IF THE PRESIDENT ORDERS AN ATTACK OF IRAQ WITHOUT SECURITY COUNCIL APPROVAL, CAN INJURED IRAQIS SUE THE PRESIDENT IN U.S. COURTS?

By GEORGE P. FLETCHER
Wednesday, Sep. 25, 2002

The Iraqi survivors seek some way to hold the United States accountable for actions that apparently violated international law. So they decide to bring a multi-billion dollar class action in the United States, under the Alien Tort Claims Act (ATCA). They name George W. Bush as a defendant.

Bizarre? Not really. The ATCA is a federal statue that allows suits in federal courts "by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The tort need not occur in the United States, as past ATCA suits have shown.

Would the survivors have a chance in court? My answer: More than you might think.

The Alien Tort Claims Act and Its History

The ATCA dates back to the Judicial Act of 1789, but it lay dormant in the federal code - unused by plaintiffs - until 1980.

In that year, in a path-blazing precedent, the U.S. Court of Appeals for the Second Circuit held that Paraguayan nationals living in the United States could go forward with an ATCA suit against the former police chief of Paraguay, who they alleged tortured their son. The theory of the parents' complaint was that torture constituted a violation of international law and thus was a proper basis for an ATCA claim.

Why An Unapproved Attack Likely Violates International Law

Our hypothetical ATCA case against the President would require the survivors to allege, and ultimately prove, that an attack against Iraq, undertaken without approval by the Security Council, constitutes a violation of international law. This should not be difficult.

The United Nations Charter prohibits the use of military force except in cases of self-defense where "an armed attack occurs." Iraq is far from engaging in armed attack against the United States or anyone else. Moreover, if the United States has an argument based upon a theory of self-defense going beyond the Charter, the Bush Administration has yet to make it, as I discussed in an earlier column.

For all these reasons, it seems that survivors of an unapproved Iraq attack would probably be able to succeeding in showing that the attack violated international law.

The ATCA Would Make The President Liable for A Law-Violating Attack

Moreover, this showing is, in essence, the whole ballgame. An ATCA case is simple: the plaintiffs must be aliens who suffered from injuries caused by a violation of international law. Here, the plaintiffs would be aliens - Iraqis. The law violation could probably be shown, as discussed above. And the plaintiffs' injuries would come directly from the law violation - they would be injured, in our hypothetical, as a direct result of the unauthorized attack. The President, in short, would be liable.

That is, of course, a startling conclusion. And, of course, there are many possible objections to this conclusion - based on doctrines the federal court could invoke to protect the President from liability, such as the political question doctrine and the assertion of presidential immunity.

Could the "Political Question" Doctrine Save the President From Liability?

First, let's consider the "political question" doctrine. Courts do sometimes abstain from hearing cases on the ground that the question is "political" and therefore not "justiciable." Put more simply, courts sometimes think they are the wrong branch of government to resolve a question. But the "political question" doctrine, once influential, has lost ground dramatically in the last few decades.

In Baker v. Carr, the famous "one person, one vote" decision of 1962, Justice Brennan outlined three primary categories of cases that are "nonjusticiable" - that is, not appropriate for the courts to resolve, despite the fact that the law gives the courts jurisdiction over these cases. Let us consider them in turn.

First, according to Justice Brennan, there are cases in which the Constitution has clearly vested the power to decide the question in another branch of government. But this is not one of them.

The organ that should consider the permissibility of an attack against Iraq is the Security Council of the United Nations - not the President or Congress. We are bound by treaty to respect the decisions of the Council, and treaties are part of the supreme law of the land. It is the judiciary's job to apply that law.

But what is "the issue" that is supposedly vested in Congress or the Executive Branch? The question is whether to declare war. That is not the issue the ATCA case raises. It raises an issue that is vested in the courts: the issue of whether the attack is permissible under international law. The Constitution does not privilege either the legislature or the executive to determine the legality of conduct under the law of nations - and indeed, both branches would have an obvious conflict of interest in passing on the legality or illegality of conduct they themselves had approved!

Justice Brennan's second category of "nonjusticiable" cases are those that are difficult to decide because there are no "clear legal standards for resolving" the dispute. This is not such a case. The Charter of the United Nations provides clearly that in the absence of an armed attack no nation has the right to deploy force in alleged self-defense. The White House has clearly identified its intent to attack pre-emptively, not in self-defense. (Again, this issue is explored further in my earlier column.)

Finally, Justice Brennan mentioned a third, more open-ended category of cases: where deciding the case would unduly intrude upon policy decisions or show "lack of respect" for the other branches of government. Some might say that an ATCA suit against the President would fall into this category - with the court, if it decided the case, expressing disrespect for the President. But it is hard to find ATCA cases that invoke this argument in similar situations.

Granted, courts have declined jurisdiction before in suits against the president. When President Reagan sent troops to El Salvador in the early 1980s, 29 members of Congress sued him and members of his cabinet for violating a federal statute designed to avoid the situation that arose in Vietnam - a president's committing troops and leading the country into a de facto war. The federal district court balked and dismissed the action as a political question. There were too many uncertain subtle questions of fact for the Court to order the President to comply with the law. Unsurprisingly, the court did not want to order the President to withdraw troops.

In contrast, our hypothetical ATCA case does not require the court to issue any injunction against the President. At most, the court would order a damages award to make the President pay for the harm that his illegal war caused.

Would an order to make compensation express "disrespect" for the President? Hardly. It is simply holding the President to the law. Would impeaching Nixon for lawbreaking have expressed "disrespect" for him - or respect for the law? The dominant message of judicial action would be respect for both federal and international law: if a political officer violates the law, he or she must pay for the harm done.

Could the President Claim Immunity From Suit?

Nonetheless, the President might claim absolute immunity against suit. His argument would be based on the controversial 5-4 Supreme Court decision in Nixon v. Fitzgerald. There, the court held in June 1982 that the president enjoys immunity against suit for actions done in his official capacities, unless Congress has clearly legislated to the contrary. (The later Clinton v. Jones decision addressed the separate question of Presidential immunity for actions done in his personal capacity.)

The Nixon decision might be sufficient to justify dismissal of a class action under the ATCA. However, as with the political question doctrine, the Nixon decision's precedential authority is considerably weaker than it once was.

This point is highly relevant because if the Iraqi plaintiffs in the class action suit rely upon international law, they could presumably invoke the latest developments of that body of law - including the abolition of immunity accorded to heads of state. Although domestic U.S. law might grant the President immunity, international law does not - and under the ATCA, international law is what the court must look to.

That is as it should be. As Justice Blackmun wrote in his opinion for three of the dissenters in the 1982 Nixon case, "[N]o man, not even the President of the United States, is absolutely and fully above the law."

The changes that have occurred since 1982 in international law, and in the use of the ATCA to grant relief for alien plaintiffs, lend our hypothetical Iraqi survivor ATCA suit more plausibility. Whether the suit would succeed or not, it raises issues that compel our attention. There is no need to enjoin the President to act, or refrain from acting, in his conduct of the war. But a judgment requiring compensation would demonstrate that even the president is bound by the basic principles of international law.


George P. Fletcher is Cardozo Professor of Jurisprudence at the Columbia Law School and author, most recently, of Romantics at War: Glory and Guilt in the Age of Terrorism.

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