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Footnotes for Torture 101: The Case Against the United States for Atrocities Committed by School of the Americas Alumni



n1. See School of the Americas: School of Assassins (Richter Productions 1994); U.N. Truth Commission Report on El Mozote, at http://www.parascope.com/articles/0197/el moz05.htm (last visited Jan. 9, 2001).



n2. See U.N. Truth Commission Report on El Mozote, at http://www .parascope.com/articles/0197/el moz05.htm (last visited Jan. 9, 2001).



n3. See id.



n4. See id.



n5. School of the Americas: School of Assassins, supra note 1.



n6. See id; U.N. Truth Commission Report on El Mozote, at http://www .parascope.com/ articles/0197/el moz05.htm (last visited Jan. 9, 2001).



n7. See School of the Americas: School of Assassins, supra note 1.



n8. See id.



n9. See id.



n10. See General Accounting Office, School of the Americas: U.S. Military Training for Latin American Countries, GAO/NSIAD-96-178, 20, August 1996.



n11. See Jack Nelson-Pallmeyer, School of Assassins: The Case for Closing the School of the Americas and for Fundamentally Changing U.S. Foreign Policy 9 (1997).



n12. See id.



n13. See Brian Brown, School for Scandal, Commonweal, Dec. 18, 1998, at 10.



n14. Id.



n15. Nelson-Pallmeyer, supra note 11, at 41.



n16. Id. at 18-19.



n17. See Nelson-Pallmeyer, supra note 11, at 56-57.



n18. See id. at 39.



n19. "Vital interests" is a euphemism for United States corporate investments. See id. at 39.



n20. See Nelson-Pallmeyer, supra note 11, at 39, 40.



n21. See id. at 40.



n22. See id.



n23. See id.



n24. See School of the Americas: School of Assassins, supra note 1.



n25. See General Accounting Office, supra note 10, at 20.



n26. See Nelson-Pallmeyer, supra note 11, at 40.



n27. See General Accounting Office, supra note 10, at 20.



n28. See id.; Nelson-Pallmeyer, supra note 11, at 2.



n29. See General Accounting Office, supra note 10, at 20. Title 10, Section 4415 of the United States Code, entitled "United States Army School of the Americas," provides:



(a) The Secretary of the Army operate the military education and training facility known as the United States Army School of the Americas.

(b) The School of the Americas shall be operated for the purpose of providing military education and training to military personnel of Central and South American countries and Caribbean countries.

(c) The fixed costs of operating and maintaining the School of the Americas may be paid from funds available for operation and maintenance of the Army.

(d) Tuition fees charged for personnel receiving military education and training from the school may not include the fixed costs of operating and maintaining the school.



n30. See School of the Americas: School of Assassins, supra note 1; Nelson-Pallmeyer, supra note 11, at 2.



n31. Brian Brown, School for Scandal, Commonweal, Dec. 18, 1998, at 10.



n32. See General Accounting Office, supra note 10, at 2. Other institutions where the United States offers training to Latin American soldiers are the Naval Small Craft and Technical Training School in Panama and the Inter-American Air Force Academy located at the Lackland Air Force Base in Texas. See id. at 6, n.5.



n33. See id. at 7.



n34. See id. at 3.



n35. School of the Americas: School of Assassins, supra note 1.



n36. See General Accounting Office, supra note 10, at 1, 6.



n37. See id. at 2.



n38. See id. at 2, 35.



n39. See School of the Americas: School of Assassins, supra note 1.



n40. See General Accounting Office, supra note 10, at 2. The United States provides money to foreign countries to allow these foreign countries to purchase military training from the United States through three foreign assistance programs - Foreign Military Financing, International Narcotics and Law Enforcement, and International Military Education and Training. See id. at 6, n.4.



n41. See School of the Americas Watch, Congress Closes U.S. Army School of the Americas, Gives Okay to Open Clone, at http://www.soaw.org/leg.html (last visited Sept. 26, 2000).



n42. See General Accounting Office, supra note 10, at 2; School of the Americas: School of Assassins, supra note 1.



n43. See General Accounting Office, supra note 10, at 2.



n44. See id. at 12.



n45. Nelson-Pallmeyer, supra note 11, at 21.



n46. See General Accounting Office, supra note 10, at 4.



n47. See School of the Americas: School of Assassins, supra note 1.



n48. See id.



n49. Id.



n50. See id.



n51. See id.



n52. See School of the Americas: School of Assassins, supra note 1.



n53. See id.



n54. See id.



n55. School of the Americas: Closing Time, America, Nov. 28, 1998, at 3.



n56. See School of the Americas: School of Assassins, supra note 1.



n57. See id. As discussed previously, the members of the Atlacatl Battalion were also responsible for the El Mozote Massacre. See supra notes 1-7 and accompanying text.



n58. See id. One of the Atlacatl lieutenants during the killings was Jose Ricardo Espinoza Guerra. Guerra had been a Jesuit alumnus who had once been a student of one of his victims. See School of the Americas: Closing Time, America, Nov. 28, 1998, at 3.



n59. See Nelson-Pallmeyer, supra note 11, at 33.



n60. See School of the Americas: School of Assassins, supra note 1.



n61. See Nelson-Pallmeyer, supra note 11, at 6.



n62. See School of the Americas: School of Assassins, supra note 1.



n63. See Cesar Chelala, School of the Americas Accused of Training Human-Rights Abusers, Lancet, Nov. 22, 1997, at 1530.



n64. See Nelson-Pallmeyer, supra note 11, at 7; School of the Americas: School of Assassins, supra note 1.



n65. See Nelson-Pallmeyer, supra note 11, at 9.



n66. See id.



n67. See Human Rights Watch, The Ties That Bind: Colombia and Military-Paramilitary Links, at http://www.hrw.org/reports/2000/colombia (last visited Sept. 26, 2000).



n68. See id.



n69. See id.



n70. See id.



n71. See id.



n72. See Human Rights Watch, supra note 66.



n73. See id.



n74. See id.



n75. See id.



n76. See id.



n77. See Nelson-Pallmeyer, supra note 11, at 33.



n78. See id.



n79. See id. at 10. The SOA has a "Hall of Fame," where the photos of some of the graduates that the School honors hang. Callejas has his photo hanging in this "Hall of Fame." See id.



n80. See School of the Americas: School of Assassins, supra note 1.



n81. See Nelson-Pallmeyer, supra note 11, at 10.



n82. See Nelson-Pallmeyer, supra note 11, at 12; Sharon Erickson Nepstad, School of the Americas Watch, Peace Review, March 2000, at 67.



n83. See Nelson-Pallmeyer, supra note 11, at 15.



n84. Sharon Erickson Nepstad, School of the Americas Watch, Peace Review, March 2000, at 67.



n85. See Nelson-Pallmeyer, supra note 11, at 16. Evidence also shows that Alpirez was on the CIA's payroll when he attended the SOA in 1989 and continued to work for the Agency after he returned to Guatemala in 1990. The CIA had a part in covering up relevant information about the murders committed by Alpirez in order to protect "sources and methods." Our Man in Guatemala, Wash. Post, March 26, 1995 at C06. Also, Jennifer Harbury has brought suit against the CIA officials who participated in the torture of her husband, and against the State Department and National Security Council for concealing information about her husband's fate. See Harbury v. Deutch, 233 F.3d 596 (D.C. Cir. 2000).



n86. See School of the Americas Watch, Congress Closes U.S. Army School of the Americas, Gives Okay to Open Clone, at http://www.soaw.org/leg.html (last visited Sept. 26, 2000).



n87. See id.



n88. See School of the Americas: School of Assassins, supra note 1; Nelson-Pallmeyer, supra note 11, at 9.



n89. See Nelson-Pallmeyer, supra note 11, at 33.



n90. See School of the Americas: School of Assassins, supra note 1.



n91. See id.



n92. See Nelson-Pallmeyer, supra note 11, at 9.



n93. See School of the Americas: School of Assassins, supra note 1; Nelson-Pallmeyer, supra note 11, at 9. Hugo Banzer's photo also hangs in the SOA's "Hall of Fame." See School of the Americas: School of Assassins, supra note 1.



n94. See Nelson-Pallmeyer, supra note 11, at 32.



n95. See James Hodge, Training Manuals Said to Condone Torture, National Catholic Reporter, July 26, 1996, at 10.



n96. See id.



n97. Nelson-Pallmeyer, supra note 11, at 51.



n98. Hodge, supra note 95, at 10.



n99. Nelson-Pallmeyer, supra note 11, at 84-85. According to the Department of Defense, the original English versions of the manuals, which were translated to create the Spanish versions of the manuals used by the SOA, no longer exist. See School of the Americas Watch, School of the Americas Manuals, at http://www.soaw.org/soam.html (last visited Jan. 9, 2001).



n100. Gail Lumet Buckley, Left, Right, and Center, America, May 9, 1998, at 5.



n101. James Kitfield, School for Scandal, National Journal, Oct. 5, 1996, at 2144; see also Nelson-Pallmeyer, supra note 11, at 51.



n102. See Nelson-Pallmeyer, supra note 11, at 51.



n103. See id.



n104. Id. at 52.



n105. Barbara Jentzsch, School of the Americas Critic, Progressive, July 1997, at 14. A similar manual, entitled "Operaciones Sicologicas en Guerra de guerillas" (Psychological Operations in Guerilla Warfare), was one of the issues the International Court of Justice (I.C.J.) had to analyze in Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27). The manual had described the proper instances when violence and terror was to be used against certain targets, including court judges, mesta judges, and police officials. Id. at 66. The I.C.J. held that the manual encouraged the commission of acts that were illegal under international law, but did "not find a basis for concluding that any such acts which may have been committed as imputable to the United States of America as acts of the United States of America." Id. at 148. As discussed in Part IV, this Comment does not claim that the acts committed by the SOA graduates are imputable to the United States, but claims that the United States is directly liable for the atrocities and torture committed by SOA graduates because of improper training.



n106. School of the Americas Watch, Pentagon Investigation Concludes that Techniques in SOA Manuals were "Mistakes," at http://www.soaw.org/Manuals/ig-report.html (last visited Sept. 26, 2000).



n107. See id.



n108. See id.



n109. Id.



n110. Id.



n111. See Nelson-Pallmeyer, supra note 11, at 25.



n112. Id. quoting 140 Cong. Rec. 3771 (1994).



n113. See General Accounting Office, supra note 10, at 10-11.



n114. See id. at 13.



n115. See id. at 10-11.



n116. See id. at 13.



n117. See General Accounting Office, supra note 10, at 13.



n118. See id. at 10-11.



n119. See Nelson-Pallmeyer, supra note 11, at 25.



n120. Id. at 26.



n121. Id. at 27.



n122. Jentzsch, supra note 105, at 14.



n123. See Nelson-Pallmeyer, supra note 11, at 27.



n124. See id.



n125. See Jentzsch, supra note 105, at 14.



n126. See Linda Cooper, Former Instructor Says SOA Should Close, National Catholic Reporter, May 8, 1998, at 7.



n127. See Jentzsch, supra note 105, at 14.



n128. Nepstad, supra note 84, at 67.



n129. See Jentzsch, supra note 105, at 14.



n130. Id.



n131. Nelson-Pallmeyer, supra note 11, at 32.



n132. Nelson-Pallmeyer, supra note 11, at 31 quoting Inside the School of Assassins (Richter Productions 1996).



n133. See School of the Americas Watch, Pentagon Investigation Concludes that Techniques in SOA Manuals were "Mistakes," at http://www.soaw.org/Manuals/ig-report.html (last visited Sept. 26, 2000).



n134. In 1986, Nicaragua brought suit against the United States in the International Court of Justice (I.C.J.) for events that occurred prior to the fall of President Anastasio Somoza Debayle in 1979 and after the time when a Junata of National Reconstruction and an eighteen member government was installed by the Frente Sandisnista de Liberacion Nacional, the group that led an armed coup against President Somoza. See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 20 (June 27). Even though the United States first supported the new government, the United States' opinion of the new Nicaraguan government changed. The United States began to provide support to the Contras, a force fighting against the new government that was responsible for "considerable material damage and widespread loss of life, and [had] also committed such acts as killing of prisoners, indiscriminate killing of civilians, torture, rape, and kidnapping." Id. at 21. Support for the Contras came specifically from budgetary legislation that Congress enacted and the President approved in 1983 with a "specific provision for funds to be used by United States intelligence agencies for supporting "directly or indirectly, military or paramilitary operations in Nicaragua.'" Id. The I.C.J. reasoned that by approving and encouraging the recruiting, training, arming, equipping, and supplying of the Contras, the United States "committed a prima facie violation of [the customary international law principle of the non-use of force] by its assistance to the Contras in Nicaragua, by "organizing or encouraging the organization of irregular forces or armed bands ... for incursion into the territory of another state,' and "participating in acts of civil strife in another State.'" Id. at 118. However, the I.C.J. noted that even though the funding provided to the Contras by the United States constituted intervention into the internal affairs of Nicaragua, the funding alone did not amount to the use of force. Id. at 119. Finally, the I.C.J. held, among other things, that the United States could not justify its actions by claiming collective self defense of El Salvador, Honduras, or Costa Rica because no armed attack had occurred against any of these countries nor did they request the United States' help. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 119 (June 27).

The Nicaragua case is not determinative of the issue presented in this case for a number of reasons. First, neither Congress nor the President approved the teaching of torture to SOA graduates by any written law. In the Nicaragua case, Congress specifically passed legislation that provided funds for the Contras' operations and the President subsequently approved this legislation. Second, the I.C.J. determined the issue in light of the United States justifying its actions on using the doctrine of collective self-defense. The facts surrounding the atrocities committed by the SOA graduates do not give the United States any support to make this argument. Finally, I.C.J. judgments have "no binding force except between the parties and in respect of that particular case." Statute of the I.C. J., art. 59. In other words, I.C.J. judgments are not mandatory precedent and are not determinative of any case.



n135. See Elizabeth Amon, Coming to America, Nat'l L.J., Oct. 23, 2000, at A1.



n136. 28 U.S.C. 1350 (2000).



n137. Some case law suggests that the Alien Tort Act may have been passed strictly to target only private, nongovernmental acts that are contrary to a treaty of the United States or the law of nations, such as piracy and assaults against ambassadors. See Amon, supra note 135, at A1. See also Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985) ("This obscure section of the Judiciary Act of 1789 [the Alien Tort Act] ... may conceivably have been meant to cover only private, nongovernmental acts that are contrary to treaty or the law of nations - the most prominent examples being piracy and assaults upon ambassadors."). However, this reasoning is not supported by other and more recent case law that supports the proposition that aliens can sue governmental officials for violations of international law. See Kadic v. Karadzic, 70 F.3d 232 (2d. Cir. 1995), cert. denied, 518 U.S. 1005 (1996); In re Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir. 1994), cert. denied, Estate of Marcos v. Hilao, 513 U.S. 1126 (1995); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).



n138. Title 28, Section 1350 of the United States Code, entitled "Alien's Action for Tort," provides:



The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.





n139. 630 F.2d 876 (2d. Cir. 1980).



n140. Id. at 878.



n141. Id. at 880.



n142. Id. at 884-85.



n143. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985).



n144. See H.R. Rep. No. 102-367, at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 87.



n145. Id.



n146. Even though the United States is a party to some treaties and conventions that prohibit torture, as will be discussed later, this Comment restricts itself to discussing how torture violates customary international law for Alien Tort Act purposes. The reason for this limitation is one of simplicity. Instead of changing the hypothetical plaintiff's nationality numerous times to determine if the United States has violated any treaty with any of the countries in Latin America, an alien plaintiff can allege a violation of customary international law independent of his nationality and whether his country is a party to a treaty prohibiting torture along with the United States.



n147. See Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 165 (5th Cir. 1999).



n148. See Ge v. Peng, No. 98-1986, 2000 U.S. Dist. LEXIS 12711 at 11 (D.D.C. Aug. 28, 2000); Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d. Cir. 1980).



n149. See First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 623 (1983) ("International law, which, as we have frequently reiterated "is part of our law.'"); The Paquete Habana, 175 U.S. 677, 700 (1900) ("International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination."); Filartiga v. Pena-Irala, 630 F.2d 876, 885-88 (2d Cir. 1980) (discussing the integration of the law of nations into the federal common law and jurisdiction of Article III of the Constitution).



n150. See Beanal, 197 F.3d at 167.



n151. U.N. Charter, art. 55. Article 55 of the United Nations Charter provides in relevant part:



With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations ... the United Nations shall promote ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion.

Article 56 of the United Nations Charter provides:



All members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.

Though the United States is a party to the United Nations, the United States regards Articles 55 and 56 of the United Nations Charter as merely an expression of certain aspirations and not a self-executing treaty. See Sei Fujii v. California, 242 P.2d 617 (Cal. 1952).



n152. The Filitargia court noted in regards to Article 55 of the United Nations Charter that "although there is no universal agreement as to the precise extent of the "human rights and fundamental freedoms' guaranteed to all by the Charter, there is at present no dissent from the view that the guaranties include, at a bare minimum, the right to be free from torture." Filartiga v. Pena-Irala, 630 F.2d 876, 882 (2d Cir. 1980).



n153. G.A. Res. 217A, U.N. GAOR, 3d Sess., Supp. No. 1, at 71, U.N. Doc. A/810 (1948).



n154. Article 5 of G.A. Res. 217A, U.N. GAOR, 3d Sess., Supp. No. 1, at 71, U.N. Doc. A/810 (1948).



n155. See Filartiga, 630 F.2d at 882.



n156. G.A. Res. 3452, U.N. GAOR, 30th Sess., Supp. No. 34, at 91, U.N. Doc. A/1034 (1975). See also Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996).



n157. See id.



n158. Filartiga, 630 F.2d at 883.



n159. G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51 at 197, U.N. Doc. A/39/51 (1984) (Entered into force for the United States in November 1994).



n160. See id.



n161. See Article 7 of G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16 at 49, U.N. Doc. A/6316 (1966) (Entered into force for the United States in September 1990).



n162. See Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1016 (9th Cir. 2000).



n163. See Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996) (stating that torture is prohibited by international human rights and humanitarian norms); Trajano v. Marcos, 978 F.2d 493, 499 (9th Cir. 1992), cert. denied, Estate of Marcos v. Hilao, 513 U.S. 1126 (1995) (stating that death from torture is contrary to the law of nations); Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980) (stating the right to be free from torture is a "fundamental right"). In addition to the courts recognizing the prohibition against torture, Congress passed certain legislation that prohibited the United States from assisting countries that engage in torture. See Agricultural Trade Development and Assistance Act of 1954, 7 U.S.C. 1712 (prohibiting agreements to finance sale of agricultural commodities to nations that have a consistent pattern of human rights violations); International Financial Institutions Act of 1977, 22 U.S.C. 262d and 262(1) (prohibiting financial assistance to nations that have a consistent pattern of human rights violations unless the program serves "the basic human needs" of the citizens of such a nation); Foreign Assistance Act of 1961, 22 U.S.C. 2151n(a) & 2304 (stating that no foreign assistance would be provided "to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, or other flagrant denial of the right to life, liberty, and the security of person ... .").



n164. See Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1016 n.15 (9th Cir. 2000); Hilao v. Estate of Ferdinand Marcos, 103 F.3d 789, 795 (9th Cir. 1996); Comm. of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 941 (D.C. Cir. 1988).



n165. Restatement (Third) of the Foreign Relations Law of the United States 702, comment n (1987).



n166. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 205 (D.C. Cir 1985). See also supra note 133.



n167. Id. at 209.



n168. See Comm. of the United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 935 (D.C. Cir. 1988); Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 20 (June 27).



n169. Sanchez-Espinoza, 770 F.2d at 206.



n170. Id.



n171. See Ge v. Peng, No. 98-1986, 2000 U.S. Dist. LEXIS 12711 at 11-12 (D.D.C. Aug. 28, 2000); Kadic v. Karadzic, 70 F.3d 232, 239-40 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996).



n172. See Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992), cert. denied, 508 U.S. 960 (1993) (alien plaintiffs brought suit against the United States under the Alien Tort Act in conjunction with the Federal Tort Claims Act); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir 1985) (stating that the Alien Tort Act does not waive the United States' sovereign immunity).



n173. 28 U.S.C. 1346(b) (2000).



n174. Id.



n175. Holmes Herefords, Inc. v. United States, 753 F. Supp. 901, 910 (D. Wyo. 1990).



n176. See Dumansky v. United States, 486 F. Supp. 1078, 1090 (D.N.J. 1980).



n177. See id.



n178. 28 U.S.C. 1346(b) (2000).



n179. See Reynolds v. Southern Management, Inc., 856 F. Supp. 618, 620-21 (W.D. Okla. 1994); Holmes Herefords, Inc. v. United States, 735 F. Supp. 901, 913 (D. Wyo. 1990); White v. Franklin, 637 F. Supp. 601, 613 (N.D. Miss. 1986); Dumansky v. United States, 486 F. Supp. 1078, 1087 (D.N.J. 1980).



n180. See supra note 171 and accompanying text.



n181. See supra note 149 and accompanying text.



n182. U.S. Const. art. VI, cl.2. The Supremacy Clause provides:



This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.



n183. Title 28, Section 2680 of the United States Code, entitled "Exceptions," provides:



The provisions of this chapter [28 U.S.C.S. 2671 et seq.] and section 1346(b) of this title shall not apply to-

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

(b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.

(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer, except that the provisions of this chapter [28 U.S.C.S. 2671 et seq.] and section 1346(b) of this title apply to any claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforcement officer, if -

(1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense;

(2) the interest of the claimant was not forfeited;

(3) the interest of the claimant was not remitted or mitigated (if the property was subject to forfeiture); and

(4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law.

(d) Any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States.

(e) Any claim arising out of any act or omission of the Government in administering the provisions of sections 1-31 of Title 50, Appendix.

(f) Any claim for damages caused by the imposition or establishment of a quarantine by the United States.

(g) [Repealed]

(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United states Government, the provisions of this chapter [28 U.S.C.S. 2671 et seq.] and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purposes of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

(i) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system.

(j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.

(k) Any claim arising in a foreign country.

(l) Any claim arising from the activities of the Tennessee Valley Authority.

(m) Any claim arising from the activities of the Panama Canal Company.

(n) Any claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for co-operatives.



n184. See 28 U.S.C. 2680(a) (2000).



n185. See 28 U.S.C. 2680(j) (2000).



n186. See 28 U.S.C. 2680(k) (2000). Although torture may be considered a claim that arises out of an assault and battery, the Assault and Battery Exception, 28 U.S.C. 2680(h), would not be applicable in this case. This exception applies when a government employee directly commits an assault or battery. See United States v. Shearer, 473 U.S. 52 (1985) (stating that 2680(h) covers claims that stem from a battery committed by a government employee); Lamberston v. United States, 528 F.2d 441 (N.Y. 1976), cert denied 426 U.S. 921 (stating that federal courts are without jurisdiction to entertain a suit against the United States based on assault or battery by government employee); Wood v. United States, 760 F. Supp. 952 (D. Mass. 1991), aff'd, 956 F.2d 7 (1st Cir. 1992), cert. denied, Kimbro v. Velten, 515 U.S. 1145 (1995) (stating that the Federal Tort Claims Act precludes claim against United States for assault and battery allegedly committed by its employee). A plaintiff alleging the United States is liable for the torture committed by SOA graduates because of the SOA curriculum would not be claiming that the SOA graduates are government employees or that the soldiers of the United States Army actually committed the torture making 2680(h) inapplicable in this case.



n187. See Canadian Transport Co. v. United States, 663 F.2d 1081, 1086 (D.C. Cir. 1980).



n188. See Clark v. United States, 805 F. Supp. 84, 87 (D.N.H. 1992).



n189. Canadian Transport Co., 663 F.2d at 1087.



n190. See Clark, 805 F. Supp. at 87.



n191. Id.



n192. Id.



n193. See Dalehite v. United States, 346 U.S. 15, 42 (1953).



n194. See id. at 42.



n195. See United States v. Gaubert, 499 U.S. 315, 324 (1991).



n196. Id. at 325.



n197. 228 F.3d 944 (9th Cir. 2000).



n198. Id. at 947.



n199. Id.



n200. Id. at 947, 948.



n201. Id. at 949 quoting United States v. Gaubert, 499 U.S. 315, 323 (1991).



n202. Vickers, 228 F.3d at 949.



n203. Id. at 950-51.



n204. Id. at 950.



n205. Id. at 951.



n206. Id. at 951-52.



n207. Vickers, 228 F.3d at 953.



n208. Id.



n209. Ex Parte Milligan, 71 U.S. 2, 141 (1866).



n210. 682 F. Supp. 77 (D.D.C. 1988).



n211. Id. at 79.



n212. Id. at 80.



n213. Id. at 81.



n214. Id. at 82.



n215. See supra p.18.



n216. Orkilow, 682 F. Supp. at 82.



n217. 976 F.2d 1328 (9th Cir. 1992).



n218. Id. at 1330.



n219. Id. at 1334-35.



n220. Id. at 1333. See also Johnson v. United States, 170 F.2d 767, 769 (9th Cir. 1948).



n221. Id. at 1333, n.5 quoting Johnson v. United States, 170 F.2d 767, 770 (9th Cir. 1948).



n222. See Koohi, 976 F.2d at 1334.



n223. Id. at 1334.



n224. Id.



n225. Id. at 1335.



n226. Id. at 1333, n.5 quoting Johnson v. United States, 170 F.2d 767, 770 (9th Cir. 1948).



n227. 28 U.S.C. 1346(b) (2000).



n228. See Meredith v. United States, 330 F.2d 9, 10 (9th Cir. 1964), cert. denied, 379 U.S. 867 (1964).



n229. See In re Paris Air Crash, 399 F. Supp. 732, 737 (C.D. Cal. 1975).



n230. 617 F.2d 755 (D.C. Cir. 1979).



n231. Id. at 758.



n232. Id. at 757.



n233. Id.



n234. Id.



n235. Sami, 617 F.2d at 757.



n236. Sami, 617 F.2d at 758. The first message from the USNCB stated that a Florida warrant had been issued for the plaintiff, requested that the plaintiff be arrested, and stated that Florida would extradite the plaintiff. Id. The next message stated that the United States would extradite instead of Florida, and that a felony arrest warrant had been issued in Maryland. Id. The chief of the USNCB later stated that when he said that the United States would extradite he meant that Florida would request the United States to extradite and that he had no basis for stating that the Maryland warrant was for a felony. Id.



n237. Id. at 758.



n238. Id. at 758.



n239. Id.



n240. Id. at 761.



n241. Sami, 617 F.2d at 762.



n242. Id. at 762, n.7.



n243. Id. at 762. See also Leaf v. United States, 588 F.2d 733 (9th Cir. 1978); Meredith v. United States, 330 F.2d 9 (9th Cir. 1964), cert. denied, 379 U.S. 867 (1964); Orlikow v. United States, 682 F. Supp. 77 (D.D.C. 1988); In re Paris Air Crash, 399 F. Supp. 732 (C.D. Cal. 1975).



n244. Id. at 763.



n245. 369 U.S. 186 (1962).



n246. Id. at 210.



n247. Id. at 210-11. See also Comm. of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988).



n248. Id. at 217.



n249. Id. at 211.



n250. Baker, 369 U.S. at 211-12.



n251. See U.S. Const., art. I, sec. 8, cl. 12.



n252. See U.S. Const., art. II, 2, cls. 1 & 2.



n253. 859 F.2d 929 (D.C. Cir. 1988).



n254. 976 F.2d 1328 (9th Cir. 1992). See supra notes 217-226 and accompanying text.



n255. Supra note 134.



n256. Comm. of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 932 (D.C. Cir. 1988).



n257. Id. at 935, quoting Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1515 (D.C. Cir. 1984).



n258. Id. at 935. Importantly, the court later discussed whether international law violations have domestic legal consequences.



Do violations of international law have domestic legal consequences? The answer largely depends on what form the "violation" takes. Here, the alleged violation is the law that Congress enacted and that the President signed, appropriating funds for the Contras. When our government's two political branches, acting together, contravene an international legal norm, does this court have any authority to remedy the violation? The answer is "no" if the type of international obligation that Congress and the President violate is either a treaty or rule of customary international law. If, on the other hand, Congress and the President violate a peremptory norm (or jus cogens), the domestic legal consequences are unclear.

Id. at 935. The reasoning and discussion in this case does not effect the case against the SOA and actually leaves the courtroom door open for a case like the SOA for two reasons. Primarily, as discussed previously and noticed by the District Court of Appeals for the District of Colombia, the training and supporting of the Contras was done through a law enacted by Congress and signed by the President. In the case of the SOA, there has been no official law created by Congress or approved by the President. Also, as discussed above, the prohibition against torture may in fact be a jus cogens norm, and the court in Comm. of United States Citizens Living in Nicaragua v. Reagan actually accepts that the prohibition against torture is a jus cogens norm. Comm. of United States Citizens Living in Nicaragua, 859 F.2d at 941. The court never states that the prohibition against torture as a jus cogens norm does not have any domestic effect, and in fact leaves the door open for another court to determine this question.



n259. Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir. 1992), cert. denied, 508 U.S. 960 (1993).



n260. Id. at 1331-32.



n261. Id. at 1332.



n262. See 28 U.S.C. 1346(b).



n263. See Barron v. United States, 654 F.2d 644, 647 (9th Cir. 1981) ("Under the Federal Tort Claims Act the United States has not waived its sovereign immunity with respect to claims based on vicarious liability."); Gibson v. United States, 567 F.2d 1237, 1243 (3rd Cir. 1977), cert. denied, 436 U.S. 925 (1978) (stating that United States cannot be held vicarious liable for injuries to independent contractors solely on basis that the United States retained control over the work); Hall v. United States Gen. Servs. Admin., 825 F. Supp. 427, 432 (D.N.H. 1993) (stating that liability under the Federal Tort Claims Act cannot be premised on a theory of vicarious liability); DiSalvatore v. United States, 456 F. Supp. 1079, 1081 (E.D. Pa. 1978) ("In determining whether the [United States] can be liable for the negligence of an employee under the Federal Tort Claims Act, we must determine whether any claim would lie against it under the law of the state where the allegedly tortuous act or omission occurred ... with the limitation that vicarious liability cannot attach for the acts of persons who are not United State employees.").



n264. 42 U.S.C. 1983 provides:



Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United State or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress... . For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.



n265. See Brd. of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397 (1997); Collins v. City of Harker Heights, 503 U.S. 115 (1992); City of Canton v. Harris, 489 U.S. 378 (1989); Monell v. New York City Dept. of Soc. Servs. of the City of New York , 436 U.S. 658 (1978).



n266. See Monell v. Dept. of Soc. Servs. of the City of New York, 436 U.S. 658 (1978).



n267. See Collins v. City of Harker Heights, 503 U.S. 115 (1992) (concerning deficient training of sanitation department employees); City of Canton v. Harris, 489 U.S. 378 (1989) (concerning deficient training of police officers in determining the need for medical care of detainees) Depew v. City of St. Marys, 787 F.2d 1496 (11th Cir. 1986) (concerning improper training of police officers).



n268. Many attorneys and scholars may be surprised to see jurisprudence and rationale concerning 42 U.S.C. 1983, a domestic statute used to remedy civil rights violations, being used to establish legal liability against the United States for international violations. However, the use of 1983 jurisprudence in international law by United States courts is not unprecedented. When Congress passed the Torture Victim Protection Act, Congress instructed courts to interpret the phrase "color of law," as used in the Torture Victim Protection Act, by employing 1983 jurisprudence. See H.R. Rep. No. 102-367, at 5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 87.



n269. 489 U.S. 378 (1989).



n270. Id. at 381.



n271. Id.



n272. Id. at 381-82.



n273. 436 U.S. 658 (1978).



n274. Canton, 489 U.S. at 385.



n275. Id.



n276. Id. at 388.



n277. Id.



n278. Id. at 389.



n279. Canton, 489 U.S. at 389 quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986).



n280. Id. at 389.



n281. Id. at 390.



n282. Id. at 391.



n283. 520 U.S. 397 (1997).



n284. Id. at 400-01.



n285. Id. at 401.



n286. Id. at 416.



n287. Id. at 404. See also Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992) ("Proper analysis requires us to separate two different issues when a 1983 claim is asserted against a municipality: (1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation.").



n288. Brown, 520 U.S. at 403-04.



n289. Id. at 407.



n290. Id.



n291. When arguing the existence of a direct causal link between a deficient training program and a constitutional violation in municipal liability cases under Section 1983, the question that must be answered is whether the injury would still have occurred if the training program lacked the deficient component. See Canton v. Harris, 489 U.S. 378, 391 (1989). While discussing this issue in Canton, the Supreme Court stated:



Predicting how a hypothetically well-trained officer would have acted under the circumstances may not be an easy task for the factfinder, particularly since matters of judgment may be involved, and since officers who are well trained are not free from error and perhaps might react very much like the untrained officer in similar circumstances. But judge and jury, doing their respective jobs, will be adequate to the task.

Id. Because the Supreme Court trusted judges and juries to determine the existence of a causal link in 1983 cases, the same trust of judges and juries should be afforded in this case. An alien plaintiff should be allowed to present all his evidence to the factfinder and allow it to determine whether the causal link between the SOA curriculum and the torture committed. The same factfinder should be allowed to determine whether the government evidenced a deliberate indifference towards the rights of people who SOA graduates may come in contact with.



n292. The evidence used throughout this analysis has been thoroughly discussed in Part II.



n293. In Canton, the Supreme Court noted that liability could not attach against a municipality because of a single officer's lack of training because the officer's shortcomings may be the result of other factors. Canton, 489 U.S. at 390-91. In this case, the hypothetical plaintiff would not be claiming that liability would attach against the United States for the shortcomings of one foreign soldier. As discussed above in Part II of this Comment, the evidence shows that numerous SOA graduates have been extensively involved in human rights abuses.



n294. 398 U.S. 144 (1970).



n295. Id. at 146.



n296. Id. at 154, n. 10.



n297. Id. at 148.



n298. Id. at 148-49.



n299. Adickes, 398 U.S. at 163, 166.



n300. Id. at 167.



n301. Id. at 167.



n302. Id. at 167-68. See also Bd. of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997) ("Similarly, an act performed pursuant to a "custom' that has not been formally approved by an appropriate decisionmaker may fairly be subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.").



n303. Id. at 168 quoting Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 369 (1940).



n304. Adickes, 398 U.S. at 175.



n305. 787 F.2d 1496 (11th Cir. 1986).



n306. Id. at 1497.



n307. Id.



n308. Id.



n309. Id.



n310. Depew, 787 F.2d at 1497.



n311. Id.



n312. Id. at 1498.



n313. Id.



n314. Id. at 1499.



n315. Depew, 787 F.2d at 1499.



n316. Id.



n317. Id.



n318. 145 Cong. Rec. S4132 (1999) (statement of Sen. Durbin). See also S. 873, 106th Cong. (1999); H.R. 732, 106th Cong. (1999).



n319. See Departments of Defense and Energy - Appropriations, Pub. L. No. 106-398, 114 Stat. 1654 (2000).



n320. See supra note 29.



n321. See Departments of Defense and Energy - Appropriations, Pub. L. No. 106-398, 911(b), 114 Stat. 1654, 1654A-559 (2000).



n322. See id.



n323. See School of the Americas Watch, Congress Closes U.S. Army School of the Americas, Gives Okay to Open Clone, at http://www.soaw.org/leg.html (last visited Sept. 26, 2000).



n324. See id.



n325. See id.
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