Can an alien living in this country be sued in U.S. courts by foreign nationals for alleged human rights abuses that occurred in the defendant's country?
A three-judge panel in the U.S. Court of Appeals in New York is to decide that complicated question this fall, in a case that could have far-reaching ramifications for officials of oppressive foreign governments who seek asylum in the United States.
The case involves a former Paraguayan police officer accused by human rights groups of belonging to a "death squad" that engaged in systematic murder and torture in Paraguay.
The police officer, Americo Pena, was named in a $10 million wrongful-death suit in New York by another Paraguayan, Dr. Joel Filartiga, for the 1976 torture-murder of Filartiga's young son.
Pena was arrested in Brooklyn in April for overstaying his visa, and asked to be deported "as quickly as possible." But in an unusual order, a federal judge in Brooklyn delayed the deportation, and granted Filartiga, an alien, the right to sue him in U.S. courts. Pena's own attorney had a order staying his deportation overturned, and Pena immediately returned to Paraguay and then fled to Brazil
The judges' panel in New York is pondering whether aliens have the right to sue other aliens in this country for human rights abuses. The decision could have precedent-setting impact for other officials of foreign governments living in the United States, making them liable to civil and criminal charges brought by citizens of their home countries.
Michael Maggio, Filartiga's Washington attorney, who is working with the New York Center for Constitutional Rights, estimates that dozens of former Iranian secret police and members of the Nicaraguan National Guard now live in the United States, and a court ruling in Filartiga's favor could bring a rash of court actions against them by former victims also living here.
The legal precedent for the sit comes from a 1789 federal statute that permits aliens to sue in U.S. district courts for violations of international law. That obscure and rarely use statute was originally intended to apply to pirates so "the pirate could be tried wherever he was found," Maggio said.
In his brief, to be filed July 16, Maggio argues that "just as pirates were the bane of their time, tortures are their equivalent today."
Maggio said that many prominent international lawyers and human rights groups have filed amicus briefs supporting his contention "that torture is a violation of international law." Maggio said, "We hope that just by bringing the suit, we have put human rights violators on notice."