On February 28, 2012, the U.S. Supreme Court heard arguments in the case of Mohamad v. Palestinian Authority. Although the Mohamad case was largely overs
hadowed by Kiobel v. Royal Dutch Petroleum, argued on the same day, the rare unanimous decision handed down on April 18 has potentially large consequences for both American national security and the international community.
The facts in the case are both simple and tragic: Azzam Rahim, a naturalized American citizen, visited his native Palestine in 1995. While there, Palestinian intelligence officials arrested, tortured, and killed him. His son then brought a lawsuit against the Palestinian Authority and the PLO under the Torture Victim Protection Act of 1991(TVPA), which provides torture victims or their families with a civil cause of action against “any individual, who under actual or apparent color of law, of any foreign nation…subjects [another] individual to torture [or extrajudicial killing].” The TVPA was enacted as part of the Alien Tort Statute (ATS), 28 U.S.C. § 1350, which allows U.S. federal courts to exercise jurisdiction over suits by foreigners for torts committed abroad. Unlike the ATS, however, the TVPA provides an actual cause of action for plaintiffs, and so has the potential to provide victims of torture with significant financial compensation for their injuries. The biggest question when interpreting this law has been the scope of the word “individual.” While “individual” in statutory construction generally applies only to “natural persons,” the petitioners in Mohamad argued that this law could apply to torture committed by “nonsovereign organizations” such as the PLO. The Court, unsurprisingly, disagreed.
Looking at the plain language of the statute, the Court, led by Justice Sotomayor, found that Congress intended “individual” to mean only a human being. The Court looked at both the plain meaning of the word “individual” in both the Random House and Oxford dictionaries, and at the lack of legislative intent to expand liability towards “persons,” a term that generally encompasses corporations and other such entities. Justice Sotomayor gave examples of laws, such as the Federal Courts Administration Act of 1992, in which Congress used “person” as a way to express its desire to extend liability to corporations and other organizations. When Congress did not include such an explicit statement, she said, the word “individual” could only be read in its narrow meaning. Such a reading is consistent with past decisions on the TVPA, and with the Supreme Court’s desire to read laws narrowly, in accord with Congress’ intent, whenever possible.
This succinct and somewhat simple holding, however, makes it effectively impossible for plaintiffs to recover damages for torture in U.S. courts. Prior to Mohamad, plaintiffs attempting to recover under the law already had one difficult hurdle to overcome: namely that the “individual” responsible for torture had to have been acting “under actual or apparent color of law,” or with the blessing of a foreign nation. Aside from the sheer difficulty of
proving that a perpetrator of torture acted with the blessing of his home state, this requirement veers into the territory of sovereign immunity. The Foreign Sovereign Immunities Act provides states and their agents with immunity from U.S. courts in a wide range of areas, subject to limited exceptions such as commercial transactions. It is widely acknowledged that the TVPA does not provide an exemption from this immunity. The holding in Mohamad adds just another large obstacle to potential plaintiffs’ claims: an individual perpetrator must be just that, an individual person. This means that anyone tortured by Al Qaeda, Hezbollah, Hamas, or any other terrorist group cannot bring a lawsuit against his torturers unless he can both identify an individual person who committed the acts and prove that the individual was acting as an agent of a recognized government. Given that most terrorist groups acts outside the effective control of sovereign governments, such a lawsuit seems particularly futile.
It is perhaps easy to classify the Mohamad holding as only affecting a small class of people, with little or no relation to American national security interests. American national security, however, does not exist in a vacuum. It exists in the chaotic and uncertain world of international law, in which there are few rules and even fewer ways to enforce those rules. States and organizations largely look out for their own interests, and the primary enforcement mechanisms, short of UN sanctions or Security Council action, are comity between nations, accountability, and reciprocity. These “enforcement mechanisms” are of course largely ineffective at coercing an international entity into complying with any kind of law. The International Criminal Court, for example, cannot enforce its three year old arrest warrant for Sudanese President Omar al-Bashir, despite his wide visibility in the international community. Other nations have refused to respect the warrant, citing primarily political concerns. After Mohamad, it is not hard to imagine that many terrorist organizations will see a similar opportunity. If the TVPA only applies to individuals, these organizations will have no legal consequences for their actions in U.S. courts, and, if the Bashir case is any indication, only very limited ones in international court.
In addition, individuals still have few rights in the international community, as the primary actors on the world stage are still largely states. The rights individuals do have consist mostly of procedural rights to bring cases before international tribunals. Given the primitive nature of international tribunals, it is often difficult for victims to actually obtain justice. Some states allow victims to sue in domestic courts, but obtaining jurisdiction over perpetrators is difficult. With the narrowing of the TVPA, individual citizens will have even fewer procedural rights against perpetrators of torture. What the Mohamed holding has the potential to do, therefore, is empower the groups that practice torture, while taking power away from the victims of torture. Such an outcome would clearly serve to decrease the security of individuals worldwide, and as a result increase the potential threats to both international and national security.