Steven R. Swanson (Hamline University School of Law) has posted a new article on SSRN called “Terrorism, Piracy, and the Alien Tort Statute” , Rutgers Law Journal, Vol. 40, p. 159. Here is the abstract:
The drafters of the Judiciary Act of 1789 included a provision allowing the federal district courts jurisdiction over claims brought by aliens for tort in violation of international law known as the Alien Tort Statute (“ATS”). Mostly ignored for 200 years, the statute was revitalized in the 1980s by courts willing to hear cases based on modern international law violations. A split in the federal courts developed on whether any new claims should be recognized, and if they should, which claims should be allowed. Ultimately, the Supreme Court determined that new claims did exist under the ATS, but only to the extent that the international law norms enforced had the same international acceptance and specificity as three norms available in the eighteenth century: safe-conducts, infringements of the rights of ambassadors, and piracy. Following this decision, the lower courts were somewhat at a loss as to its application, and a dispute has arisen over whether acts of terrorism should be included within the ATS ambit. In this article, I argue that terrorism claims should be included. I review the development of international law relating to terrorism and compare it to the state of the law on piracy in the eighteenth century, and conclude that piracy and terrorism norms have enjoyed a similar level of international acceptance and specificity. Pointing out the need for United States uniformity and leadership in this area, I propose that the federal courts should allow terrorism claims to be brought under the ATS.