Upsetting Checks and Balances: The Bush Administration's Efforts to Limit Human Rights Litigation

17 Harvard Human Rights Journal 169 (2004)

Posted: 24 Jun 2015

Date Written: 2004

Abstract

The administration of President George W. Bush has launched a concerted effort to overturn Filártiga v. Peña-Irala, the groundbreaking decision holding that the Alien Tort Claims Act (ATCA) authorizes victims of egregious human rights abuses to seek damages in U.S. federal courts through civil lawsuits. These human rights lawsuits contribute to the worldwide movement for accountability by exposing abuses committed by private individuals, corporations, and government officials and by compensating victims. The cases also further the development of international human rights norms, helping to clarify and enforce the growing body of international law that prohibits abuses such as genocide, torture, extrajudicial execution, and crimes against humanity.

Both the Carter and Clinton Administrations supported the Filártiga doctrine. Despite some concerns, President George Bush, Sr. also expressed support for its goals and signed legislation authorizing a significant expansion of human rights accountability. Under the current Bush Administration, however, the Department of Justice has strenuously opposed human rights litigation, intervening in a dozen cases to challenge both the modern interpretation of the ATCA and its application in particular cases. Common to each of these interventions is the claim that judicial review of allegations of gross human rights abuses constitutes an unconstitutional interference with executive branch foreign affairs powers. Even more disturbing, the Administration insists that the judiciary refrain from judicial review whenever the Administration asserts -- however implausibly -- that litigation would harm foreign policy.

Although couched in terms of separation of powers, the interventions seek to protect allies from accountability for egregiously wrongful behavior. Uncritical acceptance of these politically charged interventions would undermine the constitutional balance of power. Courts are constitutionally obligated to assess the credibility of the submissions and to reject them where they are not supported by the facts. The Bush Administration’s ill-founded views of the Filártiga doctrine are entitled to nothing more than respectful consideration and should not be followed by the courts.

The Administration’s opposition to human rights litigation is analogous to its multiple efforts to eliminate judicial review of executive branch actions since September 11, 2001. If accepted, these claims would lead to a dangerous aggregation of unreviewable executive branch power.

Keywords: judicial deference, separation of powers, bush adminstration, alien tort statute

Suggested Citation

Stephens, Beth, Upsetting Checks and Balances: The Bush Administration's Efforts to Limit Human Rights Litigation (2004). 17 Harvard Human Rights Journal 169 (2004), Available at SSRN: https://ssrn.com/abstract=2621748

Beth Stephens (Contact Author)

Rutgers Law School ( email )

Newark, NJ
United States
856-225-6384 (Phone)

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