American Journal of International Law
In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. That document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone.1 In the opinion, Bradford concluded that “[s]o far . . . as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or punished for them by the United States.”2 He also expressed the view that the actors could be prosecuted for crimes on the high seas, while noting that “some doubt rests on this point” in light of the language of the relevant criminal statute.3 Finally, he stated—in an obvious reference to the ATS4 —that there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States....5
The Bradford opinion contains one of the few early historical references to the ATS,6 so it not surprisingly has received a lot of attention. Numerous academic articles, judicial opinions, and litigation briefs have invoked the Bradford opinion, for a variety of propositions.7 Reliance on the opinion has increased since the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain, in which the Court cited the opinion in support of the proposition that the ATS pro-vides jurisdiction over certain common law causes of action derived from the law of nations.8 As an illustration of its perceived significance, both sides discussed the opinion in the oral argument before the Supreme Court in the first hearing in the pending ATS case, Kiobel v. Royal Dutch Petroleum Co.9
Bradford noted in his opinion that he had “perused and considered” both a “communication from his Britannic Majesty’s minister plenipotentiary to the Secretary of State” and an accompanying memorial.10 After conducting archival research in the records of the U.S. Department of State and the British Foreign Office, I have obtained copies of these two documents, both of which I have transcribed as appendices to this essay.11 I have also discovered additional diplomatic material relating to the dispute, which I will summarize and quote below. While these documents do not contain any “smoking guns,” they do provide additional context for under-standing the potential significance of the Bradford opinion for contemporary debates over the scope of the ATS.
This essay begins by describing two of the current ATS debates—the application of the ATS to conduct that occurs outside the United States, and the allowance of aiding and abetting liability under the ATS—and how the participants in those debates have invoked the Bradford opinion. It then considers the implications of the additional documents that I have found for those debates, and it reaches two conclusions. First, the Bradford opinion provides support for the extraterritorial application of the ATS to the conduct of U.S. citizens, but it does not suggest that such application would be proper with respect to the conduct of foreign citizens. Second, the opinion does not provide support for aiding and abetting liability, at least as that concept has been applied in modern ATS litigation. The essay concludes by noting an important connection between the ATS and U.S. responsibilities under international law.
Bradley, Curtis A., "Attorney General Bradford’s Opinion and the Alien Tort Statute" (2012). Articles. 10171.