Roadblocks to Remedies: Recently-Developed Barriers to Relief for Aliens Injured by U.S. Officials, Contrary to the Founders’ Intent

The premise of this article is that the founding generation of the United States intended that non-citizens harmed by U.S. officials, especially those harmed in violation of international law, would be provided a judicial remedy in the form of damages, consistent with international law. In fact, throughout the 1800s and most of the 1900s, aliens were able to recover damages for such violations, consistent with the founders’ intentions. However, in the 1980s, both Congress and federal courts began creating roadblocks to judicial remedies for those suffering such harms. These developments contradict the founders’ intent and the country’s practice throughout most of its history. In addition, federal courts continue to hold foreign officials liable in claims brought by non-citizens for the same customary international law violations for which it fails to hold U.S. officials liable, resulting in an ugly hypocrisy. The article acknowledges that the United States’ role and status in the world is different today than it was at the country’s founding, but suggests that United States’ compliance with international law – including ensuring a remedy when its officials commit torts against non-citizens in violation of international law and the U.S. Constitution – is as relevant today as it was then. Finally, the article proposes various actions Congress and the courts should take to in order to comply with the founders’ intent (and international law obligations) to provide for judicial remedies to aliens who suffer harm from torts in violation of their rights under both customary international law and the U.S. Constitution. Although scholars have discussed the fact that the Alien Tort Statute, enacted in 1789, had U.S. citizens in mind as defendants, the scholarly literature has largely overlooked the fact that the ATS evidences an intent by the founding generation to ensure that aliens were provided remedies for harms from torts in violation of their legal rights by U.S. officials. Scholars have also generally overlooked the practice of U.S. courts and Congress to assure such remedies during the 1800s and well into the 1900s. Moreover, although some scholars have discussed various doctrines that have resulted in U.S. courts being unable or unwilling to hold U.S. officials liable for torts in violation of both international and Constitutional law, no scholar has yet described how the several statutes and common law doctrines developed over the last thirty years have worked together to create roadblocks to remedies for aliens harmed by the actions of U.S. officials.