The Alien Tort Statute: An Emerging Threat to National Security

Authors

Mark E. Rosen JAGC

First Page

627

Document Type

Article

Abstract

The American judicial system has been remarkably well insulated from the pressures of international law. Consequently, when federal judges try to apply international principles in domestic cases there are mistakes and collateral damage. This is a story of how some federal courts have taken the relatively obscure Alien Tort Statute ("ATS"), a two hundred year old law, and applied it in such a bizarre fashion that it threatens the overseas activities of most U.S. companies. It also threatens U.S. security operations, since the Department of Defense ("DOD") relies heavily on contractors for essential combat support services in foreign theaters of operations. The DOD also relies on foreign governments to wage coalition warfare or apprehend terrorists. Recent ATS decisions have the potential to interfere with the manufacture and use of new weapons systems and operational concepts, disrupt foreign training programs, and undermine good order and discipline if individual servicepersons become the objects of suit. This paper will focus on the foreign policy and national security implications of recent ATS rulings and how this weapon of judicial activism can be used to ambush DOD planners and contractors when the order is given to engage a foreign enemy.

Recommended Citation

Mark E. Rosen JAGC, The Alien Tort Statute: An Emerging Threat to National Security, 16 St. Thomas L. Rev. 627 (2004).
Available at: https://scholarship.stu.edu/stlr/vol16/iss4/4