Literally thousands of those manuals were passed out. The officers who ran the intelligence courses used lesson plans that included the worse [sic] material contained in the seven manuals. Now they say that there were only eighteen to twenty passages in those manuals in clear violation of U.S. law. In fact, those same passages were at the heart of the intelligence instruction. 105
[*488] The Pentagon has stated that the inclusion of "objectionable" material in the training manuals was the result of "mistakes," and that there was "no deliberate and orchestrated attempt ... to violate Defense Department or U.S. Army policies." 106 However, the Pentagon has not stated how the "mistakes" happened or who was responsible for them. 107 In fact, the Pentagon has decided that there is no need for further investigation to assess individual responsibility. 108 On the other hand, the Department of Defense has stated that the manuals were the work of "misguided junior officers working from outdated intelligence materials." 109 The explanation given by the Department of Defense includes the fact that the intelligence officers who created the manuals "simply assumed that U.S. laws against assassination, beatings, and blackmail applied only to U.S. citizens and thus were not applicable to the training of foreign military officers." 110
Students at the SOA are not only taught how to torture and assassinate properly, but they also receive human rights training. The SOA and its supporters have made it seem as if the present human rights training has always been part of the school's curriculum. 111 However, as admitted by Georgia Congressmen Sanford Bishop, it was only "as the cold war began to end, [that] the School of the Americas began to adopt a new curriculum." 112
The SOA does not offer a course specifically geared towards the respect for human rights and international law. 113 Instead, all of the SOA's courses, except the computer literacy course, include a mandatory four-hour block of human rights instruction. 114 The average duration of a course at the SOA is seven weeks. 115 This means that trainees at the SOA are receiving only four hours of human rights training in a seven-week period. However, the instruction is expanded in some courses. 116 For example, the command and general staff officer courses have three days devoted [*489] to human rights that include a discussion of incidents in which Latin American militaries have been involved. 117 Yet, the command and general staff officer course lasts forty-seven weeks. 118 Four hours of human rights training in a seven week course, or even three days of human rights training in a forty-seven week course, does not seem adequate considering the number of human rights abuses that SOA graduates have been linked to.
The increased inadequacy of human rights training is evidenced by the facts that the instruction offered is merely cosmetic and that the students at the school have little respect for the human rights classes. Charles T. Call, an associate for the United States hemispheric security policy at the Washington Office on Latin America, was the first human rights advocate to be invited to give a guest lecture at the SOA. 119 Call stated that the changes made were
not much more than a facelift...Several instructors, I found, are from countries with appalling human rights records... . Indeed, much of the training at the school is done by officers from Latin American militaries which have strongly resisted increased civilian control and accountability. Yet the Defense Department invites officers from these militaries to serve as teachers and role models... .Even more distressing, I found that the United States continues to invite soldiers accused of gross human rights violations to the school. 120
Retired United States Army Major Joseph Blair, a former instructor at the SOA and a former high-level officer in the CIA who led the Operation Phoenix program in Vietnam, which resulted in the deaths of more than 40,000 Vietnamese, agrees with Call's observation regarding the human rights training at the SOA. Blair states that the four hour blocks of instruction on human rights are considered "a bunch of bullshit" and that the human rights training is treated as a joke by most of the Latin American trainees. 121
When I was there, a general who was an officer in the dictatorship of General Pinochet of Chile taught about four hours of human rights. It was a joke for fifty or sixty Latin American officers to sit in a class and have someone from Chile [*490] preach to them about how they should be concerned about human rights in their own country. 122
Another example of how human rights training has been treated as a joke is evidenced by one training exercise where soldiers were supposed to be taught to use restraint when dealing with a priest and catechists while retaking control of a mock town controlled by a group of rebels. 123 However, during the exercise the priest and catechists were either killed or abused seventy-five percent of the time, and the priest's frequent death was treated as a school-wide joke. 124
Some former instructors and students have publicly denounced the school and its teachings. In 1989, Major Joseph Blair retired from the Army and has now become a vocal opponent of the SOA and United States foreign military policy. 125 Blair became a critic of the SOA after reading newspaper stories in which the United States Army and school officials denied knowing that graduates of the SOA were committing murders and atrocities in Latin America. 126 Blair has confirmed that torture was taught at the school while he was an instructor. 127
I sat next to Major Victor Thiess who created and taught the entire course which included seven torture manuals and 382 hours of instruction ... . He taught primarily using manuals which we used during the Vietnam War in our intelligence-gathering techniques. These techniques included murder, assassination, torture, extortion, and false imprisonment. 128
Blair confirms that even though the Carter Administration decided to stop using the techniques applied during the Vietnam War, the SOA kept supplying Latin Americans with recommendations to use techniques and procedures that were clear violations of human rights and international law. 129 Blair observes that "once you learn it in the school, you retain it for life." 130
Former graduates of the school have also spoken out to reveal the horrors that are taught at the SOA. Jose Valle, a member of [*491] Battalion 316 and an admitted torturer, stated that while a student at the SOA he took an intelligence course in which he viewed "a lot of videos which showed the type of interrogation and torture [American intelligence officers] used in Vietnam." 131 Another former SOA graduate revealed that
The school was always a front for other special operations, covert operations. They would bring people from the streets [of Panama City] into the base and the experts would train us on how to obtain information through torture. We were trained to torture human beings. They had a medical physician, a U.S. medical physician which I remember very well, who was dressed in green fatigues, who would teach the students ... [about] the nerve endings of the body. He would show them where to torture, where and where not, where you wouldn't kill the individual. 132
The recent addition of human rights training to the SOA curriculum cannot disguise the past abuses that SOA alumni have been involved in. Also, it cannot change the fact that the United States Army and the SOA have played key roles in human rights abuses and violations of international law by teaching torture, assassination, and a disrespect for human rights. The United States has denied liability for the actions of its graduates, 133 but the tenets of domestic and international law do not agree that the United States is not liable for the violations of international law committed by the alumni of the SOA.
III. Establishing and Maintaining Jurisdiction Against the United States
Presently, no blueprint exists describing how a victim of an SOA graduate's atrocity can bring suit against the United States because no precedent exists internationally or domestically that has decided one country's liability for training another country's military to torture and disrespect human rights. 134 However, for [*492] reasons to be discussed, the most favorable way for a plaintiff to establish the United States' liability for torture in Latin America because of improper training at the SOA is to bring suit in a United States District Court. Assuming that no Americans have been abused by any SOA graduates, and would therefore not have standing to bring suit, an alien plaintiff must establish jurisdiction through a two-prong procedure. First, the alien plaintiff must establish jurisdiction through the use of the Alien Tort Act and the Federal Tort Claims Act.
A. The Alien Tort Act
In recent years, more alien plaintiffs have been bringing suit in United States District Courts for violations of international law, specifically human rights violations, that have been committed by individuals, nation states, and international corporations. 135 This trend has been aided in large part by the Alien Tort Act. 136 Even though the controversial Alien Tort Act has a murky past, 137 the first Congress passed the Act to permit alien citizens to bring suit in Federal District Court for violations of international law or a United States treaty. 138 According to the Act, subject matter jurisdiction can be maintained if three conditions are satisfied: (1) the plaintiff is an alien; (2) the claim is for a tort; and (3) the tort is committed in violation of the law of nations or a treaty of the United States.
In this case, the first condition is easily satisfied. The plaintiffs who have standing to bring suit against the United States are the victims of the inhumane acts and atrocities committed by SOA graduates. Because these atrocities have been committed in Latin America, one can safely assume that the majority of victims are not citizens of the United States. In other words, the majority of plaintiffs who have standing, which are represented by the hypothetical plaintiff, would be considered aliens.
[*494] In regards to the second condition, torture has been a recognized tort since Filartiga v. Pena Irala. 139 The plaintiffs in Filartiga were citizens of Paraguay who brought suit in Federal court against a former police inspector of Paraguay who tortured to death a member of the plaintiffs' family. 140 The District Court dismissed the case because torture was not recognized as a violation of the law of nations in 1789, the year the Alien Tort Act had been passed. 141 However, the Appellate Court unanimously acknow-ledged that although official torture had not been recognized as a violation of the law of nations in 1789, the universal prohibition had become a rule of customary law that brought torture within the language of the Alien Tort Act. 142
Filartiga was a celebrated holding, but one Federal judge, Judge Bork, questioned whether victims of official torture committed in foreign nations could bring suit under the Alien Tort Act absent a grant by Congress of a private right of action. 143 Congress dealt with Judge Bork's criticism by codifying Filartiga's holding in the Torture Victim Protection Act. 144 In passing the Torture Victim Protection Act, Congress noted that this Act enhanced the already available remedy under the Alien Tort Act by extending the remedy to United States citizens who may be tortured in a foreign country, and that the Alien Tort Act "should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary inter-national law." 145 With the passage of the Torture Victim Protection Act, Congress recognized that torture is a tort that falls within the Alien Tort Act that must be recognized in all jurisdictions. Therefore, the second condition required under the Alien Tort Act is also satisfied.
The third condition needed to satisfy subject matter jurisdiction under the Alien Tort Act requires that the tort be committed in violation of the law of nations or a treaty of the United States. 146 The Alien Tort Act does not define the term "law [*495] of nations," but the courts have interpreted the term to mean "customary international law." 147 The principles and rules of customary international law are living and evolving concepts that exist when nation states follow a general and consistent practice out of a sense of legal obligation. 148 One of the most important things to remember is that the law of nations and customary international law is not merely a doctrine of law that is separate from domestic law, but is, in fact, an integral part of the Federal common law of the United States. 149 In order to determine if an act violates customary international law, evidence must show that the act is generally recognized as wrong by a large number of nations. 150 The best starting point in determining whether the prohibition against torture is a violation of customary international law is to look at international treaties and conventions that have been created and ratified by a large number of nations.
Presently, numerous international treaties and conventions exist promoting human rights and prohibiting torture. One of the first treaties to be created and ratified by a large number of nations was the United Nations Charter. Articles 55 and 56 of the Charter make it clear that all members of the United Nations should strive to "promote ... universal respect for, and observance of, human rights and fundamental freedoms... ." 151 One of the shortcomings [*496] of the United Nations Charter is that even though it states that human rights should be respected and promoted, the Charter does not define what human rights should be protected. 152
In order to clear up the ambiguity and shortcomings of Article 55 of the United Nations Charter, the General Assembly of the United Nations created and passed without dissent the Universal Declaration of Human Rights. 153 Article 5 of this Declaration unequivocally states that "no one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment." 154 Scholars and courts have determined that this Declaration has become part of the body of customary international law since its creation and passage in 1948. 155 Along with the Universal Declaration of Human Rights, the General Assembly of the United Nations also created and passed the Declaration on the Protection of All Persons Being Subjected to Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. 156 This Declar-ation, which also passed without dissent, expressly prohibits any state from permitting acts of torture. 157 Even though the United States is not a party to either of these Declarations, the Federal courts view these Declarations as significant in defining customary international law because "they specify with great precision the obligations of member nations under the [United Nations] Charter [*497] and because of their adoption, "member nations can no longer contend that they do not know what human rights they promised in the Charter to promote.'" 158 The fact that the United States did not become a party to these Declarations does not change the United States' obligations under customary international law to respect human rights and not to promote torture. However, there are other United Nations' resolutions and agreements that the United States has adopted that prohibit torture.
In 1990, the United States Senate ratified the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment along with more than 100 other nations. 159 This Convention includes provisions aimed at preventing torture, prosecuting torturers, and compensating victims of torture. 160 In addition to this Convention, the United States Senate ratified the International Covenant on Civil and Political Rights, which also includes provisions that prohibit torture. 161 Besides torture being prohibited by numerous international agreements, which supports the proposition that torture is outlawed by customary international law, the United States judiciary and other sources have went even further to state that the prohibition against torture is not only prohibited by customary international law, but is actually a jus cogens norm.
A jus cogens norm is a peremptory norm of international law that can never be abrogated by any country. 162 The Federal courts have long recognized the right of a person to be free from torture. 163 [*498] However, some courts in the United States have determined that the prohibition against torture is a jus cogens norm. 164 In addition, The Restatement (Third) of the Foreign Relations Law of the United States proclaims that the prohibition against "torture or other cruel, inhuman, or degrading treatment or punishment" is a jus cogens norm that cannot be derogated from. 165
Looking at all these sources as evidence, it is clear that torture is prohibited by the law of nations and customary international law even if torture is not defined as a jus cogens norm. In this case, however, the United States itself has not tortured any person. Instead, the United States trained another nation's soldiers to torture and disrespect human rights. In a factually similar case, a group of plaintiffs brought suit against President Ronald Reagan, the Central Intelligence Agency, the National Security Agency, and other federal officials for training, directing, authorizing, and financing the Contras who were responsible for torture and other degrading treatment of Nicaragua's civilian population. 166 The court concluded that the plaintiffs could not obtain judicial relief for the violations alleged. 167 Even though the facts of Sanchez-Espinoza and this case are similar, the court's decision is not determinative as to whether the victims of SOA torture can bring suit against the United States for its training of military soldiers because of a few important distinctions.
First, in Sanchez-Espinoza, the court was faced with judging a law that had been approved by both the executive and legislative branches. 168 However, the teaching of torture at the SOA never received official approval from either the executive or legislative branches. Also, the Sanchez-Espinoza court incorrectly reasoned [*499] that the Alien Tort Act had been passed solely to cover private, nongovernmental acts. 169 Based on this reasoning, the court determined that no treaty or principle of customary international law existed that made the activities alleged by the plaintiffs illegal if conducted by private, non-state actors. 170 However, as discussed previously, since the Filartiga holding and its codification by the Torture Victim Protection Act, the idea that the Alien Tort Act does not provide subject matter jurisdiction to victims of torture committed by government officials has been overruled. In addition, even if the Alien Tort Act applied only to unlawful conduct by private, non-state actors, courts have held that individuals can violate international law for torture and other egregious conduct that violates customary international law. 171
Because this case can be distinguished from Sanchez-Espinoza and because the act of conducting torture is prohibited by customary international law, it is only logical that training military officials to participate and engage in this notorious conduct is also prohibited. For jurisdictional purposes, the United States violated international law by making torture part of the curriculum at the SOA, and by failing to investigate or take adequate preventive measure once it had been discovered that a large number of SOA graduates had been involved in human rights violations.
In sum, an alien plaintiff can establish subject matter jurisdiction against the United States under the Alien Tort Act because torture is an actionable tort that violates the law of nations. However, the United States has sovereign immunity from lawsuits that can only be waived by an act of Congress. In this case, the Alien Tort Act does not waive the United States' sovereign immunity so jurisdiction against the United States must be maintained through another statute - the Federal Tort Claims Act. 172
B. The Federal Tort Claims Act
The Federal Tort Claims Act 173 provides a limited waiver of the United States' sovereign immunity in claims involving money damages for injuries "caused by the negligent wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 174 Even though the Federal Tort Claims Act mentions "negligence" within its statutory language, the Federal Tort Claims Act does not waive immunity solely to tort actions involving negligence, but "the Act extends to novel and unpre-cedented forms of liability as well." 175 By its language, the Act waives the United States' immunity in broad, sweeping terms, but the language of 28 U.S.C. 1346(b) also contains limitations to this waiver that must be overcome to maintain jurisdiction over the United States.
Under the Federal Tort Claims Act, the United States is liable for the actions of its employees under the respondent superior doctrine. 176 In other words, the United States can only be held liable when a master-servant relationship exists between the United States and the wrongdoer. 177 At first glance, it seems that an alien plaintiff could not sue the United States for the torture committed by the SOA graduates because there is no master-servant relation-ship between the United States and the SOA graduates. However, as will be explained further in Part IV, an alien plaintiff would not allege that the United States is vicariously liable for the actual torture committed by the SOA graduates. Instead, an alien plaintiff would allege that the United States is directly liable for the teaching of torture and other improper lessons that violated international law because the soldiers and instructors at the SOA were "acting within the scope of [their] employment." 178 Even though the soldiers and instructors at the SOA were "acting within the scope of [their] employment," satisfying one portion of the Federal Tort Claims Act, another restriction must be overcome.
[*501] The Federal Tort Claims Act, by its language, also limits the United States' waiver of immunity to only those torts that an individual can be liable for under state law. 179 Normally, inter-national law applies solely to nation states and international organizations, but, as noted earlier, individuals can be found liable for international law violations that are considered notorious and egregious, such as torture. 180 Furthermore, it has been noted that a long recognized principle exists in the United States that customary international law is part of the Federal common law. 181 Because of the Supremacy Clause of the Constitution, 182 the Federal common law, including the integration of international law, is the Supreme Law of the land and is part of state law. In other words, because international law is integrated into state law through the Supremacy Clause and individuals can be liable for notorious and egregious violations of international law, an individual can be held liable under Georgia state law for committing and teaching torture. With the help of the Supremacy Clause and Federal common law, the United States' immunity is still waived under the Federal Tort Claims Act.
Even though the limitations contained in the text of 28 U.S.C. 1346(b) does not preclude jurisdiction over the United States, a plaintiff must still overcome the exceptions to the waiver of immunity codified by Congress in 28 U.S.C. 2680. 183 If any of the [*502] exceptions contained in this section can be applied, then jurisdiction over the United States cannot be maintained. In this case, the only exceptions that may apply are the discretionary function exception, 184 [*503] the combatant activity exception, 185 and the foreign country exception. 186
1. The Discretionary Function Exception - Congress imple-mented the discretionary function exception to the waiver of immunity in order to maintain the separation of powers between the political branches of government - the legislative and executive branches - and the judicial branch. 187 Congress wanted to prevent the judiciary from second guessing the acts or omissions performed by the members of the legislative or executive branch that involve an element of judgment or choice. 188
The exercise of judgment which the exemption protects must be one which would otherwise involve courts in making a decision entrusted to other branches of the government. Decisions which require a government official to weigh competing policy alternatives are entitled to immunity for such decisions and are the ordinary responsibility of the legislative and executive branches. 189
In other words, the exception does not permit the judicial branch to inquire into the action or decisions of the legislative or executive branches if these actions or decisions involved the weighing of alternative public policy considerations. 190 However, the exception does not apply in situations where the act or omission [*504] in question did not involve the exercise of choice or judgment. 191 The clearest example of actions that do not involve choice or judgment between alternative public policy considerations is when statutes, regulations, or policies exist prescribing a course of action to be followed by a governmental employee. 192
When the Supreme Court first analyzed the discretionary function exception, the Court created a planning/operational dichotomy to determine whether an act or decision was "discretionary." 193 The Court reasoned that decisions occurring at the "planning" level, such as the creation of laws, were discretionary while decisions occurring at the "operational" level, such as the enforcement of laws, were not discretionary. 194 Four decades later, however, the Court determined that this dichotomy was not appropriate because there were decisions that arguably occurred at the "operational" level that could be considered discretionary. 195 In place of the planning/operational dichotomy, the Court stated that a court should inquire into "the nature of the actions taken and whether they are susceptible to policy analysis." 196 The most recent application of this new analysis is found in Vickers v. United States. 197
In Vickers, the plaintiff's ex-husband, a detention enforcement officer for the Immigration and Naturalization Service (INS), had shot her. 198 The plaintiff alleged that the United States government was liable for her injuries for two reasons. First, the plaintiff alleged that the INS was negligent in supervising and retaining her ex-husband as an officer entitled to carry a firearm. 199 The plaintiff also alleged that the INS failed to investigate a previous shooting incident involving her ex-husband and his former girlfriend. 200 The Ninth Circuit Court of Appeals first noted that the discretionary function exception had been enacted to prevent the judiciary from reanalyzing "legislative and administrative decisions grounded in social, economic, and political policy through the medium of an [*505] action in tort." 201 The court then explained the two-step analysis that the Supreme Court created in Gaubert.
The first inquiry is whether the challenged action involved an element of choice or judgment, for it is clear that the exception "will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.' ...If choice or judgment is exercised, the second inquiry is whether that choice or judgment is of the type Congress intended to exclude from liability - that is, whether the choice or judgment was one involving social, economic, or political policy. 202
Furthermore, the court clarified that a decision by a government officer or agency does not have to actually be based on policy considerations to fall within the discretionary function exception, but the decision need only be "susceptible to policy analysis." 203 In regards to the plaintiff's first claim, the court stated that decisions concerning the hiring, training, and supervision of employees fall within the discretionary function exception. 204 Based on this reasoning and the fact that no evidence existed to show that the INS violated any mandatory policy or regulations, the court held that the decision to allow the ex-husband to carry a firearm based on earlier proficiency testing and the decision not to discharge the ex-husband were both "susceptible to policy analysis" and were within the boundaries of the discretionary function exception to the United States' waiver of immunity. 205
However, in regards to the plaintiff's second claim, the court held that the INS had a duty to investigate the alleged shooting of the former girlfriend based on the existence of agency policy that required both reporting and investigation of such incidents. 206 The court reasoned that
Although INS investigators undoubtedly enjoy discretion in the conduct of an investigation, this discretion does not extend to the question of whether to report to superiors or to investigate at all an allegation of misuse of Service-issued firearms. The failure to report or to investigate therefore constituted a failure to follow the mandatory requirements [*506] proscribed by agency regulations as implemented by policy guidelines. Since those regulations and guidelines required investigation and reporting action in the instant case, the [Federal Tort Claims Act's] discretionary function exception does not apply. 207
For this reason, the court determined that the discretionary function exception did not bar the plaintiff's suit against the INS or the United States. 208
Applying the two-prong standard to the case against the United States for the SOA curriculum, one finds that the discretionary function exception does not bar suit against the United States. The first prong requires one to determine whether a federal statute, regulation or policy exists prescribing a course of action that would then preclude a person from using judgment or choice. As early as 1866, the Supreme Court recognized that "There is no law for the government of the citizens, the armies or the navy of the United States ... which is not contained in or derived from the Constitution." 209 In other words, the Constitution is the source of military law. This being the case, the Supremacy Clause makes the Constitution the supreme law of the land along with the Federal common law. Once again, customary international law, which prohibits torture, is part of the Federal common law and supreme law of the land. Because the military is controlled by the Constitution, military regulations and training procedures must not violate the supreme law of the land or customary international law.
Further support for this claim can be found in Orkilow v. United States. 210 In Orkilow, the Central Intelligence Agency had conducted an expansive covert research project to investigate chemical and biological warfare, and to counter Soviet and Chinese advances in brainwashing and interrogation techniques. 211 Many of the experiments conducted were performed on unwilling human subjects. 212 The District Court held that "when a decision is made to conduct intelligence operations by methods which are unconstitutional or egregious, it is lacking in statutory or regulatory authority." 213 The court further stated that to determine that the decision to conduct illegal experiments on unwilling subjects [*507] involved a policy judgment "would extend the protection of the exception beyond what Congress intended to protect from judicial second guessing." 214 In the case of the SOA, providing training in torture methods is egregious and unconstitutional because of the Supremacy Clause and, therefore, lacks any statutory or regulatory authority. Furthermore, the Pentagon specifically admitted that the manuals used as instructional purposes violated Department of Defense and Army policies. 215 Because the Constitution and policy regulations existed proscribing a course of action, judgment or choice could not be exercised in regards to the decision to teach torture at the SOA making the discretionary function exception inapplicable.
However, even if one were to assume that a choice or judgment could be exercised satisfying the first prong, one is hard pressed to imagine that the teaching of torture is the type of conduct Congress wanted to exclude from liability. As noted earlier, the Senate has ratified international agreements that prohibit torture, and the entire Congress specifically passed legislation that prohibits the United States from conducting foreign relations with governments that have a history of torture. It is not logical for Congress to want to punish foreign governments for engaging in torture, but allow the United States to teach foreign militaries how to engage in torture. "To hold that these discretionary decisions involve a measure of policy judgment would extend the protection of the exception beyond what Congress intended to protect from judicial second guessing." 216 In sum, the discretionary function exception does not preclude an alien plaintiff from suing the United States.
2.The Combatant Activity Exception - Because the discretionary function exception does not apply in this case, the government may argue that the training occurring at the SOA falls within the combatant activity exception to the waiver of sovereign immunity supplied by the Federal Tort Claims Act. The Ninth Circuit Court of Appeals discussed the combatant activity exception in Koohi v. United States. 217 The court had to determine if the shooting down of an Iranian civilian aircraft by a Navy warship during a conflict with Iranian gunboats was within the combatant activity exception. 218 The court discussed at length the three [*508] primary reasons Congress had for creating the combatant activity exception.
First, tort law is based in part on the theory that the prospect of liability makes the actor more careful. ... Here, Congress certainly did not want our military personnel to exercise great caution at a time when bold and imaginative measures might be necessary to overcome enemy forces; nor did it want our soldiers, sailors, or airmen to be concerned about the possibility of tort liability when making life or death decisions in the midst of combat. Second, tort law is based in part on a desire to secure justice - to provide a remedy for the innocent victim of wrongful conduct... . War produces innumerable innocent victims of harmful conduct - on all sides. It would make little sense to single out for special compensation a few of these persons - usually enemy citizens - on the basis that they have suffered from the negligence of our military forces rather than from the overwhelming and pervasive violence which each side intentionally inflicts on the other. Third, there is a punitive aspect to tort law... . Society believes tortfeasors should suffer for their sins. It is unlikely that there are many Americans who would favor punishing our servicemen for injuring members of the enemy military or civilian population as a result of actions taken in order to preserve their own lives and limbs. 219
The Court then turned to the language of the statute, and determined that 2680(j) is to be interpreted by its plain meaning and not technical legalese. 220 Using this reasoning, the court first noted that the phrase "combatant activities" includes "not only physical violence, but activities both necessary to and in direct connection with actual hostilities." 221 The court then interpreted the phrase "time of war." 222 The court reasoned that in the modern era, the United States has participated in armed conflicts and hostilities without a formal declaration of war. 223 For this reason, the court concluded that in order for actions to fall within the meaning of "time of war," as used in the combatant activity exception, the only thing that is necessary is the existence of a significant armed conflict and not a formal declaration of war. 224 For the preceding reasons [*509] and because the executive branch made a deliberate decision to have the United States military involved in a series of hostile encounters during the Iraq-Iran war, the court held that the combatant activity exception banned the plaintiffs' suit against the United States. 225
Applying the reasoning discussed in Koohi to the case of the SOA, one finds the combatant activity exception does not apply. First, applying the plain language of the statute, one may argue that the teaching of torture involves physical violence and would be a combatant activity. However, any physical violence that may be involved in the teaching of torture is "not necessary to or in direct connection with actual hostilities." 226 Similarly, because these activities are not related to any actual hostilities, either declared or undeclared, there is also no "time of war" within the meaning of the statute.
Furthermore, looking at the three reasons for the implementation of the exception none of these reasons exist allowing the United States to be shielded from liability. First, unlike the soldiers in combat, the SOA instructors have no need to use bold or imaginative measures to overcome enemy forces, and, therefore, should use greater caution when training soldiers. Also, it is undeniable that war creates innocent victims on both sides of the conflict that do not receive any special treatment. In the case of the SOA, however, there is no war and, furthermore, the training specifically instructs the SOA students to disrespect human rights and to target the poor, members of the church, and student activists as "insurgents." This notorious and negligent training focus produces innocent civilians that are harmed by SOA graduates trained by the United States, and these innocent victims deserve to secure justice. Finally, the American public may not favor punishing servicemen who harm members of an enemy military or civilian population as a result of protecting their own lives, but it is more likely that the American conscience would support punishing soldiers for training foreign soldiers how to conduct international human rights violations. For all of these reasons, it is clear that the combatant activity exception to the United States' waiver of immunity under the Federal Tort Claims Act would not bar a suit brought by the alien plaintiff.
[*510] 3. The Foreign Country Exception - The final statutory exception to the waiver of sovereign immunity under 28 U.S.C. 2680 that may arguably apply is the foreign country exception. As previously mentioned, liability under the Federal Tort Claims Act is determined "in accordance with the law of the place where the act or omission occurred," and the foreign country exception is an extension of this concept. 227 In order to avoid the United States being held liable under the laws of a foreign country, Congress did not want the United States' waiver of sovereign immunity to extend to claims arising in a foreign country. 228 When determining whether the foreign country exception applies, it is important to remember that the primary factor to consider is where the negligent act or omission occurred, not where the negligent act or omission had its operative effect. 229
In Sami v. United States, 230 the plaintiff, an Afghanistan citizen, brought charges against the United States Government, the International Criminal Police Organization (Interpol), and individuals in the United States National Central Bureau of the Department of the Treasury (USNCB) for false arrest and imprisonment, libel, slander, and deprivation of his constitutional rights. 231 The plaintiff and his American ex-wife were engaged in a custody dispute over their two children, and both had secured custody over the children in different states; the plaintiff had custody in Maryland and his ex-wife had custody in Florida. 232 At a time when the children were physically in Florida, the plaintiff traveled to Florida and transported the children back to Maryland, even though he knew this action violated Florida law. 233 Immediately following this incident, the ex-wife successfully had three arrest warrants issued against the plaintiff; two in Florida and one in Maryland. 234 Next, the ex-wife feared that the plaintiff would leave the country so she contacted the USNCB, the United States' liaison with Interpol. 235 The ex-wife's fears were justified because the plaintiff did leave the country. 236 Numerous messages were sent [*511] to Interpol liaisons by USNCB along the plaintiff's expected route, and based on these requests German authorities arrested the plaintiff. 237 Soon after, however, the State Department determined that no extraditable offense was involved. 238 Even though the State Department relayed this determination to the German authorities with a request to release the plaintiff, the plaintiff was not released until four days after his original detention. 239
In the process of determining whether the United States and its officials could be held liable for the improper and false detention of the plaintiff, the Sami court reiterated that the law of the place where the negligence or wrongful act occurred determines liability under the Federal Tort Claims Act. 240 In other words, under the Federal Tort Claims Act, the imposition of liability "focuses on the place of the government employee's act or omission." 241 Additionally, the court reasoned that the foreign country exception only applies when the "act or omission of any employee of the government" occurs in a foreign country, and it will not apply if only the claim arises in a foreign country. 242 The court then focused on the legislative history of the exception, and determined that the legislative history of the exception supported the conclusion that Congress did not intend for the exception to apply if the wrongful acts, negligence, or omissions occurred in the United States. 243 Finally, the court held that the foreign country exception did not exempt the plaintiff's suit against the United States or its agents. 244
Turning now to the SOA, the act of teaching torture undeniably had its operative effect in Latin America. However, as discussed in Sami, the foreign country exception will only exempt a plaintiff's claim against the United States if the wrongful act, negligence, or omission occurred in a foreign country, but not if the operative effect of the wrongful act, [*512] negligence, or omission occurred in a foreign country. In this case the wrongful act - the act of teaching torture - occurred in the United States. Because only the operative effect occurred in a foreign country and not the wrongful act of the United States' agents, the foreign country exception does not preclude an alien plaintiff's claim against the United States.
In sum, the Federal Tort Claims Act waives the United States sovereign immunity allowing an alien plaintiff to maintain jurisdiction over the United States. Neither the limitations in the language of the Federal Tort Claims Act nor the statutory exceptions to the waiver of immunity preclude the plaintiff from bringing suit against the United States for the act of teaching torture at the SOA. However, there is one final, judicially created barrier that must be overcome by an alien plaintiff to maintain subject matter jurisdiction.
C. Political Question Doctrine
In Baker v. Carr, 245 the United States Supreme Court determined that, in order to maintain the separation of powers required by the Constitution, the judicial branch should refrain from challenging certain policy choices and value judgments that are reserved to the legislative or executive branches by the Constitution. 246 Even though the Supreme Court restricted the power of the judiciary to entertain certain political questions, the Court warned that courts should not apply the political question doctrine too broadly or discriminately by labeling any question involving the legislative or executive branch as "political" because this labeling could effectively exclude proper claims brought by a plaintiff. 247 The Court specifically noted that "the doctrine ... is one of "political questions,' not one of "political cases.'" 248 Although courts are to refrain from second-guessing the political branches of the government, the Supreme Court noted that the courts still have a role in cases involving a potential political question. The Court reasoned that the judiciary has a duty and the power to determine "whether a matter has in any measure been committed by the [*513] Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed." 249 In order to aid lower courts in ascertaining whether a political question exists in a particular case, the Court declared that the determination of a political question depends upon "a discriminating analysis of the question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action." 250
Applying the reasoning from Baker v. Carr to the SOA case, one finds that both the legislative and executive branches exceeded the power vested in them by the Constitution. Under the Constitution, Congress has the power to establish and maintain an Army. 251 However, there is no constitutional basis for allowing the Legislature to condone or permit the teaching of torture at a United States military facility. Once again, the Supremacy Clause of the Constitution makes customary international law part of the Supreme Law of the land, and Congress cannot violate this Supreme Law in any manner. Similarly, the President is the Commander in Chief of the Army and has the power to engage in foreign relations. 252 However, as in the case of Congress, the President lacks the Constitutional authority to permit or condone the training of foreign soldiers in torture tactics. The fact that the teaching of torture is done by the military, an organization primarily controlled by both the Executive and Legislative branches, does not restrict a district court from hearing the case because both the Executive and Legislative branches exceeded their Constitutional powers.
Support for this conclusion can be found in Committee of United States Citizens Living in Nicaragua v. Reagan 253 and Koohi v. United States. 254 In Committee of United States Citizens Living in Nicaragua, a group of organizations and individuals sought enforcement of the International Court of Justice's judgment in Nicaragua v. United States 255 by a United States District Court. 256 In [*514] the context of the political question doctrine, the Court of Appeals for the District of Colombia noted that the Executive branch does not have unlimited power to conduct foreign relations without supervision by the Judicial branch. 257 The court held, for political question purposes, that the plaintiff's case against the President could be maintained. 258
Furthermore, in Koohi v. United States, the Ninth Circuit Court of Appeals decided that the political question doctrine did not preclude a court from hearing a case involving a United States warship during the Iran-Iraq war. The Ninth Circuit noted that the Supreme Court had often stated that "federal courts are capable of reviewing military decisions, particularly when those decisions cause injury to civilians." 259 The Ninth Circuit further proclaimed that military operations that intruded into the civilian sector would not be shielded from judicial review by merely claiming a military necessity. 260 Moreover, the court noted that the political question doctrine would not apply because the plaintiff sought money [*515] damages, which are considered a remedy that does not intrude into the operations of the Executive or Legislative branches. 261
In the case of the SOA, the military decisions of the Army, Legislature, and President are not beyond judicial review. As in Koohi, the SOA graduates have used their internationally illegal education to intrude into and harm the civilian population. Plus, the alien plaintiff in this case is only seeking money damages from the United States that have been determined as being non-intrusive into the affairs of either the Executive or Legislative branches.
In sum, both the Legislative and Executive branches have power to control the actions of the military, but this power is not absolute or beyond the power of the courts to question especially if the power is exercised unconstitutionally. Therefore, the political question doctrine is not controlling in the alien plaintiff's case against the United States for the SOA's deadly curriculum. Because jurisdiction can be maintained against the United States in a district court, the next step is to show liability.
IV. Theory of Liability
The issue of liability against the United States for providing military training to Latin American soldiers that includes a lack of respect for human rights and torture methods is a delicate one because of the lack of precedent. At first it seems as if the United States cannot be liable at all under the Federal Tort Claims Act because liability under this Act attaches based on the doctrine of respondeat superior. 262 For this reason, one may argue that the United States cannot be liable for the actions of the SOA graduates because the graduates are not employees of the government. However, one must remember that the alien plaintiff is not alleging that the actions of the SOA graduates are the primary impetus for the lawsuit against the United States. Instead, the plaintiff is claiming that the action of the United States soldiers and other military personnel teaching and promoting torture is the cause of action. Furthermore, an alien plaintiff could not claim the United States is vicariously liable for the injuries and torture committed by SOA graduates because the United States cannot be held vicariously liable for the actions of a third party under the Federal Tort Claims Act. 263 Because the United States cannot be held [*516] vicariously liable for the torture committed by the SOA graduates and because employees of the United States did not actually commit torture, the United States must be liable under some other theory for the injuries inflicted upon the alien plaintiff by the SOA graduates. The only actions that can be a basis for liability against the United States is the actual improper training of foreign soldiers in torture tactics by the United States military.
Title 42 U.S.C. Section 1983 264 is the key piece of legislation that is used domestically by plaintiffs alleging a violation of their constitutional rights by a state or local official, agency or municipality. Even though a civil plaintiff can use Section 1983 to sue a municipality for constitutional violations, he finds himself in the same predicament the alien plaintiff suing the United States for the curriculum at the SOA finds himself in. A municipality, under Section 1983, cannot be held vicariously liable on the basis of the existence of an employer-employee relationship nor can it be held liable under a theory of respondeat superior. 265 Instead, a municipality can only be held liable under Section 1983 when the municipality itself causes the constitutional violation. 266 In other [*517] words, the municipality can only be liable when it directly causes the harm.
Many of the cases that have emerged finding a municipality directly liable under Section 1983 for a violation of a person's constitutional rights have concerned improper or deficient training of police officers or other city employees. 267 Although in the case concerning the SOA, a municipality is not the key player, the facts at issue in municipality liability cases under Section 1983 are extremely analogous to the SOA and the United States. For this reason, the jurisprudence interpreting Section 1983 provides adequate and compelling reasoning for holding the United States directly liable for the torture inflicted by the SOA graduates because of the improper, illegal, and deficient training program offered at the SOA. 268
One of the first cases dealing with municipal liability on the basis of improper training of municipal employees was Canton v. Harris. 269 In Canton, police officials had ignored the plaintiff's obvious need for medical care while she was in their custody. 270 The plaintiff alleged that the omissions of the police officers violated her due process rights under the Fourteenth Amendment. 271 At the subsequent trial, the plaintiff presented evidence showing that the shift commanders had the sole discretion to determine whether a person in police custody needed to receive medical attention, but the evidence further demonstrated that the shift commanders received no special training to help them make these determinations. 272 The Supreme Court, relying on its earlier decision in Monell v. New York City Dept. of Social Servs., 273 [*518] proclaimed that when a governmental policy or custom is executed and causes a constitutional violation and injury to an individual, the municipality itself can be held liable for the injury under Section 1983. 274 For a plaintiff to maintain a claim of liability against a municipality for the constitutional violation, the Court determined that the plaintiff needed to show the existence of a direct causal link between the municipal policy or custom and the constitutional violation. 275
Turning to the plaintiff's case, the Court reasoned that, on its face, the city's medical treatment policy for persons in police custody was constitutional. 276 The Court further reasoned, however, that this policy can be regarded as unconstitutional if it is applied in an unconstitutional manner because of the city inadequately training its police officials. 277 In addition, the Court noted that not all deficient training programs could serve as a basis for Section 1983 liability against a municipality. Instead, the Court declared that the failure to train could only be a basis for liability "where the failure to train amounts to [a] deliberate indifference to the rights of persons with whom the police come into contact" and can be considered a municipal "policy or custom" actionable under Section 1983. 278 The Court further reasoned that ""muni cipal liability under [Section] 1983 attaches where - and only where - a deliberate choice to follow a course of action is made from among various alternatives' by city policymakers." 279 In other words, liability against a municipality can only attach where the failure to train reflects a "deliberate" or "conscious" choice by a municipality. 280 The Court clarified the seemingly absurd notion of a municipality creating a policy of improper training.
It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees, but it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been [*519] deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes the injury. 281
Finally, the Court held that liability would only attach if the municipality's training program is closely related to the ultimate injury and the plaintiff could prove that the deficiency in the training program caused her injury. 282
The Supreme Court reiterated their holding in Canton of municipal liability almost a decade later in Board of the County Comm'rs of Bryan County v. Brown. 283 The plaintiff in Brown had been severely injured when a police officer pulled her from her vehicle using an "arm bar" technique and threw her to the ground. 284 The plaintiff alleged that the county was liable for her injuries because the county sheriff had hired the officer that injured her without properly reviewing the officer's background to discover a variety of misdemeanor offenses. 285 Even though the Court ultimately held that the County could not be held liable for the plaintiff's injuries because of an isolated hiring decision, the Court did discuss the requirements of establishing municipal liability. 286 The Court once again reasoned that a plaintiff must demonstrate that the municipality was the "moving force" behind the constitutional injury alleged by establishing some direct casual link between a municipal policy and the constitutional injury. 287 The Court determined that this requirement ensured that the municipality would only be liable for constitutional violations that result from the decisions and actions of its "duly constituted legislative body or of those officials whose acts may be said to be those of the municipality." 288 Once again, the Court noted that a plaintiff who claimed that a facially constitutional and lawful municipal action led to the violation of a plaintiff's constitutional right had to show that the municipal action had been taken with [*520] "deliberate indifference" to its apparent or reasonably apparent consequences. 289 Finally, the Court also discussed the proving of fault and causation in inadequate training cases.
Existence of a [deficient training] program makes proof of fault and causation at least possible in an inadequate training case. If a program does not prevent constitutional violations, municipal decision makers may eventually be put on notice that a new program is called for. Their continued adherence to an approach that they know or should know has failed to prevent tortuous conduct by employees may establish the conscious disregard for the consequences of their action - the "deliberate indifference" necessary to trigger municipal liability. 290
Although in the case brought by the hypothetical alien plaintiff, Section 1983 cannot be directly applied, the facts at issue in municipal liability cases are extremely analogous to the SOA and the United States. In the hypothetical plaintiff's case, instead of a municipality training police officers improperly that results in an individual's constitutional rights being violated, the plaintiff has the United States government training foreign soldiers improperly that results in an individual's human rights being violated. Applying the reasoning from Canton and Brown, one finds that the United States is directly liable for the torture inflicted by the SOA graduates.
The hypothetical alien plaintiff must first establish a direct causal link between the United States policy of training foreign soldiers improperly and the human rights violations inflicted upon the plaintiff. In addition, the alien plaintiff must show that the United States, through its policymakers and officials, deliberately or consciously chose to implement a course of action that amounted to a deliberate indifference to the rights of persons with whom the SOA graduates would reasonably come into contact with. 291
[*521] Turning first to the causal link, the evidence 292 demonstrates a direct link between the torture committed by the SOA graduates and the SOA intstruction. 293 The best evidence of a link between the curriculum and the human rights violations are the manuals used as part of the SOA curriculum. The manuals specifically advocate the use of torture, executions, false arrest, and numerous other forms of physical and psychological abuse - a fact that has been admitted by the Department of Defense and the Pentagon. In fact, former instructors have also admitted that some of the courses at the SOA, especially the intelligence courses, focused primarily on the worst and most horrific material contained in the manuals. Besides condoning and instructing a student in the proper art of torture, execution, extortion, coercion, and physical abuse, the manuals specifically list targets that should be considered as insurgents and that should be eliminated. This list includes religious leaders, labor activists, student activists, and other individuals who sympathize with the poor. It is an extremely unlikely coincidence that foreign soldiers who had been instructed using these manuals subsequently commit torture upon individuals in Latin America. The coincidence seems even more unlikely when one considers that the victims of torture and murder at the hands of SOA graduates had been restrained, abused, and killed in the same manner as described in the manuals. Furthermore, the majority of these victims are exactly the type of people that the manuals described as insurgents, including Archbishop Oscar Romero, Jesuit priests, nuns, union leaders, and poverty stricken peasants. The obvious conclusion from these unlikely coincidences is that the [*522] SOA graduates were enacting the instructions discussed in the manuals.
Further evidence of a direct causal link also exists by the lack of human rights training. Besides the fact that the amount of time a student at the SOA spends learning about human rights as compared to the amount of time that same student spends learning about combat and intelligence techniques is minimal, instructors at the SOA have exposed that the human rights training at the SOA is inadequate. Charles T. Call noted that the instruction at the school towards human rights is merely cosmetic and ineffective because the instructors teaching the human rights instruction are foreign soldiers who have already developed a horrific human rights record. Retired United States Army Major Joseph Blair has agreed with Call's assessment of the program, and further revealed that the soldiers treated the human rights training as a joke, which is evidenced from the school wide joke concerning the frequent death of the priest during a school training exercise. This inadequate training of soldiers to respect the rights of people that they come in contact with supports the notion that the training offered by the SOA caused the torture inflicted by the SOA graduates. By allowing foreign instructors who already have extensive and infamous human rights records to teach courses on respect and recognition of human rights creates an image that the training is not to be taken seriously.
Finally, the revelations of the former instructors and students of the SOA also support a direct causal link. Major Blair has publicly admitted that torture had been taught at the school while he was an instructor there and that the instruction at the school had been based on techniques used by the United States military during the Vietnam War. Former students have also revealed that demonstrations on how to properly commit torture had been given by American soldiers who actually tortured people for these demonstrations. It is hard to argue that these non-simulated demonstrations had been presented to the students at the SOA to show what the students were not supposed to do. Instead, the only reason for giving live demonstrations of torture is to show students exactly how and what they were suppose to do to people who were "insurgents." Based on all the evidence concerning the manuals, the inadequate human rights training, and the actual instruction in torture, one can obviously see the direct casual link between the instruction and the human rights violations committed by the SOA graduates.
[*523] Besides demonstrating a direct causal link between the human rights violations and the SOA curriculum, the plaintiff needs to demonstrate that the United States government, through its officials and officers, consciously acted with deliberate indifference. Once again the manuals themselves are the best evidence of this requirement. The manuals specifically discuss how to violate a person's human rights through torture and murder. These horrible and noxious lessons are in violation of international law if committed against combatant enemies, but the notoriousness of the lessons is increased by the fact that the manuals identify members of the civilian population as insurgents and enemies that need to be "neutralized." The fact that the United States military deliberately chose to use these manuals at the SOA evidences that the United Sta