international law, for the potential implications for violating international law, for the potential implications for the foreign relations of the United States of recognizing for the foreign relations of the United States of recognizing such causes should make courts particularly wary of imping- such causes should make courts particularly wary of imping- ing on the discretion of the Legislative and Executive ing on the discretion of the Legislative and Executive Branches in managing foreign affairs. It is one thing for Branches in managing foreign affairs. It is one thing for American courts to enforce constitutional limits on our own American courts to enforce constitutional limits on our own State and Federal Governments' power, but quite another to State and Federal Governments' power, but quite another to consider suits under rules that would go so far as to claim a consider suits under rules that would go so far as to claim a limit on the power of foreign governments over their own limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agent citizens, and to hold that a foreign government or its agent has transgressed those limits. Cf. Sabbatino, supra, at 431- has transgressed those limits. Cf. Sabbatino, supra, at 431-

432. Yet modern international law is very much concerned

with just such questions, and apt to stimulate calls for vindi- with just such questions, and apt to stimulate calls for vindi- cating private interests in § 1350 cases. Since many at- cating private interests in § 1350 cases. Since many at- tempts by federal courts to craft remedies for the violation tempts by federal courts to craft remedies for the violation

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of new norms of international law would raise risks of ad- of new norms of international law would raise risks of ad- verse foreign policy consequences, they should be under- verse foreign policy consequences, they should be under- taken, if at all, with great caution. Cf. Tel-Oren v. Libyan taken, if at all, with great caution. Cf. Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 813 (CADC 1984) (Bork, J., Arab Republic, 726 F. 2d 774, 813 (CADC 1984) (Bork, J., concurring) (expressing doubt that § 1350 should be read to concurring) (expressing doubt that § 1350 should be read to require "our courts [to] sit in judgment of the conduct of require "our courts [to] sit in judgment of the conduct of foreign officials in their own countries with respect to their foreign officials in their own countries with respect to their own citizens"). own citizens").

The fifth reason is particularly important in light of the The fifth reason is particularly important in light of the first four. We have no congressional mandate to seek out first four. We have no congressional mandate to seek out and define new and debatable violations of the law of nations, and define new and debatable violations of the law of nations, and modern indications of congressional understanding of and modern indications of congressional understanding of the judicial role in the field have not affirmatively encour- the judicial role in the field have not affirmatively encour- aged greater judicial creativity. It is true that a clear man- aged greater judicial creativity. It is true that a clear man- date appears in the Torture Victim Protection Act of 1991, date appears in the Torture Victim Protection Act of 1991, 106 Stat. 73, providing authority that "establish[es] an unam- 106 Stat. 73, providing authority that "establish[es] an unam- biguous and modern basis for" federal claims of torture and biguous and modern basis for" federal claims of torture and extrajudicial killing, H. R. Rep. No. 102-367, pt. 1, p. 3 (1991).

extrajudicial killing, H. R. Rep. No. 102-367, pt. 1, p. 3 (1991).

But that affirmative authority is confined to specific subject But that affirmative authority is confined to specific subject matter, and although the legislative history includes the re- matter, and although the legislative history includes the re- mark that § 1350 should "remain intact to permit suits based mark that § 1350 should "remain intact to permit suits based on other norms that already exist or may ripen in the future on other norms that already exist or may ripen in the future into rules of customary international law," id., at 4, Congress into rules of customary international law," id., at 4, Congress as a body has done nothing to promote such suits. Several as a body has done nothing to promote such suits. Several times, indeed, the Senate has expressly declined to give the times, indeed, the Senate has expressly declined to give the federal courts the task of interpreting and applying interna- federal courts the task of interpreting and applying interna- tional human rights law, as when its ratification of the Inter- tional human rights law, as when its ratification of the Inter- national Covenant on Civil and Political Rights declared that national Covenant on Civil and Political Rights declared that the substantive provisions of the document were not self- the substantive provisions of the document were not self- executing. 138 Cong. Rec. 8071 (1992).

executing. 138 Cong. Rec. 8071 (1992).

B

These reasons argue for great caution in adapting the law These reasons argue for great caution in adapting the law of nations to private rights. JUSTICE SCALIA, post, p. 739 of nations to private rights. JUSTICE SCALIA, post, p. 739 (opinion concurring in part and concurring in judgment), con- (opinion concurring in part and concurring in judgment), con- cludes that caution is too hospitable, and a word is in order cludes that caution is too hospitable, and a word is in order

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to summarize where we have come so far and to focus our to summarize where we have come so far and to focus our difference with him on whether some norms of today's law difference with him on whether some norms of today's law of nations may ever be recognized legitimately by federal of nations may ever be recognized legitimately by federal courts in the absence of congressional action beyond § 1350. courts in the absence of congressional action beyond § 1350.

All Members of the Court agree that § 1350 is only jurisdic- All Members of the Court agree that § 1350 is only jurisdic- tional. We also agree, or at least JUSTICE SCALIA does not tional. We also agree, or at least JUSTICE SCALIA does not dispute, post, at 739, 744, that the jurisdiction was originally dispute, post, at 739, 744, that the jurisdiction was originally understood to be available to enforce a small number of in- understood to be available to enforce a small number of in- ternational norms that a federal court could properly recog- ternational norms that a federal court could properly recog- nize as within the common law enforceable without further nize as within the common law enforceable without further statutory authority. JUSTICE SCALIA concludes, however, statutory authority. JUSTICE SCALIA concludes, however, that two subsequent developments should be understood to that two subsequent developments should be understood to preclude federal courts from recognizing any further inter- preclude federal courts from recognizing any further inter- national norms as judicially enforceable today, absent further national norms as judicially enforceable today, absent further congressional action. As described before, we now tend to congressional action. As described before, we now tend to understand common law not as a discoverable reflection of understand common law not as a discoverable reflection of universal reason but, in a positivistic way, as a product of universal reason but, in a positivistic way, as a product of human choice. And we now adhere to a conception of lim- human choice. And we now adhere to a conception of lim- ited judicial power first expressed in reorienting federal di- ited judicial power first expressed in reorienting federal di- versity jurisdiction, see Erie R. Co. v. Tompkins, 304 U. S.

versity jurisdiction, see Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), that federal courts have no authority to derive 64 (1938), that federal courts have no authority to derive "general" common law. "general" common law.

Whereas JUSTICE SCALIA sees these developments as suf- Whereas JUSTICE SCALIA sees these developments as suf- ficient to close the door to further independent judicial recog- ficient to close the door to further independent judicial recog- nition of actionable international norms, other considerations nition of actionable international norms, other considerations persuade us that the judicial power should be exercised on persuade us that the judicial power should be exercised on the understanding that the door is still ajar subject to vigi- the understanding that the door is still ajar subject to vigi- lant doorkeeping, and thus open to a narrow class of interna- lant doorkeeping, and thus open to a narrow class of interna- tional norms today. Erie did not in terms bar any judicial tional norms today. Erie did not in terms bar any judicial recognition of new substantive rules, no matter what the cir- recognition of new substantive rules, no matter what the cir- cumstances, and post-Erie understanding has identified lim- cumstances, and post-Erie understanding has identified lim- ited enclaves in which federal courts may derive some sub- ited enclaves in which federal courts may derive some sub- stantive law in a common law way. For two centuries we stantive law in a common law way. For two centuries we have affirmed that the domestic law of the United States have affirmed that the domestic law of the United States recognizes the law of nations. See, e. g., Sabbatino, 376 recognizes the law of nations. See, e. g., Sabbatino, 376

U. S., at 423 ("[I]t is, of course, true that United States

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courts apply international law as a part of our own in appro- courts apply international law as a part of our own in appro- priate circumstances"); '8 The Paquete Habana, 175 U. S., at priate circumstances"); 11 The Paquete Habana, 175 U. S., at 700 ("International law is part of our law, and must be ascer- 700 ("International law is part of our law, and must be ascer- tained and administered by the courts of justice of appro- tained and administered by the courts of justice of appro- priate jurisdiction, as often as questions of right depending priate jurisdiction, as often as questions of right depending upon it are duly presented for their determination"); The upon it are duly presented for their determination"); The Nereide, 9 Cranch 388, 423 (1815) (Marshall, C. J.) ("[T]he Nereide, 9 Cranch 388, 423 (1815) (Marshall, C. J.) ("[T]he Court is bound by the law of nations which is a part of the Court is bound by the law of nations which is a part of the law of the land"); see also Texas Industries, Inc. v. Radcliff law of the land"); see also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 641 (1981) (recognizing that Materials, Inc., 451 U. S. 630, 641 (1981) (recognizing that "international disputes implicating ... our relations with for- "international disputes implicating ... our relations with for- eign nations" are one of the "narrow areas" in which "federal eign nations" are one of the "narrow areas" in which "federal common law" continues to exist).

It would take some ex- common law" continues to exist). It would take some ex- plaining to say now that federal courts must avert their gaze plaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect entirely from any international norm intended to protect individuals. individuals.

We think an attempt to justify such a position would be We think an attempt to justify such a position would be particularly unconvincing in light of what we know about particularly unconvincing in light of what we know about congressional understanding bearing on this issue lying at congressional understanding bearing on this issue lying at the intersection of the judicial and legislative powers. -The the intersection of the judicial and legislative powers. - The First Congress, which reflected the understanding of the First Congress, which reflected the understanding of the framing generation and included some of the Framers, as- framing generation and included some of the Framers, as- sumed that federal courts could properly identify some inter- sumed that federal courts could properly identify some inter- national norms as enforceable in the exercise of § 1350 juris- national norms as enforceable in the exercise of § 1350 juris- diction. We think it would be unreasonable to assume that diction. We think it would be unreasonable to assume that the First Congress would have expected federal courts to the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysi- simply because the common law might lose some metaphysi- cal cachet on the road to modern realism. Later Congresses cal cachet on the road to modern realism. Later Congresses

8 Sabbatino itself did not directly apply international law, see 376 U. S., 18 Sabbatino itself did not directly apply international law, see 376 U. S., at 421-423, but neither did it question the application of that law in appro- at 421-423, but neither did it question the application of that law in appro- priate cases, and it further endorsed the reasoning of a noted commentator priate cases, and it further endorsed the reasoning of a noted commentator who had argued that Erie should not preclude the continued application who had argued that Erie should not preclude the continued application of international law in federal courts, 376 U. S., at 425 (citing Jessup, The of international law in federal courts, 376 U. S., at 425 (citing Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J. Int'l L. 740 (1939)).

Am. J. Int'1 L. 740 (1939)).

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seem to have shared our view. The position we take today seem to have shared our view. The position we take today has been assumed by some federal courts for 24 years, ever has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga v. Pena-Irala, 630 since the Second Circuit decided Filartiga v. Pena-Irala, 630

F. 2d 876 (CA2 1980), and for practical purposes the point of

today's disagreement has been focused since the exchange today's disagreement has been focused since the exchange between Judge Edwards and Judge Bork in Tel-Oren v. Lib- between Judge Edwards and Judge Bork in Tel-Oren v. Lib- yan Arab Republic, 726 F. 2d 774 (CADC 1984). Congress, yan Arab Republic, 726 F. 2d 774 (CADC 1984). Congress, however, has not only expressed no disagreement with our however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legisla- responded to its most notable instance by enacting legisla- tion supplementing the judicial determination in some detail. tion supplementing the judicial determination in some detail.

See supra, at 728 (discussing the Torture Victim Protection See supra, at 728 (discussing the Torture Victim Protection Act).

Act).

While we agree with JUSTICE SCALIA to the point that While we agree with JUSTICE SCALIA to the point that we would welcome any congressional guidance in exercising we would welcome any congressional guidance in exercising jurisdiction with such obvious potential to affect foreign rela- jurisdiction with such obvious potential to affect foreign rela- tions, nothing Congress has done is a reason for us to shut tions, nothing Congress has done is a reason for ús to shut the door to the law of nations entirely. It is enough to say the door to the law of nations entirely. It is enough to say that Congress may do that at any time (explicitly, or implic- that Congress may do that at any time (explicitly, or implic- itly by treaties or statutes that occupy the field), just as it itly by treaties or statutes that occupy the field), just as it may modify or cancel any judicial decision so far as it rests may modify or cancel any judicial decision so far as it rests on recognizing an internatiohal norm as such.19 on recognizing an international norm as such. 19

C

We must still, however, derive a standard or set of stand- We must still, however, derive a standard or set of stand- ards for assessing the particular claim Alvarez raises, and ards for assessing the particular claim Alvarez raises, and

19 Our position does not, as JUSTICE SCALIA suggests, imply that every 19 Our position does not, as JUSTICE SCALIA suggests, imply that every grant of jurisdiction to a federal court carries with it an opportunity to grant of jurisdiction to a federal court carries with it an opportunity to develop common law (so that the grant of federal-question jurisdiction develop common law (so that the grant of federal-question jurisdiction would be equally as good for our purposes as § 1350), see post, at 745, n. would be equally as good for our purposes as § 1350), see post, at 745, n.

Section 1350 was enacted on the congressional understanding that courts Section 1350 was enacted on the congressional understanding that courts would exercise jurisdiction by entertaining some common law claims de- would exercise jurisdiction by entertaining some common law claims de- rived from the law of nations; and we know of no reason to think that rived from the law of nations; and we know of no reason to think that federal-question jurisdiction was extended subject to any comparable con- federal-question jurisdiction was extended subject to any comparable con- gressional assumption. Further, our holding today is consistent with the gressional assumption. Further, our holding today is consistent with the division of responsibilities between federal and state courts after Erie, division of responsibilities between federal and state courts after Erie, see supra, at 726, 729-730, as a more expansive common law power related see supra, at 726, 729-730, as a more expansive common law power related to 28 U. S. C. § 1331 might not be.

to 28 U. S. C. § 1331 might not be.

732 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

Opinion of the Court Opinion of the Court

for this action it suffices to look to the historical antecedents. for this action it suffices to look to the historical antecedents.

Whatever the ultimate criteria for accepting a cause of ac- Whatever the ultimate criteria for accepting a cause of ac- tion subject to jurisdiction under § 1350, we are persuaded tion subject to jurisdiction under § 1350, we are persuaded that federal courts should not recognize private claims under that federal courts should not recognize private claims under federal common law for violations of any international law federal common law for violations of any international law norm with less definite content and acceptance among civi- norm with less definite content and acceptance among civi- lized nations than the historical paradigms familiar when lized nations than the historical paradigms familiar when § 1350 was enacted. See, e.g., United States v. Smith, 5 § 1350 was enacted. See, e.g., United States v. Smith, 5 Wheat. 153, 163-180, n. a (1820) (illustrating the specificity Wheat.

153, 163-180, n. a (1820) (illustrating the specificity with which the law of nations defined piracy). This limit with which the law of nations defined piracy). This limit upon judicial recognition is generally consistent with the rea- upon judicial recognition is generally consistent with the rea- soning of many of the courts and judges who faced the issue soning of many of the courts and judges who faced the issue before" it reached this Court. See Filartiga, supra, at 890 before it reached this Court.

See Filartiga, supra, at 890 ("[F]or purposes of civil liability, the torturer has become- ("[Flor purposes of civil liability, the torturer has become— like the pirate and slave trader before him-hostis humani like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind"); Tel-Oren, supra, at 781 generis, an enemy of all mankind"); Tel-Oren, supra, at 781 (Edwards, J., concurring) (suggesting that the "limits of sec- (Edwards, J., concurring) (suggesting that the "limits of sec- tion 1350's reach" be defined by "a handful of heinous ac- tion 1350's reach" be defined by "a handful of heinous ac- tions-each of which violates definable, universal and obliga- tions—each of which violates definable, universal and obliga- tory norms"); see also In re Estate of Marcos Human Rights tory norms"); see also In re Estate of Marcos Human Rights Litigation, 25 F.

3d 1467, 1475 (CA9 1994) ("Actionable vio- Litigation, 25 F. 3d 1467, 1475 (CA9 1994) ("Actionable vio- lations of international law must be of a norm that is spe- lations of international law must be of a norm that is spe- cific, universal, and obligatory"). And the determination cific, universal, and obligatory"). And the determination whether a norm is sufficiently definite to support a cause whether a norm is sufficiently definite to support a cause of action 20 should (and, indeed, inevitably must) involve an of action 20 should (and, indeed, inevitably -must) involve an element of judgment about the practical consequences of element of judgment about the practical consequences of

10 A related consideration is whether international law extends the scope 20 A related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual. if the defendant is a private actor such as a corporation or individual.

Compare Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 791-795 (CADC Compare Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774,791-795 (CADC 1984) (Edwards, J., concurring) (insufficient consensus in 1984 that torture 1984) (Edwards, J., concurring) (insufficient consensus in 1984 that torture by private actors violates international law), with Kadic v. Karadlid, 70 by private actors violates international law), with Kadic v. Karadzid, 70

F. 3d 232, 239-241 (CA2 1995) (sufficient consensus in 1995 that genocide

by private actors violates international law). by private actors violates international law).

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733

Opinion of the Court Opinion of the Court

making that cause available to litigants in the federal making that cause available to litigants in the federal courts .21 courts.2'

Thus, Alvarez's detention claim must be gauged against Thus, Alvarez's detention claim must be gauged against the current state of international law, looking to those the current state of international law, looking to those sources we have long, albeit cautiously, recognized. sources we have long, albeit cautiously, recognized.

21 This requirement of clear definition is not meant to be the only princi- 21 This requirement of clear definition is not meant to be the only princi- ple limiting the availability of relief in the federal courts for violations of ple limiting the availability of relief in the federal courts for violations' of customary international law, though it disposes of this action. For exam- customary international law, though it disposes of this action. For exam- ple, the European Commission argues as amicus curiae that basic princi- ple, the European Commission argues as amicus curiae that basic princi- ples of international law require that before asserting a claim in a foreign ples of international law require that before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the forum, the claimant must have exhausted any remedies available in the domestic legal system, and perhaps in other forums such as international domestic legal system, and perhaps in other forums such as international claims tribunals. See Brief for European Commission as Amicus Curiae claims tribunals. See Brief for European Commission as Amicus Curiae 24, n. 54 (citing I. Brownlie, Principles of Public International Law 472-481 24, n. 54 (citing I. Brownlie, Principles of Public International Law 472-481 (6th ed. 2003)); cf. Torture Victim Protection Act of 1991, § 2(b), 106 Stat.

(6th ed. 2003)); cf. Torture Victim Protection Act of 1991, § 2(b), 106 Stat.

73 (exhaustion requirement). We would certainly consider this require- 73 (exhaustion requirement). We would certainly consider this require- ment in an appropriate case. ment in an appropriate case.

Another possible limitation that we need not apply here is a policy of Another possible limitation that we need not apply here is a policy of case-specific deference to the political branches. For example, there are case-specific deference to the political branches. For example, there are now pending in Federal District Court several class actions seeking dam- now pending in Federal District Court several class actions seeking dam- ages from various corporations alleged to have participated in, or abetted, ages from various corporations alleged to have participated in, or abetted, the regime of apartheid that formerly controlled South Africa. See In re the regime of apartheid that formerly controlled South Africa. See In re South African Apartheid Litigation, 238 F. Supp. 2d 1379 (JPML 2002) South African Apartheid Litigation, 238 F. Supp. 2d 1379 (JPML 2002) (granting a motion to transfer the cases to the Southern District of New (granting a motion to transfer the cases to the Southern District of New York). The Government of South Africa has said that these cases inter- York). The Government of South Africa has said that these cases inter- fere with the policy embodied by its Truth and Reconciliation Commission, fere with the policy embodied by its Truth and Reconciliation Commission, which "deliberately avoided a 'victors' justice' approach to the crimes of which "deliberately avoided a `victors' justice' approach to the crimes of apartheid and chose instead one based on confession and absolution, in- apartheid and chose instead one based on confession and absolution, in- formed by the principles of reconciliation, reconstruction, reparation and formed by the principles of reconciliation, reconstruction, reparation and goodwill." Declaration of Penuell Mpapa Maduna, Minister of Justice and goodwill." Declaration of Penuell Mpapa Maduna, Minister of Justice and Constitutional Development, Republic of South Africa, reprinted in App.

Constitutional Development, Republic of South Africa, reprinted in App. to Brief for Government of Commonwealth of Australia et al. as Amici to Brief for Government of Commonwealth of Australia et al. as Amici Curiae 7a, 3.2.1 (emphasis deleted). The United States has agreed.

Curiae 7a, ¶ 3.2.1 (emphasis deleted). The United States has agreed.

See Letter of William H. Taft IV, Legal Adviser, Dept. of State, to Shan- See Letter of William H. Taft IV, Legal Adviser, Dept. of State, to Shan- nen W. Coffin, Deputy Asst. Atty. Gen., Oct. 27, 2003, reprinted in id., at nen W. Coffin, Deputy Asst. Atty. Gen., Oct. 27, 2003, reprinted in id., at 2a. In such cases, there is a strong argument that federal courts should 2a. In such cases, there is a strong argument that federal courts should give serious weight to the Executive Branch's view of the case's impact give serious weight to the Executive Branch's view of the case's impact on foreign policy. " Cf. Republic of Austria v. Altmann, 541 U. S. 677, on foreign policy. ' Cf. Republic of Austria v. Altmann, 541 U. S. 677, 701-702 (2004) (discussing the State Department's use of statements of 701-702 (2004) (discussing the State Department's use of statements of interest in cases involving the Foreign Sovereign Immunities Act of 1976, interest in cases involving the Foreign Sovereign Immunities Act of 1976, 28 U. S. C. § 1602 et seq.).

28 U. S. C. § 1602 et seq.).

734 SOSA v. ALVAREZ-MACHAIN

SOSA v. ALVAREZ-MALHAIN

Opinion of the Court Opinion of the Court

"[W]here there is no treaty, and no controlling executive "[W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commenta- evidence of these, to the works of jurists and commenta-, tors, who by years of labor, research and experience, tors, who by years of labor, research and experience, have made themselves peculiarly well acquainted with have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are re- the subjects of which they treat. Such works are re- sorted to by judicial tribunals, not for the speculations sorted to by judicial tribunals, not for the speculations of their authors concerning what the law. ought to be, of their authors concerning what the law. ought to be, but for trustworthy evidence of what the law really is."

but for trustworthy evidence of what the law really is."

The Paquete Habana, 175 U. S., at 700.

To begin with, Alvarez cites two well-known international To begin with, Alvarez cites two well-known international agreements that, despite their moral authority, have little agreements that, despite their moral authority, have little utility under the standard set out in this opinion. He says utility under the standard set out in this opinion. He says that his abduction by Sosa was an "arbitrary arrest" within that his abduction by Sosa was an "arbitrary arrest" within the meaning of the Universal Declaration of Human Rights the meaning of the Universal Declaration of Human Rights (Declaration), G. A. Res. 217A (1II), U. N. Doc. A/810 (1948).

(Declaration), G. A. Res. 217A (III), U. N. Doc. A/810 (1948).

And he traces the rule against arbitrary arrest not only to And he traces the rule against arbitrary arrest not only to the Declaration, but also to article nine of the International the Declaration, but also to article nine of the International Covenant on Civil and Political Rights (Covenant), Dec. 16, Covenant on Civil and Political Rights (Covenant), Dec. 16, 1966, 999 U. N. T. S. 171,22 to which the United States is a 1966, 999 U. N. T. S. 171,22 to which the United States is a party, and to various other conventions to which it is not. party, and to various other conventions to which it is not.

But the Declaration does not of its own force impose obliga- But the Declaration does not of its own force impose obliga- tions as a matter of international law. See Humphrey, The tions as a matter of international law. See Humphrey, The UN Charter and the Universal Declaration of Human Rights, UN Charter and the Universal Declaration of Human Rights, in The International Protection of Human Rights 39, 50 in The International Protection of Human Rights 39, 50 (E. Luard ed. 1967) (quoting Eleanor Roosevelt calling the (E. Luard ed. 1967) (quoting Eleanor Roosevelt calling the Declaration "'a statement of principles ... setting up a com- Declaration "'a statement of principles ... setting up a com- mon standard of achievement for all peoples and all nations' mon standard of achievement for all peoples and all nations "'

2 Article nine provides that "[n]o one shall be subjected to arbitrary "Article nine provides that "[n]o one shall be subjected to arbitrary arrest or detention," that "[n]o one shall be deprived of his liberty except arrest or detention," that "[n]o one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established on such grounds and in accordance with such procedure as are established by law," and that "[a]nyone who has been the victim .of unlawful arrest by law," and that "[a]nyone who has been the victim -of unlawful arrest or detention shall have an enforceable right to compensation."

999

or detention shall have an enforceable right to compensation." 999

U. N. T. S., at 175-176.

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735

Opinion of the Court Opinion of the Court

and "'not a treaty or international agreement ... impos[ing] and "`not a treaty or international agreement ... impos[ing] legal obligations'"). 23 And, although the Covenant does legal obligations "' ). 23 And, although the Covenant does bind the United States as a matter of international law, the bind the United States as a matter of international law, the United States ratified the Covenant on the express under- United States ratified the Covenant on the express under- standing that it was not self-executing and so did not itself standing that it was not self-executing and so did not itself create obligations enforceable in the federal courts. See create obligations enforceable in the federal courts. See supra, at 728. Accordingly, Alvarez cannot say that the supra, at 728. Accordingly, Alvarez cannot say that the Declaration and Covenant themselves establish the relevant Declaration and Covenant themselves establish the relevant and applicable rule of international law. He instead at- and applicable rule of international law. He instead at- tempts to show that prohibition of arbitrary arrest has at- tempts to show that prohibition of arbitrary arrest has at- tained the status of binding customary international law.

tained the status of binding customary international law.

Here, it is useful to examine Alvarez's complaint in greater Here, it is useful to examine Alvarez's complaint in greater detail. As he presently argues it, the claim does not rest on detail. As he presently argues it, the claim does not rest on the cross-border feature of his abduction.24 Although the the cross-border feature of his abduction. 24 Although the District Court granted relief in part on finding a violation of District Court granted relief in part on finding a violation of international law in taking Alvarez across the border from international law in taking Alvarez across the border from Mexico to the United States, the Court of Appeals rejected Mexico to the United States, the Court of Appeals rejected that ground of liability for failure to identify a norm of requi- that ground of liability for failure to identify a norm of requi- site force prohibiting a forcible abduction across a border.

site force prohibiting a forcible abduction across a border..

Instead, it relied on the conclusion that the law of the United Instead, it relied on the conclusion that the law of the United States did not authorize Alvarez's arrest, because the DEA States did not authorize Alvarez's arrest, because the DEA lacked extraterritorial authority under 21 U. S. C. § 878, and lacked extraterritorial authority under 21 U. S. C. § 878, and because Federal Rule of Criminal Procedure 4(d)(2) limited because Federal Rule of Criminal Procedure 4(d)(2) limited the warrant for Alvarez's arrest to "the jurisdiction of the the warrant for Alvarez's arrest to "the jurisdiction of the United States. ' 25 It is this position that Alvarez takes now: United States. "25 It is this position that Alvarez takes now:

2 It has nevertheless had substantial indirect effect on international law. I It has nevertheless had substantial indirect effect on international law.

See Brownlie, supra, at 535 (calling the Declaration a "good example of an See Brownlie, supra, at 535 (calling the Declaration a "good example of an informal prescription given legal significance by the actions of authorita- informal prescription given legal significance by the actions of authorita- tive decision-makers"). tive decision-makers").

24Alvarez's brief contains one footnote seeking to incorporate by refer- 24 Alvarez's brief contains one footnote seeking to incorporate by refer- ence his arguments on cross-border abductions before the Court of Ap- ence his arguments on cross-border abductions before the Court of Ap- peals. Brief for Respondent Alvarez-Machain 47, n. 46. That is not peals. Brief for Respondent Alvarez-Machain 47, n. 46. That is not enough to raise the question fairly, and we do not consider it. enough to raise the question fairly, and we do not consider it.

25The Rule has since been moved and amended and now provides that 25 The Rule has since been moved and amended and now provides that a warrant may also be executed "anywhere else a federal statute author- a warrant may also be executed "anywhere else a federal statute author- izes an arrest." Fed. Rule Crim. Proc. 4(c)(2). izes an arrest." Fed. Rule Crim. Proc. 4(c)(2).

736 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

Opinion of the Court Opinion of the Court

that his arrest was arbitrary and as such forbidden by inter- that his arrest was arbitrary and as such forbidden by inter- national law not because it infringed the prerogatives of national law not because it infringed the prerogatives of Mexico, but because no applicable law authorized it.26 Mexico, but because no applicable law authorized it.26

Alvarez thus invokes a general prohibition of "arbitrary" Alvarez thus invokes a general prohibition of "arbitrary" detention defined as officially sanctioned action exceed- detention defined as officially sanctioned action exceed- ing positive authorization to detain under the domestic law ing positive authorization to detain under the domestic law of some government, regardless of the circumstances. of some government, regardless of the circumstances.

Whether or not this is an accurate reading of the Covenant, Whether or not this is an accurate reading of the Covenant, Alvarez cites little authority that a rule so broad has the Alvarez cites little authority that a rule so broad has the status of a binding customary norm today.27 He certainly status of a binding customary norm today.27 He certainly cites nothing to justify the federal courts in taking his broad cites nothing to justify the federal courts in taking his broad rule as the predicate for a federal lawsuit, for its implications rule as the predicate for a federal lawsuit, for its implications would be breathtaking. His rule would support a cause of would be breathtaking. His rule would support a cause of action in federal court for any arrest, anywhere in the world, action in federal court for any arrest, anywhere in the world, unauthorized by the law of the jurisdiction in which it took unauthorized by the law of the jurisdiction in which it took place, and would create a cause of action for any seizure of place, and would create a cause of action for any seizure of an alien in violation of the Fourth Amendment, supplanting an alien in violation of the Fourth Amendment, supplanting the actions under Rev. Stat. § 1979, 42 U. S. C. § 1983, and the actions under Rev. Stat. § 1979, 42 U. S. C. § 1983, and

26We have no occasion to decide whether Alvarez is right that 21 U. S. C.

26 We have no occasion to decide whether Alvarez is right that 21 U. S. C.

§ 878 did not authorize the arrest. § 878 did not authorize the arrest.

2 Specifically, he relies on a survey of national constitutions, Bassiouni, 21 Specifically, he relies on a survey of national constitutions, Bassiouni, Human Rights in the Context of Criminal Justice: Identifying Interna- Human Rights in the Context of Criminal Justice: Identifying Interna- tional Procedural Protections and Equivalent Protections in National Con- tional Procedural Protections and Equivalent Protections in National Con- stitutions, 3 Duke J. Comp. & Int'l L. 235, 260-261 (1993); a case from the stitutions, 3 Duke J. Comp. & Int'1 L. 235, 260-261 (1993); a case from the International Court of Justice, United States v. Iran, 1980 I. C. J. 3, 42; and International Court of Justice, United States v. Iran, 1980 I. C. J. 3, 42; and some authority drawn from the federal courts, see Brief for Respondent some authority drawn from the federal courts, see Brief for Respondent Alvarez-Machan 49, n. 50. None of these suffice. The Bassiouni survey Alvarez-Machain 49, n. 50. None of these suffice. The Bassiouni survey does show that many nations recognize a norm against arbitrary deten- does show that many nations recognize a norm against arbitrary deten- tion, but that consensus is at a high level of generality. The Iran case, in tion, but that consensus is at a high level of generality. The Iran case, in which the United States sought relief for the taking of its diplomatic and which the United States sought relief for the taking of its diplomatic and consular staff as hostages, involved a different set of international norms consular staff as hostages, involved a different set of international norms and mentioned the problem of arbitrary detention only in passing; the and mentioned the problem of arbitrary detention only in passing; the detention in that case was, moreover, far longer and harsher than Alvar- detention in that case was, moreover, far longer and harsher than Alvar- ez's. See 1980 I. C. J., at 42, 91 ("detention of [United States] staff by a ez's. See 1980 1. C. J, at 42, ¶ 91 ("detention of (United States] staff by a group of armed militants" lasted '"many months"). And the authority group of armed militants" lasted "many months"). And the authority from the federal courts, to the extent it supports Alvarez's position, re- from the federal courts, to the extent it supports Alvarez's position, re- flects a more assertive view of federal judicial discretion over claims based flects a more assertive view of federal judicial discretion over claims based on customary international law than the position we take today.

on customary international law than the position we take today.

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737

Opinion of the Court Opinion of the Court

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 Bivens v Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), that now provide damages remedies for such viola- (1971), that now provide damages remedies for such viola- tions.

It would create an action in federal court for arrests tions. It would create an action in federal court for arrests by state officers who simply exceed their authority; and for by state officers who simply exceed their authority; and for the violation of any limit that the law of any country might the violation of any limit that the law of any country might place on the authority of its own officers to arrest. And all place on the authority of its own officers to arrest. And all of this assumes that Alvarez could establish that Sosa was of this assumes that Alvarez could establish that Sosa was acting on behalf of a government when he made the arrest, acting on behalf of a government when he made the arrest, for otherwise he would need a rule broader still. for otherwise he would need a rule broader still.

Alvarez's failure to marshal support for his proposed rule Alvarez's failure to marshal support for his proposed rule is underscored by the Restatement (Third) of Foreign Rela- is underscored by the Restatement (Third) of Foreign Rela- tions Law of the United States (1986), which says in its dis- tions Law of the United States (1986), which says in its dis- cussion of customary international human rights law that a cussion of customary international human rights law that a "state violates international law if, as a matter of state pol- "state violates international law if, as a matter of state pol- icy, it practices, encourages, or condones ... prolonged arbi- icy, it practices, encourages, or condones ... prolonged arbi- trary detention." 2 id., § 702. Although the Restatement trary detention." 2 id., § 702. Although the Restatement does not explain its requirements of a "state policy" and of does not explain its requirements of a "state policy" and of "prolonged" detention, the implication is clear. Any credi- "prolonged" detention, the implication is clear. Any credi- ble invocation of a principle against arbitrary detention that ble invocation of a principle against arbitrary detention that the civilized world accepts as binding customary interna- the civilized world accepts as binding customary interna- tional law requires a factual basis beyond relatively brief de- tional law requires a factual basis beyond relatively brief de- tention in excess of positive authority. Even the Restate- tention in excess of positive authority. Even the Restate- ment's limits are only the beginning of the enquiry, because ment's limits are only the beginning of the enquiry, because although it is easy to say that some policies of prolonged although it is easy to say that some policies of prolonged arbitrary detentions are so bad that those who enforce them arbitrary detentions are so bad that those who enforce them become enemies of the human race, it may be harder to say become enemies of the human race, it may be harder to say which policies cross that line with the certainty afforded by which policies cross that line with the certainty afforded by Blackstone's three common law offenses.

In any event, the Blackstone's three common law offenses. In any event, the label would never fit the reckless policeman who botches his label would never fit the reckless policeman who botches his warrant, even though that same officer might pay damages warrant, even though that same officer might pay damages under municipal law. E. g., Groh v. Ramirez, 540 U. S. 551 under municipal law. E. g., Groh v. Ramirez, 540 U. S. 551 (2004).28 (2004)?s

28 In this action, Sosa might well have been liable under Mexican law.

2s In this action, Sosa might well have been liable under Mexican law.

Alvarez asserted such a claim, but the District Court concluded that the Alvarez asserted such a claim, but the District Court concluded that the applicable law was the law of California, and that under California law applicable law was the law of California, and that under California law Sosa had been privileged to make a citizen's arrest in Mexico. Whether Sosa had been privileged to make a citizen's arrest in Mexico. Whether

738 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

Opinion of the Court Opinion of the Court

Whatever may be said for the broad principle Alvarez ad- Whatever may be said for the broad principle Alvarez ad- vances, in the present, imperfect world, it expresses an aspi- vances, in the present, imperfect world, it expresses an aspi- ration that exceeds any binding customary rule having the ration that exceeds any binding customary rule having the specificity we require.29 Creating a private cause of action specificity we require.29 Creating a private cause of action to further that aspiration would go beyond any residual com- to further that aspiration would go beyond any residual com- mon law discretion we think it appropriate to exercise.30 It mon law discretion we think it appropriate to exercise .30 It is enough to hold that a single illegal detention of less than is enough to hold that a single illegal detention of less than a day, followed by the transfer of custody to lawful authori- a day, followed by the transfer of custody to lawful authori- ties and a prompt arraignment, violates no norm of custom- ties and a prompt arraignment, violates no norm of custom- ary international law so well defined as to support the cre- ary international law so well defined as to support the cre- ation of a federal remedy.

ation of a federal remedy.

The judgment of the Court of Appeals is The judgment of the Court of Appeals is

Reversed.

this was correct is not now before us, though we discern tension between this was correct is not now before us, though we discern tension between the court's simultaneous conclusions that the detention so lacked any legal the court's simultaneous conclusions that the detention so lacked any legal basis as to violate international law, yet was privileged by state law basis as to violate international law, yet was privileged by state law against ordinary tort recovery. against ordinary tort recovery.

'It is not that violations of a rule logically foreclose the existence of I It is not that violations of a rule logically foreclose the existence of that rule as international law. Cf. Filartiga v. Pena-Irala, 630 F. 2d 876, that rule as international law. Cf. Filartiga v. Pena-Irala, 630 F. 2d 876, 884, n. 15 (CA2 1980) ("The fact that the prohibition of torture is often 884, n. 15 (CA2 1980) ("The fact that the prohibition of torture is often honored in the breach does not diminish its binding effect as a norm of honored in the breach does not diminish its binding effect as a norm of international law"). Nevertheless, that a rule as stated is as far from full international law"). Nevertheless, that a rule as stated is as far from full realization as the one Alvarez urges is evidence against its status as bind- realization as the one Alvarez urges is evidence against its status as bind- ing law; and an even clearer point against the creation by judges of a ing law; and an even clearer point against the creation by judges of a private cause of action to enforce the aspiration behind the rule claimed.

private cause of action to enforce the aspiration behind the rule claimed. also cites, Brief for Respondent Alvarez-Machain 49-50, a finding by a United Nations working group that his detention was arbi- finding by a United Nations working group that his detention was arbi- trary under the Declaration, the Covenant, and customary international trary under the Declaration, the Covenant, and customary international law. See Report of the United Nations Working Group on Arbitrary De- law. See Report of the United Nations Working Group on Arbitrary De- tention, U. N. Doc. E/CN.4/1994/27, pp. 139-140 (Dec. 17, 1993). That tention, U. N. Doc. E/CN.4/1994/27, pp. 139-140 (Dec. 17, 1993). That finding is not addressed, however, to our demanding standard of definition, finding is not addressed, however, to our demanding standard of definition, which must be met to raise even the possibility of a private cause of action.

which must be met to raise even the possibility of a private cause of action.

If Alvarez wishes to seek compensation on the basis of the working group's If Alvarez wishes to seek compensation on the basis of the working group's finding, he must address his request to Congress. finding, he must address his request to Congress.

'Alvarez I Alvarez also cites, Brief for Respondent Alvarez-Machain 49-50, a

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739

Opinion of SCALIA, J.

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and Jus- JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUS- TICE THOMAS join, concurring in part and concurring in the TICE THOMAS join, concurring in part and concurring in the judgment. judgment.

There is not much that I would add to the Court's detailed There is not much that I would add to the Court's detailed opinion, and only one thing that I would subtract: its reser- opinion, and only one thing that I would subtract: its reser- vation of a discretionary power in the Federal Judiciary to vation of a discretionary power in the Federal Judiciary to create causes of action for the enforcement of international- create causes of action for the enforcement of international- law-based norms. Accordingly, I join Parts I, II, and III of law-based norms. Accordingly, I join Parts I, II, and III of the Court's opinion in these consolidated cases. Although I the Court's opinion in these consolidated cases. Although I agree with much in Part IV, I cannot join it because the agree with much in Part IV, I cannot join it because the judicial lawmaking role it invites would commit the Federal judicial lawmaking role it invites would commit the Federal Judiciary to a task it is neither authorized nor suited to Judiciary to a task it is neither authorized nor suited to perform.

perform.

I

The question at hand is whether the Alien Tort Statute The question at hand is whether the Alien Tort Statute (ATS), 28 U. S. C. § 1350, provides respondent Alvarez- (ATS), 28 U. S. C. § 1350, provides respondent Alvarez- Machain (hereinafter respondent) a cause of action to sue in Machain (hereinafter respondent) a cause of action to sue in federal court to recover money damages for violation of what federal court to recover money damages for violation of what is claimed to be a customary international law norm against is claimed to be a customary international law norm against arbitrary arrest and detention. The ATS provides that arbitrary arrest and detention. The ATS provides that "[tihe district courts shall have original jurisdiction of any "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

Ibid. of the law of nations or a treaty of the United States." Ibid.

The challenge posed by this action is to ascertain (in the The challenge posed by this action is to ascertain (in the Court's felicitous phrase) "the interaction between the ATS Court's felicitous phrase) "the interaction between the ATS at the time of its enactment and the ambient law of the era." at the time of its enactment and the ambient law of the era."

Ante, at 714. I begin by describing the general principles Ante, at 714. I begin by describing the general principles that must guide our analysis. that must guide our analysis.

At the time of its enactment, the ATS provided a federal At the time of its enactment, the ATS provided a federal forum in which aliens could bring suit to recover for torts forum in which aliens could bring suit to recover for torts committed in "violation of the law of nations." The law of committed in "violation of the law of nations." The law of nations that would have been applied in this federal forum nations that would have been applied in this federal forum was at the time part of the so-called general common law. was at the time part of the so-called general common law.

See Young, Sorting out the Debate Over Customary Interna- See Young, Sorting out the Debate Over Customary Interna- tional Law, 42 Va. J. Int'l L. 365, 374 (2002); Bradley & Gold- tional Law, 42 Va. J Int'l L. 365, 374 (2002); Bradley & Gold-

740 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

Opinion of SCALIA, J.

smith, Customary International Law as Federal Common smith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev.

Law: A Critique of the Modern Position, 110 Harv. L. Rev.

815, 824 (1997); Brief for Vikram Amar et al. as Amici Cu- 815, 824 (1997); Brief for Vikram Amar et al. as Amici Cu- riae 12-13. riae 12-13.

General common law was not federal law under the Su- General common law was not federal law under the Su- premacy Clause, which gave that effect only to the Constitu- premacy Clause, which gave that effect only to the Constitu- tion, the laws of the United States, and treaties. U. S. tion, the laws of the United States, and treaties. U. S.

Const., Art. VI, cl. 2. Federal and state courts adjudicating Const., Art. VI, cl. 2. Federal and state courts adjudicating questions of general common law were not adjudicating questions of general common law were not adjudicating questions of federal or state law, respectively-the general questions of federal or state law, respectively—the general law was neither. See generally Clark, Federal common common law was neither. See generally Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa.

Common Law: A Structural Reinterpretation, 144 U. Pa.

L. Rev. 1245, 1279-1285 (1996). The nonfederal nature of

the law of nations explains this Court's holding that it lacked the law of nations explains this Court's holding that it lacked jurisdiction in New York Life Ins. Co. v. Hendren, 92 U. S. jurisdiction in New York Life Ins. Co. v. Hendren, 92 U. S.

286 (1876), where it was asked to review a state-court deci- 286 (1876), where it was asked to review a state-court deci- sion regarding "the effect, under the general public law, of a sion regarding "the effect, under the general public law, of a state of sectional civil war upon [a] contract of life insur- state of sectional civil war upon [a] contract of life insur- Ibid. Although the case involved "the general laws ance." ance." Ibid. Although the case involved "the general laws of war, as recognized by the law of nations applicable to this of war, as recognized by the law of nations applicable to this case," ibid., it involved no federal question. The Court con- case," ibid., it involved no federal question. The Court con- . . having been presented to the court cluded: "The case, . cluded: "The case.... having been presented to the court below for decision upon principles of general law alone, and below for decision upon principles of general law alone, and it nowhere appearing that the constitution, laws, treaties, or it nowhere appearing that the constitution, laws, treaties, or executive proclamations, of the United States were necessar- executive proclamations, of the United States were necessar- Id., ily involved in the decision, we have no jurisdiction."

ily involved in the decision, we have no jurisdiction." Id., at 287. at 287.

This Court's decision in Erie R. Co. v. Tompkins, 304 U. S.

64 (1938), signaled the end of federal-court elaboration and 64 (1938), signaled the end of federal-court elaboration and application of the general common law. Erie repudiated the application of the general common law. Erie repudiated the holding of Swift v. Tyson, 16 Pet. 1 (1842), that federal courts holding of Swift v Tyson, 16 Pet. 1(1842), that federal courts were free to "express our own opinion" upon "the principles were free to "express our own opinion" upon "the principles Id., at 19, 18. established in the general commercial law." established in the general commercial law." Id., at 19, 18.

After canvassing the many problems resulting from "the After canvassing the many problems resulting from "the broad province accorded to the so-called 'general law' as to broad province accorded to the so-called `general law' as to which federal courts exercised an independent judgment," which federal courts exercised an independent judgment,"

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741

Opinion of SCALIA, J.

304 U. S., at 75, the Erie Court extirpated that law with its 304 U. S., at 75, the Erie Court extirpated that law with its famous declaration that "[t]here is no federal general com- famous declaration that "[t]here is no federal general com- Id., at 78. Erie affected the status of the law of mon law." mon law." Id., at 78. Erie affected the status of the law of nations in federal courts not merely by the implication of its nations in federal courts not merely by the implication of its holding but quite directly, since the question decided in Swift holding but quite directly, since the question decided in Swift turned on the "law merchant," then a subset of the law of turned on the "law merchant," then a subset of the law of nations. See Clark, supra, at 1280-1281. nations. See Clark, supra, at 1280-1281.

After the death of the old general common law in Erie After the death of the old general common law in Erie came the birth of a new and different common law pro- came the birth of a new and different common law pro- nounced by federal courts. There developed a specifically nounced by federal courts. There developed a specifically federal common law (in the sense of judicially pronounced federal common law (in the sense of judicially pronounced law) for a "few and restricted" areas in which "a federal rule law) for a "few and restricted" areas in which "a federal rule of decision is necessary to protect uniquely federal interests, of decision is necessary to protect uniquely federal interests, and those in which Congress has given the courts the power and those in which Congress has given the courts the power to develop substantive law." Texas Industries, Inc. v. Rad- to develop substantive law." Texas Industries, Inc. v. Rad- cliff Materials, Inc., 451 U. S. 630,640 (1981) (internal quota- cliff Materials, Inc., 451 U. S. 630, 640 (1981) (internal quota- tion marks and citations omitted). Unlike the general com- tion marks and citations omitted). Unlike the general com- mon law that preceded it, however, federal common law was mon law that preceded it, however, federal common law was self-consciously "made" rather than "discovered," by judges self-consciously "made" rather than "discovered," by judges who sought to avoid falling under the sway of (in Holmes's who sought to avoid falling under the sway of (in Holmes's hyperbolic language) "[tihe fallacy and illusion" that there hyperbolic language) "[t]he fallacy and illusion" that there exists "a transcendental body of law outside of any particular exists "a transcendental body of law outside of any particular State but obligatory within it unless and until changed by State but obligatory within it unless and until changed by statute." Black and White Taxicab & Transfer Co. v.

statute." Black and White Taxicab & Transfer Co. v.

Brown and Yellow Taxicab & Transfer Co., 276 U. S. 518, Brown and Yellow Taxicab & Transfer Co., 276 U. S. 518, 533 (1928) (dissenting opinion).

533 (1928) (dissenting opinion).

Because post-Erie federal common law is made, not dis- Because post-Erie federal common law is made, not dis- covered, federal courts must possess some federal-common- covered, federal courts must possess some federal-common- law-making authority before undertaking to craft it. "Fed- law-making authority before undertaking to craft it. "Fed- eral courts, unlike state courts, are not general common-law eral courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and courts and do not possess a general power to develop and apply their own rules of decision." Milwaukee v. Illinois, apply their own rules of decision." Milwaukee v. Illinois,

451 U. S. 304, 312 (1981).

The general rule as formulated in Texas Industries, 451 The general rule as formulated in Texas Industries, 451

U. S., at 640-641, is that "[t]he vesting of jurisdiction in the

federal courts does not in and of itself give rise to authority federal courts does not in and of itself give rise to authority

742 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

Opinion of SCALIA, J.

to formulate federal common law." This rule applies not to formulate federal common law." This rule applies not only to applications of federal common law that would dis- only to applications of federal common law that would dis- place a state rule, but also to applications that simply create place a state rule, but also to applications that simply create a private cause of action under a federal statute.

Indeed, a private cause of action under a federal statute. Indeed, Texas Industries itself involved the petitioner's unsuccessful Texas Industries itself involved the petitioner's unsuccessful request for an application of the latter sort-creation of a request for an application of the latter sort—creation of a right of contribution to damages assessed under the antitrust right of contribution to damages assessed under the antitrust laws. See id., at 639-646. See also Northwest Airlines, laws. See id., at 639-646. See also Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 99 (1981) (declining Inc. v. Transport Workers, 451 U. S. 77, 99 (1981) (declining to create a federal-common-law right of contribution to dam- to create a federal-common-law right of contribution to dam- ages assessed under the Equal Pay Act and Title VII). ages assessed under the Equal Pay Act and Title VII).

The rule against finding a delegation of substantive law- The rule against finding a delegation of substantive law- making power in a grant of jurisdiction is subject to excep- making power in a grant of jurisdiction is subject to excep- tions, some better established than others. The most firmly tions, some better established than others. The most firmly entrenched is admiralty law, derived from the grant of admi- entrenched is admiralty law, derived from the grant of admi- ralty jurisdiction in Article III, § 2, cl. 3, of the Constitution. ralty jurisdiction in Article III, § 2, cl. 3, of the Constitution.

In the exercise of that jurisdiction federal courts develop and In the exercise of that jurisdiction federal courts develop and apply a body of general maritime law, "the well-known and apply a body of general maritime law, "the well-known and well-developed venerable law of the sea which arose from well-developed venerable law of the sea which arose from the custom among seafaring men." R. M. S. Titanic, Inc. v. the custom among seafaring men." R. M. S. Titanic, Inc. v.

Haver, 171 F. 3d 943, 960 (CA4 1999) (Niemeyer, J.) (internal Haver, 171 F. 3d 943, 960 (CA4 1999) (Niemeyer, J.) (internal quotation marks omitted). At the other extreme is Bivens quotation marks omitted). At the other extreme is Bivens

v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971),

which created a private damages cause of action against fed- which created a private damages cause of action against fed- eral officials for violation of the Fourth Amendment. We eral officials for violation of the Fourth Amendment. We have said that the authority to create this cause of action have said that the authority to create this cause of action was derived from "our general jurisdiction to decide all cases was derived from "our general jurisdiction to decide all cases 'arising under the Constitution, laws, or treaties of the `arising under the Constitution, laws, or treaties of the United States."' Correctional Services Corp. v. Malesko, United States."' Correctional Services Corp. v. Malesko, 534 U. S. 61, 66 (2001) (quoting 28 U. S. C. § 1331). While 534 U. S. 61, 66 (2001) (quoting 28 U. S. C. § 1331). While Bivens stands, the ground supporting it has eroded. For Bivens stands, the ground supporting it has eroded. For the past 25 years, "we have consistently refused to extend the past 25 years, "we have consistently refused to extend Bivens liability to any new context." Correctional Services Bivens liability to any new context." Correctional Services Corp., supra, at 68. Bivens is "a relic of the heady days in Corp., supra, at 68. Bivens is "a relic of the heady days in which this Court assumed common-law powers to create which this Court assumed common-law powers to create 534 U. S., at 75 (ScALIA, J., concurring).

causes of action." causes of action." 534 U. S., at 75 (SCALIA, J., concurring).

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743

Opinion of SCALIA, J.

II

With these general principles in mind, I turn to the ques- With these general principles in mind, I turn to the ques- tion presented. The Court's detailed exegesis of the ATS tion presented. The Court's detailed exegesis of the ATS conclusively establishes that it is "a jurisdictional statute conclusively establishes that it is "a jurisdictional statute creating no new causes of action." Ante, at 724. The Court creating no new causes of action." Ante, at 724. The Court provides a persuasive explanation of why respondent's con- provides a persuasive explanation of why respondent's con- trary interpretation, that "the ATS was intended not simply trary interpretation, that "the ATS was intended not simply as a jurisdictional grant, but as authority for the creation of as a jurisdictional grant, but as authority for the creation of a new cause of action for torts in violation of international a new cause of action for torts in violation of international Indeed, the Court properly law," is wrong. Ante, at 713.

law," is wrong. Ante, at 713. Indeed, the Court properly endorses the views of one scholar that this interpretation endorses the views of one scholar that this interpretation is "'simply frivolous.'" Ibid. (quoting Casto, The Federal is "`simply frivolous."' Ibid. (quoting Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 479, Violation of the Law of Nations, 18 Conn. L. Rev. 467, 479, 480 (1986)).

480 (1986)).

These conclusions are alone enough to dispose of the pres- These conclusions are alone enough to dispose of the pres- ent case in favor of petitioner Sosa. None of the exceptions ent case in favor of petitioner Sosa. None of the exceptions to the general rule against finding substantive lawmaking to the general rule against finding substantive lawmaking power in a jurisdictional grant apply. Bivens provides per- power in a jurisdictional grant apply. Bivens provides per- haps the closest analogy. That is shaky authority at best, haps the closest analogy. That is shaky authority at best, but at least it can be said that Bivens sought to enforce a but at least it can be said that Bivens sought to enforce a command of our own law-the United States Constitution. command of our own law—the United States Constitution.

In modern international human rights litigation of the sort In modern international human rights litigation of the sort that has proliferated since Filartiga v. Pena-Irala, 630 F. 2d that has proliferated since Filartiga v. Pena-Irala, 630 F. 2d 876 (CA2 1980), a federal court must first create the underly- 876 (CA2 1980), a federal court must first create the underly- ing federal command. But "the fact that a rule has been ing federal command. But "the fact that a rule has been recognized as [customary international law], by itself, is not recognized as [customary international law], by itself, is not an adequate basis for viewing that rule as part of federal an adequate basis for viewing that rule as part of federal common law." Meltzer, Customary International Law, For- common law." Meltzer, Customary International Law, For- eign Affairs, and Federal Common Law, 42 Va. J. Int'l L. 513, eign Affairs, and Federal Common Law, 42 Va. J Int'l L. 513, 519 (2002).

In Benthamite terms, creating a federal com- 519 (2002). In Benthamite terms, creating a federal com- mand (federal common law) out of "international norms," and mand (federal common law) out of "international norms," and then constructing a cause of action to enforce that command then constructing a cause of action to enforce that command through the purely jurisdictional grant of the ATS, is non- through the purely jurisdictional grant of the ATS, is non- sense upon stilts. sense upon stilts.

744 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

Opinion of SCALIA, J.

III

The analysis in the Court's opinion departs from my own The analysis in the Court's opinion departs from my own in this respect: After concluding in Part III that "the ATS in this respect: After concluding in Part III that "the ATS is a jurisdictional statute creating no new causes of action," is a jurisdictional statute creating no new causes of action," ante, at 724, the Court addresses at length in Part IV the ante, at 724, the Court addresses at length in Part IV the "good reasons for a restrained conception of the discretion a "good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of federal court should exercise in considering a new cause of action" under the ATS. Ante, at 725 (emphasis added). By action" under the ATS. Ante, at 725 (emphasis added). By framing the issue as one of "discretion," the Court skips over framing the issue as one of "discretion," the Court skips over the antecedent question of authority. This neglects the the antecedent question of authority. This neglects the "lesson of Erie," that "grants of jurisdiction alone" (which "lesson of Erie," that "grants of jurisdiction alone" (which the Court has acknowledged the ATS to be) "are not them- the Court has acknowledged the ATS to be) "are not them- selves grants of lawmaking authority." Meltzer, supra, at selves grants of lawmaking authority." Meltzer, supra, at

541. On this point, the Court observes only that no develop-

ment between the enactment of the ATS (in 1789) and the ment between the enactment of the ATS (in 1789) and the birth of modern international human rights litigation under birth of modern international human rights litigation under that statute (in 1980) "has categorically precluded federal that statute (in 1980) "has categorically precluded federal courts from recognizing a claim under the law of nations as courts from recognizing a claim under the law of nations as an element of common law." Ante, at 725 (emphasis added). an element of common law." Ante, at 725 (emphasis added).

This turns our jurisprudence regarding federal common law This turns our jurisprudence regarding federal common law on its head. The question is not what case or congressional on its head. The question is not what case or congressional action prevents federal courts from applying the law of na- action prevents federal courts from applying the law of na- tions as part of the general common law; it is what author- tions as part of the general common law; it is what author- izes that peculiar exception from Erie's fundamental holding izes that peculiar exception from Erie's fundamental holding that a general common law does not exist. that a general common law does not exist.

The Court would apparently find authorization in the un- The Court would apparently find authorization in the un- derstanding of the Congress that enacted the ATS, that "dis- derstanding of the Congress that enacted the ATS, that "dis- trict courts would recognize private causes of action for cer- trict courts would recognize private causes of action for cer- tain torts in violation of the law of nations." Ante, at 724. tain torts in violation of the law of nations." Ante, at 724.

But as discussed above, that understanding rested upon a But as discussed above, that understanding rested upon a notion of general common law that has been repudiated by notion of general common law that has been repudiated by Erie.

Erie.

The Court recognizes that Erie was a "watershed" deci- The Court recognizes that Erie was a "watershed" deci- sion heralding an avulsive change, wrought by "conceptual sion heralding an avulsive change, wrought by "conceptual development in understanding common law... [and accom- development in understanding common law ... [and accom- panied by an] equally significant rethinking of the role of panied by an] equally significant rethinking of the role of the federal courts in making it." Ante, at 726. The Court's the federal courts in making it." Ante, at 726. The Court's

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745

Opinion of SCALIA, J.

analysis, however, does not follow through on this insight, analysis, however, does not follow through on this insight, interchangeably using the unadorned phrase "common law" interchangeably using the unadorned phrase "common law" in Parts III and IV to refer to pre-Erie general common in Parts III and IV to refer to pre-Erie general common law and post-Erie federal common law. This lapse is crucial, law and post-Erie federal common law. This lapse is crucial, because the creation of post-Erie federal common law is because the creation of post-Erie federal common law is rooted in a positivist mindset utterly foreign to the American rooted in a positivist mindset utterly foreign to the American common-law tradition of the late 18th century. Post-Erie common-law tradition of the late 18th century. Post-Érie federal common lawmaking (all that is left to the federal federal common lawmaking (all that is left to the federal courts) is so far removed from that general-common-law ad- courts) is so far removed from that general-common-law ad- judication which applied the "law of nations" that it would judication which applied the "law of nations" that it would be anachronistic to find authorization to do the former in a be anachronistic to find authorization to do the former in a statutory grant of jurisdiction that was thought to enable statutory grant of jurisdiction that was thought to enable the latter.* Yet that is precisely what the discretion-only the latter.* Yet that is precisely what the discretion-only analysis in Part IV suggests.

analysis in Part IV suggests.

*The Court conjures the illusion of common-law-making continuity be- *The Court conjures the illusion of common-law-making continuity be- tween 1789 and the present by ignoring fundamental differences. The tween 1789 and the present by ignoring fundamental differences. The Court's approach places the law of nations on a federal-law footing un- Court's approach places the law of nations on a federal-law footing un- known to the First Congress. At the time of the ATS's enactment, the known to the First Congress. At the time of the ATS's enactment, the law of nations, being part of general common law, was not supreme federal law of nations, being part of general common law, was not supreme federal law that could displace state law. Supra, at 739-740. By contrast, a judi- law that could displace state law. Supra, at 739-740. By contrast, a judi- cially created federal rule based on international norms would be supreme cially created federal rule based on international norms would be supreme federal law. Moreover, a federal-common-law cause of action of the sort federal law. Moreover, a federal-common-law cause of action of the sort the Court reserves discretion to create would "arise under" the laws of the the Court reserves discretion to create would "arise under" the laws of the United States, not only for purposes of Article III but also for purposes of United States, not only for purposes of Article III but also for purposes of statutory federal-question jurisdiction. See Illinois v. Milwaukee, 406 statutory federal-question jurisdiction. See Illinois v. Milwaukee, 406

U. S. 91, 99-100 (1972).

The lack of genuine continuity is thus demonstrated by the fact that The lack of genuine continuity is thus demonstrated by the fact that today's opinion renders the ATS unnecessary for federal jurisdiction over today's opinion renders the ATS unnecessary for federal jurisdiction over (so-called) law-of-nations claims.

If the law of nations can be transformed (so-called) law-of-nations claims. If the law of nations can be transformed into federal law on the basis of (1) a provision that merely grants jurisdic- into federal law on the basis of (1) a provision that merely grants jurisdic- tion, combined with (2) some residual judicial power (from whence nobody tion, combined with (2) some residual judicial power (from whence nobody knows) to create federal causes of action in cases implicating foreign rela- knows) to create federal causes of action in cases implicating foreign rela- tions, then a grant of federal-question jurisdiction would give rise to a tions, then a grant of federal-question jurisdiction would give rise to a power to create international-law-based federal common law just as effec- power to create international-law-based federal common law just as effec- tively as would the ATS. This would mean that the ATS became largely tively as would the ATS. This would mean that the ATS became largely superfluous as of 1875, when Congress granted general federal-question superfluous as of 1875, when Congress granted general federal-question jurisdiction subject to a $500 amount-in-controversy requirement, Act of jurisdiction subject to a $500 amount-in-controversy requirement, Act of Mar. 3, 1875, § 1, 18 Stat. 470, and entirely superfluous as of 1980, when May. 3, 1875, § 1, 18 Stat. 470, and entirely superfluous as of 1980, when Congress eliminated the amount-in-controversy requirement, Pub. L. 96- Congress eliminated the amount-in-controversy requirement, Pub. L. 96- 486, 94 Stat. 2369.

486, 94 Stat. 2369.

746 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

Opinion of SCALIA, J.

Because today's federal common law is not our Framers' Because today's federal common law is not our Framers' general common law, the question presented by the sugges- general common law, the question presented by the sugges- tion of discretionary authority to enforce the law of nations tion of discretionary authority to enforce the law of nations is not whether to extend old-school general-common-law ad- is not whether to extend old-school general-common-law ad- judication. Rather, it is whether to create new federal com- judication. Rather, it is whether to create new federal com- mon law. The Court masks the novelty of its approach when mon law. The Court masks the novelty of its approach when it suggests that the difference between us is that I would it suggests that the difference between us is that I would "close the door to further independent judicial recognition of "close the door to further independent judicial recognition of actionable international norms," whereas the Court would actionable international norms," whereas the Court would permit the exercise of judicial power "on the understanding permit the exercise of judicial power "on the understanding that the door is still ajar subject to vigilant doorkeeping."

that the door is still ajar subject to vigilant doorkeeping."

Ante, at 729. The general common law was the old door.- Ante, at 729. The general common law was the old door.- We do not close that door today, for the deed was done in We do not close that door today, for the deed was done in Erie. Supra, at 740-741. Federal common law is a new Erie. Supra, at 740-741. Federal common law is a new door. The question is not whether that door will be left ajar, door. The question is not whether that door will be left ajar, but whether this Court will open it. but whether this Court will open it.

Although I fundamentally disagree with the discretion- Although I fundamentally disagree with the discretion- based framework employed by the Court, we seem to be based framework employed by the Court, we seem to be in accord that creating a new federal common law of in- in accord that creating a new federal common law of in- ternational human rights is a questionable enterprise. We ternational human rights is a questionable enterprise. We

agree that:

" "[T]he general practice has been to look for legislative • "[T]he general practice has been to look for legislative guidance before exercising innovative authority over guidance before exercising innovative authority over substantive law [in the area of foreign relations].

It substantive law [in the area of foreign relations]. It would be remarkable to take a more aggressive role in would be remarkable to take a more aggressive role in exercising a jurisdiction that remained largely in shadow exercising a jurisdiction that remained largely in shadow for much of the prior two centuries." Ante, at 726. for much of the prior two centuries." Ante, at 726. • "[T]he possible collateral consequences of making inter- • "[T]he possible collateral consequences of making inter- national rules privately actionable argue for judicial cau- national rules privately actionable argue for judicial cau- tion." Ante, at 727. tion." Ante, at 727.

* "It is one thing for American courts to enforce constitu- • "It is one thing for American courts to enforce constitu- tional limits on our own State and Federal Governments' tional limits on our own State and Federal Governments' power, but quite another to consider suits under rules power, but quite another to consider suits under rules that would go so far as to claim a limit on the power of that would go so far as to claim a limit on the power of foreign governments over their own citizens, and to hold foreign governments over their own citizens, and to hold

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that a foreign government or its agent has transgressed that a foreign government or its agent has transgressed those limits."

Ibid. those limits." Ibid.

" "[M]any attempts by federal courts to craft remedies for • "[M]any attempts by federal courts to craft remedies for the violation of new norms of international law would the violation of new norms of international law would raise risks of adverse foreign policy consequences." raise risks of adverse foreign policy consequences."

Ante, at 727-728.

" "Several times, indeed, the Senate has expressly declined • "Several times, indeed, the Senate has expressly declined to give the federal courts the task of interpreting and to give the federal courts the task of interpreting and applying international human rights law." Ante, at 728. applying international human rights law." Ante, at 728.

These considerations are not, as the Court thinks them, rea- These considerations are not, as the Court thinks them, rea- sons why courts must be circumspect in use of their extant sons why courts must be circumspect in use of their extant general-common-law-making powers. They are reasons general-common-law-making powers. They are reasons why courts cannot possibly be thought to have been given, why courts cannot possibly be thought to have been given, and should not be thought to possess, federal-common-law- and should not be thought to possess, federal-common-law- making powers with regard to the creation of private federal making powers with regard to the creation of private federal causes of action for violations of customary international law. causes of action for violations of customary international law.

To be sure, today's opinion does not itself precipitate a To be sure, today's opinion does not itself precipitate a direct confrontation with Congress by creating a cause of direct confrontation with Congress by creating a cause of action that Congress has not. But it invites precisely that action that Congress has not. But it invites precisely that action by the lower courts, even while recognizing (1) that action by the lower courts, even while recognizing (1) that Congress understood the difference between granting juris- Congress understood the difference between granting juris- diction and creating a federal cause of action in 1789, ante, diction and creating a federal cause of action in 1789, ante, at 713, (2) that Congress understands that difference today, at 713, (2) that Congress understands that difference today, ante, at 728, and (3) that the ATS itself supplies only juris- ante, at 728, and (3) that the ATS itself supplies only juris- diction, ante, at 724.

In holding open the possibility that diction, ante, at 724. In holding open the possibility that judges may create rights where Congress has not authorized judges may create rights where Congress has not authorized them to do so, the Court countenances judicial occupation of them to do so, the Court countenances judicial occupation of a domain that belongs to the people's representatives. One a domain that belongs to the people's representatives. One does not need a crystal ball to predict that this occupation does not need a crystal ball to predict that this occupation will not be long in coming, since the Court endorses the rea- will not be long in coming, since the Court endorses the rea- soning of "many of the courts and judges who faced the issue soning of "many of the courts and judges who faced the issue before it reached this Court," including the Second and before it reached this Court," including the Second and Ninth Circuits. Ante, at 732.

Ninth Circuits. Ante, at 732.

The Ninth Circuit brought us the judgment that the Court The Ninth Circuit brought us the judgment that the Court reverses today. Perhaps its decision in this particular case, reverses today. Perhaps its decision in this particular case,

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like the decisions of other lower federal courts that receive like the decisions of other lower federal courts that receive passing attention in the Court's opinion, "reflects a more as- passing attention in the Court's opinion, "reflects a more as- sertive view of federal judicial discretion over claims based sertive view of federal judicial discretion over claims based on customary international law than the position we take on customary international law than the position we take today." Ante, at 736, n. 27. But the verbal formula it ap- today." Ante, at 736, n. 27. But the verbal formula it ap- plied is the same verbal formula that the Court explicitly plied is the same verbal formula that the Court explicitly endorses. Compare ante, at 732 (quoting In re Estate of endorses. Compare ante, at 732 (quoting In re Estate of Marcos Human Rights Litigation, 25 F. 3d 1467, 1475 (CA9 Marcos Human Rights Litigation, 25 F. 3d 1467, 1475 (CA9 1994), for the proposition that actionable norms must be 1994), for the proposition that actionable norms must be "'specific, universal, and obligatory'"), with 331 F. 3d 604, "specific, universal, and obligatory"'), with 331 F. 3d 604, 621 (CA9 2003) (en banc) (finding the norm against arbitrary 621 (CA9 2003) (en bane) (finding the norm against arbitrary arrest and detention in this action to be "universal, obliga- arrest and detention in this action to be "universal, obliga- tory, and specific"); id., at 619 ("[A]n actionable claim under tory, and specific"); id., at 619 ("[A]n actionable claim under the [ATS] requires the showing of a violation of the law of the [ATS] requires the showing of a violation of the law of nations that is specific, universal, and obligatory" (internal nations that is specific, universal, and obligatory" (internal quotation marks omitted)). Endorsing the very formula quotation marks omitted)). Endorsing the very formula that led the Ninth Circuit to its result in this action hardly that led the Ninth Circuit to its result in this action hardly seems to be a recipe for restraint in the future.

seems to be a recipe for restraint in the future.

The Second Circuit, which started the Judiciary down the The Second Circuit, which started the Judiciary down the path the Court today tries to hedge in, is a good indicator of path the Court today tries to hedge in, is a good indicator of where that path leads us: directly into confrontation with the where that path leads us: directly into confrontation with the political branches. Kadic v Karadgid, 70 F. 3d 232 (CA2 political branches. Kadic v: Karadzic, 70 F. 3d 232 (CA2 1995), provides a case in point. One of the norms at issue 1995), provides a case in point. One of the norms at issue in that case was a norm against genocide set forth in the in that case was a norm against genocide set forth in the Convention on the Prevention and Punishment of the Crime Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U. N. T. S. 278. The Second of Genocide, Dec. 9, 1948, 78 U. N. T. S. 278. The Second Circuit held that the norm was actionable under the ATS Circuit held that the norm was actionable under the ATS after applying Circuit case law that the Court today en- after applying Circuit case law that the Court today en- dorses. 70 F. 3d, at 238-239, 241-242. The Court of Ap- dorses. 70 F. 3d, at 238-239, 241-242. The Court of Ap- peals then did something that is perfectly logical and yet peals then did something that is perfectly logical and yet truly remarkable: It dismissed the determination by Con- truly remarkable: It dismissed the determination by Con- gress and the Executive that this norm should not give rise gress and the Executive that this norm should not give rise to a private cause of action. We know that Congress and to a private cause of action. We know that Congress and the Executive made this determination, because Congress the Executive made this determination, because Congress inscribed it into the Genocide Convention Implementation inscribed it into the Genocide Convention Implementation Act of 1987, 18 U. S. C. § 1091 et seq., a law signed by the Act of 1987, 18 U. S. C. § 1091 et seq., a law signed by the

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President attaching criminal penalties to the norm against President attaching criminal penalties to the norm against genocide. The Act, Congress said, shall not "be construed genocide. The Act, Congress said, shall not "be construed as creating any substantive or procedural right enforceable as creating any substantive or procedural right enforceable by law by any party in any proceeding." § 1092. Unde- by law by any party in any proceeding." § 1092. Unde- terred, the Second Circuit reasoned that this "decision not terred, the Second Circuit reasoned that this "decision not to create a new private remedy" could hardly be construed to create a new private remedy" could hardly be construed as repealing by implication the cause of action supplied by as repealing by implication the cause of action supplied by the ATS. 70 F. 3d, at 242 (emphasis added). Does this the ATS. 70 F. 3d, at 242 (emphasis added). Does this Court truly wish to encourage the use of a jurisdiction- Court truly wish to encourage the use of a jurisdiction- granting statute with respect to which there is "no record of granting statute with respect to which there is "no record of congressional discussion about private actions that might be congressional discussion about private actions that might be subject to the jurisdictional provision, or about any need for subject to the jurisdictional provision, or about any need for further legislation to create private remedies; [and] no rec- further legislation to create private remedies; [and] no rec- ord even of debate on the section," ante, at 718, to override ord even of debate on the section," ante, at 718, to override a clear indication from the political branches that a "specific, a clear indication from the political branches that a "specific, universal, and obligatory" norm against genocide is not to be universal, and obligatory" norm against genocide is not to be enforced through a private damages action? Today's opin- enforced through a private damages action? Today's opin- ion leads the lower courts right down that perilous path.

ion leads the lower courts right down that perilous path.

Though it is not necessary to resolution of the present ac- Though it is not necessary to resolution of the present ac- tion, one further consideration deserves mention: Despite the tion, one further consideration deserves mention: Despite the avulsive change of Erie, the Framers who included reference avulsive change of Erie, the Framers who included reference to "the Law of Nations" in Article I, § 8, cl. 10, of the Consti- to "the Law of Nations" in Article I, § 8, cl. 10, of the Consti- tution would be entirely content with the post-Erie system tution would be entirely content with the post-Erie system I have described, and quite terrified by the "discretion" en- I have described, and quite terrified by the "discretion" en- dorsed by the Court. That portion of the general common dorsed by the Court. That portion of the general common law known as the law of nations was understood to refer to law known as the law of nations was understood to refer to the accepted practices of nations in their dealings with one the accepted practices of nations in their dealings with one another (treatment of ambassadors, immunity of foreign sov- another (treatment of ambassadors, immunity of foreign sov- ereigns from suit, etc.) and with actors on the high seas hos- ereigns from suit, etc.) and with actors on the high seas hos- tile to all nations and beyond all their territorial jurisdictions tile to all nations and beyond all their territorial jurisdictions (pirates). Those accepted practices have for the most part, (pirates). Those accepted practices have for the most part, if not in their entirety, been enacted into United States stat- if not in their entirety, been enacted into United States stat- utory law, so that insofar as they are concerned the demise utory law, so that insofar as they are concerned the demise of the general common law is inconsequential. The notion of the general common law is inconsequential. The notion that a law of nations, redefined to mean the consensus of that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to states on any subject, can be used by a private citizen to

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control a sovereign's treatment of its own citizens within its control a sovereign's treatment of its own citizens within its own territory is a 20th-century invention of internationalist own territory is a 20th-century invention of internationalist law professors and human rights advocates. See generally law professors and human rights advocates. See generally Bradley & Goldsmith, Critique of the Modern Position, 110 Bradley & Goldsmith, Critique of the Modern Position, 110 Harv. L. Rev., at 831-837. The Framers would, I am confi- Harv. L. Rev., at 831-837. The Framers would, I am confi- dent, be appalled by the proposition that, for example, the dent, be appalled by the proposition that, for example, the American peoples' democratic adoption of the death penalty, American peoples' democratic adoption of the death penalty, see, e.g., Tex. Penal Code Ann. § 12.31 (West 2003), could see, e.g., Tex. Penal Code Ann. § 12.31 (West 2003), could be' judicially nullified because of the disapproving views of be' judicially nullified because of the disapproving views of foreigners.

foreigners.

* * *

We Americans have a method for making the laws that are We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Con- over us. We elect representatives to two Houses of Con- gress, each of which must enact the new law and present it gress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they usurping this lawmaking power by converting what they regard as norms of international law into American law. To- regard as norms of international law into American law. To- day's opinion approves that process in principle, though urg- day's opinion approves that process in principle, though urg- ing the lower courts to be more restrained.

ing the lower courts to be more restrained.

This Court seems incapable of admitting that some mat- This Court seems incapable of admitting that some mat- ters-any matters-are none of its business. See, e. g., ters—any matters—are none of its business. See, e. g., Rasul v. Bush, ante, p. 466; INS v. St. Cyr, 533 U. S. 289 Rasul v Bush, ante, p. 466; INS v. St. Cyr, 533 U. S. 289 In today's latest victory for its Never Say Never (2001).

(2001). In today's latest victory for its Never Say Never Jurisprudence, the Court ignores its own conclusion that the Jurisprudence, the Court ignores its own conclusion that the ATS provides only jurisdiction, wags a finger at the lower ATS provides only jurisdiction, wags a finger at the lower courts for going too far, and then-repeating the same for- courts for going too far, and then—repeating the same for- mula the ambitious lower courts themselves have used-in- mula the ambitious lower courts themselves have used—in- vites them to try again. vites them to try again.

It would be bad enough if there were some assurance that It would be bad enough if there were some assurance that future conversions of perceived international norms into future conversions of perceived international norms into American law would be approved by this Court itself.

American law would be approved by this Court itself.

(Though we know ourselves to be eminently reasonable, (Though we know ourselves to be eminently reasonable, self-awareness of eminent reasonableness is not really a sub- self-awareness of eminent reasonableness is not really a sub- stitute for democratic election.) But in this illegitimate law- stitute for democratic election.) But in this illegitimate law- making endeavor, the lower federal courts will be the princi- making endeavor, the lower federal courts will be the princi-

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pal actors; we review but a tiny fraction of their decisions. pal actors; we review but a tiny fraction of their decisions.

And no one thinks that all of them are eminently reasonable.

American law-the law made by the people's democrati- American law—the law made by the people's democrati- cally elected representatives-does not recognize a category cally elected representatives—does not recognize a category of activity that is so universally disapproved by other nations of activity that is so universally disapproved by other nations that it is automatically unlawful here, and automatically that it is automatically unlawful here, and automatically gives rise to a private action for money damages in federal gives rise to a private action for money damages in federal court. That simple principle is what today's decision should court. That simple principle is what today's decision should have announced. have announced.

JUSTICE GINSBURG, with whom JUSTICE BREYER joins, JUSTICE GINSBURG, with whom JUSTICE BREYER joins,

concurring in part and concurring in the judgment. concurring in part and concurring in the judgment.

I join in full the Court's disposition of Alvarez's claim pur- I join in full the Court's disposition of Alvarez.'s claim pur- suant to 28 U. S. C. § 1350. See ante, at 712-738. As to suant to 28 U. S. C. § 1350. See ante, at 712-738. As to Alvarez's Federal Tort Claims Act (FTCA or Act) claim, see Alvarez's Federal Tort Claims Act (FTCA or Act) claim, see ante, at 699-712, although I agree with the Court's result ante, at 699-712, although I agree with the Court's result and much of its reasoning, I take a different path and would and much of its reasoning, I take a different path and would adopt a different construction of 28 U. S. C. § 2680(k). Al- adopt a different construction of 28 U. S. C. § 2680(k). Al- varez's case against the Government does not call for any varez's case against the Government does not call for any comparison of old versus newer choice-of-law methodologies. comparison of old versus newer choice-of-law methodologies.

See ante, at 708-710. See generally Kay, Theory into Prac- See ante, at 708-710. See generally Kay, Theory into Prac- tice: Choice of Law in the Courts, 34 Mercer L. Rev. 521, tice: Choice of Law in the Courts, 34 Mercer L. Rev. 521, 525-584 (1983).

In particular, the Court's discussion of de- 525-584 (1983). In particular, the Court's discussion of de- velopments in choice of law after the FTCA's enactment velopments in choice of law after the FTCA's enactment hardly illuminates the meaning of that statute, and risks giv- hardly illuminates the meaning of that statute, and risks giv- ing undue prominence to a jurisdiction-selecting approach ing undue prominence to a jurisdiction-selecting approach the vast majority of States have long abandoned. See Sy- the vast majority of States have long abandoned. See Sy-

meonides, Choice of Law in the American Courts in 2002:

Sixteenth Annual Survey, 51 Am. J. Comp. L. 1, 5-6 (2003) Sixteenth Annual Survey, 51 Am. J Comp. L. 1, 5-6 (2003) (lex loci delicti rule has been abandoned in 42 States). (lex loci delicti rule has been abandoned in 42 States).

I

The FTCA renders the United States liable for tort claims The FTCA renders the United States liable for tort claims "in the same manner and to the same extent as a private "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S. C. § 2674. individual under like circumstances." 28 U.S. C. § 2674.

The Act gives federal district courts "exclusive jurisdiction The Act gives federal district courts "exclusive jurisdiction

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of civil actions on claims against the United States, for of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting omission of any employee of the Government while acting within the scope of his office or employment, under circum- within the scope of his office or employment, under circum- stances where the United States, if a private person, would stances where the United States, if a private person, would be liable to the claimant in accordance with the law of the be liable to the claimant in accordance with the law of the place where the act or omission occurred." § 1346(b)(1). place where the act or omission occurred." § 1346(b)(1).

Congress included in the FTCA a series of exceptions to that Congress included in the FTCA a series of exceptions to that sovereign-immunity waiver. Relevant to this litigation, the sovereign-immunity waiver. Relevant to this litigation, the Act expressly excepts "[a]ny claim arising in a foreign coun- Act expressly excepts "[a]ny claim arising in a foreign coun- I agree with the Court, see ante, at 699- try." §2680(k). try." §2680(k). I agree with the Court, see ante, at 699- 712, that this provision, the foreign-country exception, ap- 712, that this provision, the foreign-country exception, ap- plies here, and bars Alvarez's tort claim against the United plies here, and bars Alvarez's tort claim against the United States. But I would read the words "arising in," as they States. But I would read the words "arising in," as they appear in § 2680(k), to signal "place where the act or omission appear in § 268O(k), to signal "place whére the act or omission occurred," § 1346(b)(1), not "place of injury," ante, at 707-708, occurred," § 1346(b)(1), not "place of injury," ante, at 707-708, 711, and n. 9.1 711, and n. 9. 1

'In common with § 2680(k), most of the exceptions listed in § 2680 use

1 In common with § 2680(k), most of the exceptions listed in § 2680 use

the "claiin arising" formulation. See §§2680(b), (c), (e), (h), (j), (1), (m), the "claim arising" formulation. See §§2680(b), (c), (e), (h), (j), (l), (m), and (n). Only two use the "act or omission" terminology. See §2680(a) and (n). Only two use the "act or omission" terminology. See §2680(a) (exception for "[a]ny claim based upon an act or omission of an employee (exception for "[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or of the Government, exercising due care, in the execution of a statute or regulation... or based upon the exercise or performance or the failure to regulation ... or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty . . ."); §2680(e) (no exercise or perform a discretionary function or duty ... "); §2680(e) (no liability for "[any claim arising out of an act or omission of any employee liability for "[a]ny claim arising out of an act or omission of any employee of the Government in administering [certain provisions concerning war of the Government in administering [certain provisions concerning war and national defense]").

It is hardly apparent, however, that Congress and national defense]"). It is hardly apparent, however, that Congress intended only §§ 2680(a) and (e) to be interpreted in accord with § 1346(b). intended only §§2680(a) and (e) to be interpreted in accord with § 1346(b).

Congress used the phrase "arising out of" for § 2680 exceptions that focus Congress used the phrase "arising out of" for § 2680 exceptions that focus on a governmental act or omission. See §2680(b) (exception for "[a]ny on a governmental act or omission. See §2680(b) (exception for "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of let- claim arising out of the loss, miscarriage, or negligent transmission of let- ters or postal matter"); §2680(h) (no liability for "[any claim arising out ters or postal matter"); §2680(h) (no liability for "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference abuse of process, libel, slander, misrepresentation, deceit, or interference with contractual rights"). Given that usage, and in light of the legislative with contractual rights"). Given that usage, and in light of the legislative

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A

On its face, the foreign-country exception appears to cover On its face, the foreign-country exception appears to cover this litigation. See ante, at 700. Alvarez's suit is predi- this litigation. See ante, at 700. Alvarez's suit is predi- cated on an arrest in Mexico alleged to be "false" only be- cated on an arrest in Mexico alleged to be "false" only be- cause it occurred there. Sosa's conduct in Mexico, implicat- cause it occurred there. Sosa's conduct in Mexico, implicat- ing questions of Mexican law, is, as the Court notes, "the ing questions of Mexican law, is, as the Court notes, "the kernel" of Alvarez's claim. Ante, at 701. Once Alvarez was kernel" of Alvarez's claim. Ante, at 701. Once Alvarez was inside United States borders, the Ninth Circuit observed, no inside United States borders, the Ninth Circuit observed, no activity regarding his detention was tortious. See 331 F. 3d activity regarding his detention was tortious. See 331 F. 3d 604, 636-637 (2003). Government liability to Alvarez, as an- 604, 636-637 (2003). Government liability to Alvarez, as an- alyzed by the Court of Appeals, rested solely upon a false- alyzed by the Court of Appeals, rested solely upon a false- arrest claim.

Id., at 640-641. Just as Alvarez's arrest was arrest claim. Id., at 640-641. Just as Alvarez's arrest was "false," and thus tortious, only because, and only to the ex- "false," and thus tortious, only because, and only to the ex- tent that, it took place and endured in Mexico, so damages tent that, it took place and endured in Mexico, so damages accrued only while the alleged wrongful conduct continued accrued only while the alleged wrongful conduct continued Id., at 636-637. abroad. abroad. Id., at 636-637.

Critical in the Ninth Circuit's view, "DEA agents had no Critical in the Ninth Circuit's view, "DEA agents had no authority under federal law to execute an extraterritorial authority under federal law to execute an extraterritorial arrest of a suspect indicted in federal court in Los Angeles." arrest of a suspect indicted in federal court in Los Angeles."

Id., at 640; see ante, at 700-701, n. 1. See also Fermino v.

Fedco, Inc., 7 Cal. 4th 701, 715, 872 P. 2d 559, 567 (1994) Fedco, Inc., 7 Cal. 4th 701, 715, 872 P. 2d 559, 567 (1994) (defining as tortious "the nonconsensual, intentional con- (defining as tortious "the nonconsensual, intentional con- finement of a person, without lawful privilege, for an appre- finement of a person, without lawful privilege, for an appre- ciable length of time, however short" (emphasis added and ciable length of time, however short" (emphasis added and internal quotation marks omitted)); App. to Pet. for Cert. in internal quotation marks omitted)); App. to Pet. for Cert. in No. 03-339, p. 184a (same). Once Alvarez arrived in El Paso, No. 03-339, p. 184a (same). Once Alvarez arrived in El Paso, Texas, "the actions of domestic law enforcement set in mo- Texas, "the actions of domestic law enforcement set in mo-

history of § 2680(k), omission of a reference to an "act or omission of any history of §2680(k), omission of a reference to an "act or omission of any employee" from that provision may reflect only Congress' attempt to use employee" from that provision may reflect only Congress' attempt to use the least complex statutory language feasible. Cf. Sami v. United States, the least complex statutory language feasible. Cf. Sami v. United States, 617 F. 2d 755, 762, n. 7 (CADC 1979) ("We do not think the omission of a 617 F. 2d 755, 762, n. 7 (CADC 1979) ("We do not think the omission of a specific reference to acts or omissions in § 2680(k) was meaningful or that specific reference to acts or omissions in § 2680(k) was meaningful or that the focus of that exemption shifted from acts or omissions to resultant the focus of that exemption shifted from acts or omissions to resultant injuries."). injuries.").

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tion a supervening prosecutorial mechanism which met all of tion a supervening prosecutorial mechanism which met all of 331 F. 3d, the procedural requisites of federal due process." the procedural requisites of federal due process." 331 F. 3d, at 637; see ante, at 700-701, n. 1. at 637; see ante, at 700-701, n. 1.

Accepting, as the Ninth Circuit did, that no tortious act Accepting, as the Ninth Circuit did, that no tortious act occurred once Alvarez was within United States borders, the occurred once Alvarez was within United States borders, the Government's liability on Alvarez's claim for false arrest nec- Government's liability on Alvarez's claim for false arrest nec- essarily depended on the foreign location of the arrest and essarily depended on the foreign location of the arrest and implicated foreign law. While the Court of Appeals focused implicated foreign law. While the Court of Appeals focused on whether United States law furnished authority to seize on whether United States law furnished authority to seize Alvarez in Mexican territory, see 331 F. 3d, at 626-631, Mexi- Alvarez in Mexican territory, see 331 F. 3d, at 626-631, Mexi- can law equally could have provided--or denied-authority can law equally could have provided—or denied—authority for such an arrest. Had Sosa and the arrest team been Mex- for such an arrest. Had Sosa and the arrest team been Mex- ican law enforcement officers, authorized by Mexican law to ican law enforcement officers, authorized by Mexican law to arrest Alvarez and to hand him over to United States author- arrest Alvarez and to hand him over to United States author- ities, for example, no false-arrest claim would have been ten- ities, for example, no false-arrest claim would have been ten- able. Similarly, there would have been no viable false- able. Similarly, there would have been no viable false- arrest claim if Mexican law authorized a citizen's arrest in arrest claim if Mexican law authorized a citizen's arrest in Indeed, Mexican and the circumstances presented here.

the circumstances presented here. Indeed, Mexican and Honduran agents seized other suspects indicted along with Honduran agents seized other suspects indicted along with Alvarez, respectively in Mexico and Honduras; "Alvarez's ab- Alvarez, respectively in Mexico and Honduras; "Alvarez's ab- duction was unique in that it involved neither the coopera- duction was unique in that it involved neither the coopera- tion of local police nor the consent of a foreign government." tion of local police nor the consent of a foreign government."

Id., at 623, n. 23.

The interpretation of the FTCA adopted by the Ninth Cir- The interpretation of the FTCA adopted by the Ninth Cir- cuit, in short, yielded liability based on acts occurring in cuit, in short, yielded liability based on acts occurring in Mexico that entangled questions of foreign law. Subjecting Mexico that entangled questions of foreign law. Subjecting the United States to liability depending upon the law of a the United States to liability depending upon the law of a foreign sovereign, however, was the very result § 2680(k)'s foreign sovereign, however, was the very result § 2680(k)'s foreign-country exception aimed to exclude. See United foreign-country exception aimed to exclude. See United States v. Spelar, 338 U. S. 217, 221 (1949).

States v. Spelar, 338 U. S. 217, 221 (1949).

B

I would construe the foreign-country exception, § 2680(k), I would construe the foreign-country exception, § 2680(k), in harmony with the FTCA's sovereign-immunity waiver, in harmony with the FTCA's sovereign-immunity waiver, § 1346(b), which refers to the place where the negligent or § 1346(b), which refers to the place where the negligent or intentional act occurred. See Brief for United States in intentional act occurred. See Brief for United States in

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No. 03-485, p. 45 (urging that § 2680(k) should be applied by No. 03-485, p. 45 (urging that § 2680(k) should be applied by looking to "where the prohibited act is committed"); id., at looking to "where the prohibited act is committed"); id., at 46 ("the foreign, country exception must be viewed together 46 ("the foreign country exception must be viewed together with [§]1346," which points to "the law of the place where with [§]1346," which points to "the law of the place where the [allegedly wrongful] act or omission occurred" (inter- the [allegedly wrongful] act or omission occurred" (inter- nal quotation marks and citations omitted and emphasis nal quotation marks and citations omitted and emphasis deleted)). deleted)).

Interpretation of § 2680(k) in the light of § 1346, as the Interpretation of § 2680(k) in the light of § 1346, as the Government maintains, is grounded in this Court's prece- Government maintains, is grounded in this Court's prece- In construing § 2680(k)'s reference to a "foreign coun- dent. dent. In construing § 2680(k)'s reference to a "foreign coun- try," this Court has "draw[n] support from the language of try," this Court has "draw[n] support from the language of § 1346(b), the principal provision of the [FTCA]." Smith v. § 1346(b), the principal provision of the [FTCA]." Smith v.

United States, 507 U. S. 197, 201 (1993) (internal quotation United States, 507 U. S. 197, 201 (1993) (internal quotation marks omitted).

In Smith, the Court held that a wrongful- marks omitted). In Smith, the Court held that a wrongful- death action "based exclusively on acts or omissions occur- death action "based exclusively on acts or omissions occur- ring in Antarctica" was barred by the foreign-country ex- ring in Antarctica" was barred by the foreign-country ex- Id., at 198-199. Were it not, the Court noted, ception. ception. Id., at 198-199. Were it not, the Court noted, "§ 1346(b) would instruct courts to look to the law of a place "§ 1346(b) would instruct courts to look to the law of a place that has no law [i. e., Antarctica] in order to determine the that has no law [i. e., Antarctica] in order to determine the liability of the United States-surely a bizarre result."

Id., liability of the United States—surely a bizarre result." Id., at 201-202. Thus, in Smith, the Court presumed that the at 201-202. Thus, in Smith, the Court presumed that the place "where the act or omission occurred" for purposes of place "where the act or omission occurred" for purposes of the sovereign-immunity waiver, § 1346(b)(1), coincided with the sovereign-immunity waiver, § 1346(b)(1), coincided with the place where the "claim arose]" for purposes of the the place where the "claim ar[ose]" for purposes of the foreign-country exception, § 2680(k). See also Beattie v. foreign-country exception, § 2680(k). See also Beattie v.

United States, 756 F. 2d 91,. 122 (CADC 1984) (Scalia, J., dis- United States, 756 F. 2d 91,.122 (CADC 1984) (Scalia, J., dis- senting) ("[A] claim 'arises' for purposes of § 2680(k) where senting) ("[A] claim `arises' for purposes of § 2680(k) where there occurs the alleged [standard-of-care] violation ... (at- there occurs the alleged [standard-of-care] violation ... (at- tributable to government action or inaction) nearest to the tributable to government action or inaction) nearest to the "); Sami v. United States, 617 F. 2d 755, 761-762 injury .... injury ...."); Sami v. United States, 617 F. 2d 755, 761-762 (CADC 1979) (looking to where "the act or omission com- (CADC 1979) (looking to where "the act or omission com- plained of occurred" in applying § 2680(k)). plained of occurred" in applying § 2680(k)).

Harmonious construction of §§ 1346(b) and 2680(k) accords Harmonious construction of §§ 1346(b) and 2680(k) accords with Congress' intent in enacting the foreign-country excep- with Congress' intent in enacting the foreign-country excep- tion. Congress was "unwilling to subject the United States tion. Congress was "unwilling to subject the United States to liabilities depending upon the laws of a foreign power." to liabilities depending upon the laws of a foreign power."

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Spelar, 338 U.S., at 221. The legislative history of the Spelar, 338 U.S., at 221. The legislative history of the FTCA suggests that Congress viewed cases in which the FTCA suggests that Congress viewed cases in which the relevant act or omission occurred in a foreign country as relevant act or omission occurred in a foreign country as entailing too great a risk of foreign-law application. Thus, entailing too great a risk of foreign-law application. Thus, Assistant Attorney General Francis M. Shea, in explaining Assistant Attorney General Francis M. Shea, in explaining the finally enacted version of the foreign-country exception the finally enacted version of the foreign-country exception to the House Committee on the Judiciary, emphasized that, to the House Committee on the Judiciary, emphasized that, when an act or omission occurred in a foreign country, when an act or omission occurred in a foreign country,

§ 1346(b) would direct a court toward the law of that country:

"Since liability is to be determined by the law of the situs of "Since liability is to be determined by the law of the situs of the wrongful act or omission it is wise to restrict the bill to the wrongful act or omission it is wise to restrict the bill to claims arising in this country." Hearings on H. R. 5373 claims arising in this country." Hearings on H. R. 5373 et al. before the House Committee on the Judiciary, 77th et al. before the House Committee on the Judiciary, 77th Cong., 2d Sess., 35 (1942) (emphasis added); see ante, at 707.2 Cong., 2d Sess., 35 (1942) (emphasis added); see ante, at 707.2 In the enacting Congress' view, it thus appears, §§ 1346(b) In the enacting Congress' view, it thus appears, §§ 1346(b) and 2680(k) were aligned so as to block the United States' and 2680(k) were aligned so as to block the United States' waiver of sovereign immunity when the relevant act or omis- waiver of sovereign immunity when the relevant act or omis- sion took place overseas. See supra, at 752-753, n. 1.

sion took place overseas. See supra, at 752-753, n. 1.

True, the Court has read renvoi into § 1346(b)(1)'s words True, the Court has read renvoi into § 1346(b)(1)'s words "in accordance with the law of." See Richards v. United "in accordance with the law of." See Richards v. United States, 369 U. S. 1, 11 (1962) ("the [FTCA] ... requires appli- States, 369 U. S. 1, 11 (1962) ("the [FTCA] ... requires appli- cation of the whole law of the State where the act or omission cation of the whole law of the State where the act or omission occurred" (emphasis added)).3 That, however, is no reason occurred" (emphasis added)). 3 That, however, is no reason to resist defining the place where a claim arises for § 2680(k) to resist defining the place where a claim arises for § 2680(k) purposes to mean the place where the liability-creating act purposes to mean the place where the liability-creating act

2 The foreign-country exception's focus on the location of the tortious act 2 The foreign-country exception's focus on the location of the tortious act or omission is borne out by a further colloquy during the hearing before or omission is borne out by a further colloquy during the hearing before the House Committee on the Judiciary. A member of that Committee the House Committee on the Judiciary. A member of that Committee asked whether he understood correctly that "any representative of the asked whether he understood correctly that "any representative of the United States who committed a tort in England or some other country United States who committed a tort in England or some other country could not be reached under [the FTCA]." Hearings on H. R. 5373 et al., could not be reached under [the FTCA]." Hearings on H. R. 5373 et al., at 35 (emphasis added). Assistant Attorney General Shea said yes to that at 35 (emphasis added). Assistant Attorney General Shea said yes to that understanding of § 2680(k).

Ibid. understanding of § 2680(k). Ibid.

3 Renvoi is "[t]he doctrine under which a court in resorting to foreign a Renvoi is "Whe doctrine under which a court in resorting to foreign law adopts as well the foreign law's conflict-of-laws principles, which may law adopts as well the foreign law's conflict-of-laws principles, which may in turn refer the court back to the law of the forum." Black's Law Dic- in turn refer the court back to the law of the forum." Black's Law Dic- tionary 1300 (7th ed. 1999). tionary 1300 (7th ed. 1999).

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Opinion of GINSSURG, J or omission occurred, with no renvoi elsewhere.

It is one or omission occurred, with no renvoi elsewhere. It is one thing to apply renvoi to determine which State, within the thing to apply renvoi to determine which State, within the United States, supplies the governing law, quite another to United States, supplies the governing law, quite another to suppose that Congress meant United States courts to ex- suppose that Congress meant United States courts to ex- plore what choice of law a foreign court would make.4 plore what choice of law a foreign court would make. 4

In 1948, when the FTCA was enacted, it is also true, Con- In 1948, when the FTCA was enacted, it is also true, Con- gress reasonably might have anticipated that the then gress reasonably might have anticipated that the then prevailing choice-of-law methodology, reflected in the Re- prevailing choice-of-law methodology, reflected in the Re- statement (First) of Conflicts, would lead mechanically to the statement (First) of Conflicts, would lead mechanically to the law of the place of injury. See Restatement (First) of Con- law of the place of injury. See Restatement (First) of Con- flicts § 377 (1934) ("The place of wrong is in the state where flicts § 377 (1934) ("The place of wrong is in the state where the last event necessary to make an actor liable for an al- the last event necessary to make an actor liable for an al- leged tort takes place."); Richards, 369 U. S., at 11-12 ("The leged tort takes place."); Richards, 369 U. S., at 11-12 ("The general conflict-of-laws rule, followed by a vast majority of general conflict-of-laws rule, followed by a vast majority of the States, [wa]s to apply the law of the place of injury to the States, [wa]s to apply the law of the place of injury to the substantive rights of the parties." (footnote omitted)); the substantive rights of the parties." (footnote omitted)); ante, at 705-707, 708, n. 5 (same). Generally, albeit not al- ante, at 705-707, 708, n. 5 (same). Generally, albeit not al- ways, the place where the negligent or intentional act or ways, the place where the negligent or intentional act or omission takes place coincides with the place of injury.5 omission takes place coincides with the place of injury. 5 Looking to the whole law of the State where the wrongful Looking to the whole law of the State where the wrongful "act or omission occurred" would therefore ordinarily lead to "act or omission occurred" would therefore ordinarily lead to application of that State's own law. But cf. ante, at 707-708, application of that State's own law. But cf. ante, at 707-708, 711-712 (adopting a place-of-injury rule for § 2680(k)).

711-712 (adopting a place-of-injury rule for §2680(k)).

4 Reading renvoi into § 1346(b)(1), even to determine which State sup-

plies the governing law, moreover, is questionable. See Shapiro, Choice plies the governing law, moreover, is questionable. See Shapiro, Choice of Law Under the Federal Tort Claims Act: Richards and Renvoi Revis- of Law Under the Federal Tort Claims Act: Richards and Renvoi Revis- ited, 70 N. C. L. Rev. 641, 679 (1992) ("It is only fair that federal liability ited, 70 N. C. L. Rev. 641, 679 (1992) ("It is only fair that federal liability be determined by the law where the federal employee's negligence took be determined by the law where the federal employee's negligence took place, as Congress intended. The simplicity of the internal law approach place, as Congress intended. The simplicity of the internal law approach is preferable to the complexity and opportunity for manipulation of [Rich- is preferable to the complexity and opportunity for manipulation of [Rich- ards'] whole law construction.").

ards'] whole law construction. ").

I Enacting the FTCA, Congress was concerned with quotidian "wrongs

6 Enacting the FTCA, Congress was concerned with quotidian "wrongs

which would have been actionable if inflicted by an individual or a corpora- which would have been actionable if inflicted by an individual or a corpora- tion," Feres v. United States, 340 U. S. 135, 139-140 (1950), such as vehicu- tion," Feres v. United States, 340 U. S. 135, 139-140 (1950), such as vehicu- lar accidents, see S. Rep. No. 1400, 79th Cong., 2d Sess., 31 (1946). See lar accidents, see S. Rep. No. 1400, 79th Cong., 2d Sess., 31 (1946). See also ante, at 706, n. 4. The place of injury in such torts almost inevitably also ante, at 706, n. 4. The place of injury in such torts almost inevitably would be the place the act or omission occurred as well. would be the place the act or omission occurred as well.

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II

The Ninth Circuit concluded that the foreign-country ex- The Ninth Circuit concluded that the foreign-country ex- ception did not bar Alvarez's false-arrest claim because that ception did not bar Alvarez's false-arrest claim because that claim "involve[d] federal employees working from offices in claim "involve[d] federal employees working from offices in the United States to guide and supervise actions in other the United States to guide and supervise actions in other countries." 331 F. 3d, at 638.

In so holding, the Court countries." 331 F. 3d, at 638. In so holding, the Court of Appeals applied a "'headquarters doctrine,"' whereby of Appeals applied a "'headquarters doctrine,"' whereby "a claim can still proceed . . . if harm occurring in a for- "a claim can still proceed ... if harm occurring in a for- eign country was proximately caused by acts in the United eign country was proximately caused by acts in the United States." Ibid.

States." Ibid.

There is good reason to resist the headquarters doctrine There is good reason to resist the headquarters doctrine described and relied upon by the Ninth Circuit. The Court described and relied upon by the Ninth Circuit. The Court of Appeals' employment of that doctrine renders the FTCA's of Appeals' employment of that doctrine renders the FTCA's foreign-country exception inapplicable whenever some au- foreign-country exception inapplicable whenever some au- thorization, support, or planning takes place in the United thorization, support, or planning takes place in the United States. But "it will virtually always be possible to assert States. But "it will virtually always be possible to assert that the negligent [or intentional] activity that injured the that the negligent [or intentional] activity that injured the plaintiff was the consequence of faulty training, selection or plaintiff was the consequence of faulty training, selection or supervision-or even less than that, lack of careful training, supervision—or even less than that, lack of careful training, selection or supervision-in the United States." Beattie, selection or supervision—in the United States." Beattie, 756 F. 2d, at 119 (Scalia, J., dissenting); see ante, at 702-703 756 F. 2d, at 119 (Scalia, J., dissenting); see ante, at 702-703 (same). Hence the headquarters doctrine, which considers (same). Hence the headquarters doctrine, which considers whether steps toward the commission of the tort occurred whether steps toward the commission of the tort occurred within the United States, risks swallowing up the foreign- within the United States, risks swallowing up the foreign- country exception.

country exception.

Furthermore, the Court of Appeals failed to address the Furthermore, the Court of Appeals failed to address the choice-of-law question implicated by both §§ 1346(b) and choice-of-law question implicated by both H 1346(b) and 2680(k) whenever tortious acts are committed in multiple 2680(k) whenever tortious acts are committed in multiple states. Both those provisions direct federal courts "in states. Both those provisions direct federal courts "in multistate tort actions, to look in the first instance to the law multistate tort actions, to look in the first instance to the law of the place where the acts of negligence [or the intentional of the place where the acts of negligence [or the intentional tort] took place." Richards, 369 U. S., at 10.

In cases in- tort] took place." Richards, 369 U. S., at . 10. In cases in- volving acts or omissions in several states, the question is volving acts or omissions in several states, the question is which acts count. "Neither the text of the FTCA nor Rich- which acts count. "Neither the text of the FTCA nor Rich- ards provides any guidance . . - when the alleged acts or ards provides any guidance ..: when the alleged acts or omissions occur in more than one state. Moreover, the leg- omissions occur in more than one state. Moreover, the leg-

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islative history of the FTCA sheds no light on this problem." islative history of the FTCA sheds no light on this problem."

Gould Electronics Inc. v. United States, 220 F. 3d 169, 181 Gould Electronics Inc. v. United States, 220 F. 3d 169, 181 (CA3 2000); see Raflo v. United States, 157 F. Supp. 2d 1, 9 (CA3 2000); see Raflo v. United States, 157 F. Supp. 2d 1, 9 (DC 2001) (same).

(DC 2001) (same).

Courts of appeals have adopted varying approaches to this Courts of appeals have adopted varying approaches to this question. See Simon v. United States, 341 F. 3d 193, 202 question. See Simon v. United States, 341 F. 3d 193, 202 (CA3 2003) (listing five different choice-of-law methodologies (CA3 2003) (listing five different choice-of-law methodologies for § 1346(b)(1)); Gould Electronics, 220 F. 3d, at 181-183 for § 1346(b)(1)); Gould Electronics, 220 F. 3d, at 181-183 (same). 6 Having canvassed those different approaches, (same).s Having canvassed those different approaches, Third Circuit Judge Becker concluded that "clarity is the Third Circuit Judge Becker concluded that "clarity is the most important virtue in crafting a rule by which [a federal most important virtue in crafting a rule by which [a federal court would] choose a jurisdiction." Simon, 341 F. 3d, at court would] choose a jurisdiction." Simon, 341 F. 3d, at

204. Eschewing "vague and overlapping" approaches that

yielded "indeterminate" results, Judge Becker "appl[ied] yielded "indeterminate" results, Judge Becker "appl[ied] [under § 1346(b)(1)] the choice-of-law regime of the jurisdic- [under § 1346(b)(1)] the choice-of-law regime of the jurisdic- tion in which the last significant act or omission occurred. tion in which the last significant act or omission occurred.

This has the salutary effect of avoiding the selection of a This has the salutary effect of avoiding the selection of a jurisdiction based on a completely incidental 'last contact,' jurisdiction based on a completely incidental `last contact,'

6 As cataloged by the Court of Appeals for the Third Circuit, these are: 6 As cataloged by the Court of Appeals for the Third Circuit, these are: "(1) applying different rules to different theories of liability; (2) choosing "(1) applying different rules to different theories of liability; (2) choosing the place of the last allegedly-wrongful act or omission; (3) determining the place of the last allegedly-wrongful act or omission; (3) determining which asserted act of wrongdoing had the most significant effect on the which asserted act of wrongdoing had the most significant effect on the injury; (4) choosing the state in which the United States' physical actions injury; (4) choosing the state in which the United States' physical actions could have prevented injury; and (5) determining where the 'relevant' act could have prevented injury; and (5) determining where the `relevant' act or omission occurred." Simon, 341 F. 3d, at 202. For cases applying and or omission occurred." Simon, 341 F. 3d, at 202. For cases applying and discussing one or another of those five approaches, see Ducey v. United discussing one or another of those five approaches, see Ducey v. United States, 713 F. 2d 504, 508, n. 2 (CA9 1983) (considering where "physical States, 713 F. 2d 504, 508, n. 2 (CA9 1983) (considering where "physical acts" that could have prevented the harm would have occurred); Hitchcock acts" that could have prevented the harm would have occurred); Hitchcock

v. United States, 665 F. 2d 354, 359 (CADC 1981) (looking for the "rele-

i v. United States, 665 F. 2d 354, 359 (CADC 1981) (looking for the "rele- vant" act or omission); Bowen v. United States, 570 F. 2d 1311, 1318 (CA7 vant" act or omission); Bowen v. United States, 570 F. 2d 1311, 1318 (CA7 1978) (noting "the alternatives of the place of the last act or omission 1978) (noting "the alternatives of the place of the last act or omission having a causal effect, or the place of the act or omission having the most having a causal effect, or the place of the act or omission having the most significant causal effect," but finding that both rules would lead to the significant causal effect," but finding that both rules would lead to the same place); Raflo v. United States, 157 F. Supp. 2d 1, 10 (DC 2001) (apply- same place); Raflo v. United States, 157 F. Supp. 2d 1, 10 (DC 2001) (apply- ing Hitchcock's relevance test by looking for the place where the "most ing Hitchcock's relevance test by looking for the place where the "most substantial portion of the acts or omissions occurred"); Kohn v. United substantial portion of the acts or omissions occurred"); Kohn v. United States, 591 F. Supp. 568, 572 (EDNY 1984) (applying different States' States, 591 F. Supp. 568, 572 (EDNY 1984) (applying different States' choice-of-law rules on an act-by-act basis).

choice-of-law rules on an act-by-act basis).

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while also avoiding the conjecture that [alternative] inquires while also avoiding the conjecture that [alternative] inquires I agree. often entail." often entail." Ibid. I agree.

Ibid.

A "last significant act or omission" rule applied under A "last significant act or omission" rule applied under § 2680(k) would close the door to the headquarters doctrine § 2680(k) would close the door to the headquarters doctrine as applied by the Ninth Circuit in this litigation. By direct- as applied by the Ninth Circuit in this litigation. By direct- ing attention to the place where the last significant act or ing attention to the place where the last significant act or omission occurred, rather than to a United States location omission occurred, rather than to a United States location where some authorization, support, or planning may have where some authorization, support, or planning may have taken place, the clear rule advanced by Judge Becker pre- taken place, the clear rule advanced by Judge Becker pre- serves § 2680(k) as the genuine limitation Congress intended serves § 2680(k) as the genuine limitation Congress intended it to be.

it to be.

The "last significant act or omission" rule works in this The "last significant act or omission" rule works in this litigation to identify Mexico, not California, as the place litigation to identify Mexico, not California, as the place where the instant controversy arose. I would apply that where the instant controversy arose. I would apply that rule here to hold that Alvarez's tort claim for false ar- rule here to hold that Alvarez's tort claim for false ar- rest under the FTCA is barred under the foreign-country rest under the FTCA is barred under the foreign-country exception. exception.

Accordingly, I concur in the Court's judgment and concur Accordingly, I concur in the Court's judgment and concur

in Parts I, III, and IV of its opinion. in Parts I, III, and IV of its opinion.

JUSTICE BREYER, concurring in part and concurring in JUSTICE BREYER, concurring in part and concurring in

the judgment. the judgment.

I join JUSTICE GINSBURG'S concurrence and join the I join JUSTICE GINSBURG's concurrence and join the Court's opinion in respect to the Alien Tort Statute (ATS) Court's opinion in respect to the Alien Tort Statute (ATS) claim. The Court says that to qualify for recognition under claim. The Court says that to qualify for recognition under the ATS a norm of international law must have a content as the ATS a norm of international law must have a content as definite as, and an acceptance as widespread as, those that definite as, and an acceptance as widespread as, those that characterized 18th-century international norms prohibiting characterized 18th-century international norms prohibiting piracy. Ante, at 732. The norm must extend liability to the piracy. Ante, at 732. The norm must extend liability to the type of perpetrator (e. g., a private actor) the plaintiff seeks type of perpetrator (e. g., a private actor) the plaintiff seeks to sue. Ante, at 732, n. 20. And Congress can make clear to sue. Ante, at 732, n. 20. And Congress can make clear that courts should not recognize any such norm, through a that courts should not recognize any such norm, through a direct or indirect command or by occupying the field. See direct or indirect command or by occupying the field. See ante, at 731. The Court also suggests that principles of ex- ante, at 731. The Court also suggests that principles of ex- haustion might apply, and that courts should give "serious haustion might apply, and that courts should give "serious weight" to the Executive Branch's view of the impact on for- weight" to the Executive Branch's view of the impact on for-

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eign policy that permitting an ATS suit will likely have in a eign policy that permitting an ATS suit will likely have in a given case or type of case. Ante, at 733, n. 21. I believe given case or type of case. Ante, at 733, n. 21. I believe all of these conditions are important. all of these conditions are important.

I would add one further consideration. Since enforcement I would add one further consideration. Since enforcement of an international norm by one nation's courts implies that of an international norm by one nation's courts implies that other nations' courts may do the same, I would ask whether other nations' courts may do the same, I would ask whether the exercise of jurisdiction under the ATS is consistent with the exercise of jurisdiction under the ATS is consistent with those notions of comity that lead each nation to respect the those notions of comity that lead each nation to respect the sovereign rights of other nations by lirfiiting the reach of its sovereign rights of other nations by limiting the reach of its In applying those principles, laws and their enforcement. laws and their enforcement. In applying those principles, courts help ensure that "the potentially conflicting laws of courts help ensure that "the potentially conflicting laws of different nations" will "work together in harmony," a matter different nations" will "work together in harmony," a matter of increasing importance in an ever more interdependent of increasing importance in an ever more interdependent world. F. Hoffmann-La Roche Ltd v. Empagran S. A., world. F. Hoffmann-La Roche Ltd v. Empagran S. A., ante, at 164; cf. Murray v. Schooner Charming Betsy, 2 ante, at 164; cf. Murray v Schooner Charming Betsy, 2 Cranch 64, 118 (1804). Such consideration is necessary to Cranch 64, 118 (1804). Such consideration is necessary to ensure that ATS litigation does not undermine the very har- ensure that ATS litigation does not undermine the very har- mony that it was intended to promote. See ante, at 715-718.

mony that it was intended to promote. See ante, at 715-718.

These comity concerns normally do not arise (or at least These comity concerns normally do not arise (or at least are mitigated) if the conduct in question takes place in the are mitigated) if the conduct in question takes place in the country that provides the cause of action or if that conduct country that provides the cause of action or if that conduct involves that country's own national-where, say, an Ameri- involves that country's own national—where, say, an Ameri- can assaults a foreign diplomat and the diplomat brings suit can assaults a foreign diplomat and the diplomat brings suit in an American court. See Restatement (Third) of Foreign in an American court. See Restatement (Third) of Foreign Relations Law of the United States §§ 402(1), (2) (1986) Relations Law of the United States §§ 402(1), (2) (1986) (hereinafter Restatement) (describing traditional bases of (hereinafter Restatement) (describing traditional bases of territorial and nationality jurisdiction). They do arise, how- territorial and nationality jurisdiction). They do arise, how- ever, when foreign persons injured abroad bring suit in the ever, when foreign persons injured abroad bring suit in the United States under the ATS, asking the courts to recognize United States under the ATS, asking the courts to recognize a claim that a certain kind of foreign conduct violates an a claim that a certain kind of foreign conduct violates an international norm.

international norm.

Since different courts in different nations will not neces- Since different courts in different nations will not neces- sarily apply even similar substantive laws similarly, work- sarily apply even similar substantive laws similarly, work- able harmony, in practice, depends upon more than substan- able harmony, in practice, depends upon more than substan- tive uniformity among the laws of those nations. That is to tive uniformity among the laws of those nations. That is to say, substantive uniformity does not automatically mean say, substantive uniformity does not automatically mean

762 SOSA v. ALVAREZ-MACHAIN SOSA v. ALVAREZ-MACHAIN

Opinion of BREYER, J.

Opinion of BR,EYER, J.

that universal jurisdiction is appropriate. Thus, in the 18th that universal jurisdiction is appropriate. Thus, in the 18th century, nations reached consensus not only on the substan- century, nations reached consensus not only on the substan- tive principle that acts of piracy were universally wrong but tive principle that acts of piracy were universally wrong but also on the jurisdictional principle that any nation that found also on the jurisdictional principle that any nation that found a pirate could prosecute him. See, e. g., United States v. a pirate could prosecute him. See, e. g., United States v.

Smith, 5 Wheat. 153, 162 (1820) (referring to "the general Smith, 5 Wheat. 153, 162 (1820) (referring to "the general practice of all nations in punishing all persons, whether na- practice of all nations in punishing all persons, whether na- tives or foreigners, who have committed [piracy] against any tives or foreigners, who have committed [piracy] against any persons whatsoever, ivith whom they are in amity"). persons whatsoever, with whom they are in amity").

Today international law will sometimes similarly reflect Today international law will sometimes similarly reflect not only substantive agreement as to certain universally con- not only substantive agreement as to certain universally con- demned behavior but also procedural agreement that univer- demned behavior but also procedural agreement that univer- sal jurisdiction exists to prosecute a subset of that behavior. sal jurisdiction exists to prosecute a subset of that behavior.

See Restatement § 404, and Comment a; International Law See Restatement §404, and Comment a; International Law Association, Final Report on the Exercise of Universal Juris- Association, Final Report on the Exercise of Universal Juris- diction in Respect of Gross Human Rights Offences 2 (2000). diction in Respect of Gross Human Rights Offences 2 (2000).

That subset includes torture, genocide, crimes against hu- That subset includes torture, genocide, crimes against hu- manity, and war crimes. See id., at 5-8; see also, e.g., manity, and war crimes. See id., at 5-8; see also, e.g., 155- Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Prosecutor v. Furundzija, Case No. IT-95-17/1—T, 11155- 156 (International Tribunal for Prosecution of Persons Re- 156 (International Tribunal for Prosecution of Persons Re- sponsible for Serious Violations of International Humanitar- sponsible for Serious Violations of International Humanitar- ian Law Committed in Territory of Former Yugoslavia Since ian Law Committed in Territory of Former Yugoslavia Since 1991, Dec. 10, 1998); Attorney Gen. of Israel v. Eichmann, 1991, Dec. 10, 1998); Attorney Gen. of Israel v. Eichmann, 36 I. L. R. 277 (Sup. Ct. Israel 1962).

36 I. L. R. 277 (Sup. Ct. Israel 1962).

The fact that this procedural consensus exists suggests The fact that this procedural consensus exists suggests that recognition of universal jurisdiction in respect to a lim- that recognition of universal jurisdiction in respect to a lim- ited set of norms is consistent with principles of international ited set of norms is consistent with principles of international comity. That is, allowing every nation's courts to adjudicate comity. That is, allowing every nation's courts to adjudicate foreign conduct involving foreign parties in such cases will foreign conduct involving foreign parties in such cases will not significantly threaten the practical harmony that comity not significantly threaten the practical harmony that comity principles seek to protect. That consensus concerns crimi- principles seek to protect. That consensus concerns crimi- nal jurisdiction, but consensus as to universal criminal juris- nal jurisdiction, but consensus as to universal criminal juris- diction itself suggests that universal tort jurisdiction would diction itself suggests that universal tort jurisdiction would be no more threatening. Cf. Restatement §404, Comment be no more threatening. Cf. Restatement §404, Comment

b. That is because the criminal courts of many nations com-

bine civil and criminal proceedings, allowing those injured bine civil and criminal proceedings, allowing those injured

Cite as: 542 U. S. 692 (2004) Cite as: 542 U. S. 692 (2004)

763

Opinion of BREYER, J.

by criminal conduct to be represented, and to recover dam- by criminal conduct to be represented, and to recover dam- ages, in the criminal proceeding itself. Brief for European ages, in the criminal proceeding itself. Brief for European Commission as Amicus Curiae 21, n. 48 (citing 3 Y Donzal- Commission as Amicus Curiae 21, n. 48 (citing 3 Y. Donzal- laz, La Convention de Lugano du 16 septembre 1988 concern- laz, La Convention de Lugano du 16 septembre 1988 concern- ant la competence judiciaire et l'ex~cution des d6cisions en ant la compétence judiciaire et l'exécution des décisions en

5203-5272 (1998); EC

mati~re civile et commerciale, matière civile et commerciale, ¶¶ 5203-5272 (1998); EC Council Regulation Art. 5, §4, No. 44/2001, 2001 0. J. (L 12/ Council Regulation Art. 5, §4, No. 44/2001, 20010. J (L 12/

1) (Jan. 16, 2001)). Thus, universal criminal jurisdiction nec-

essarily contemplates a significant degree of civil tort recov- essarily contemplates a significant degree of civil tort recov- ery as well. ery as well.

Taking these matters into account, as I believe courts Taking these matters into account, as I believe courts should, I can find no similar procedural consensus supporting should, I can find no similar procedural consensus supporting the exercise of jurisdiction in these cases. That lack of con- the exercise of jurisdiction in these cases. That lack of con- sensus provides additional support for the Court's conclusion sensus provides additional support for the Court's conclusion that the ATS does not recognize the claim at issue here- that the ATS does not recognize the claim at issue here— where the underlying substantive claim concerns arbitrary where the underlying substantive claim concerns arbitrary arrest, outside the United States, of a citizen of one foreign arrest, outside the United States, of a citizen of one foreign country by another. country by another.