Roadblocks to Remedies: Recently Developed Barriers to Relief for Aliens Injured by U.S. Officials, Contrary to the Founders’ Intent

Gwynne L. Skinner *

 

The founders of the United States, especially those who wrote the Constitution and the subsequent First Judiciary Act, wanted to ensure that aliens who were victims of torts in violation of the law of nations (now commonly referred to as customary international law) had the ability to seek redress in federal court for the injuries they suffered. Providing remedies for violations of the law of nations to aliens was important in order to demonstrate that the young country took the law of nations seriously and to prevent foreign conflicts, some of which might lead to war. At the time of the nation’s founding, just as it does now, international law required that nations provide remedies to foreign citizens who were wrongfully injured while under the protection of the host nation, an obligation the founders took seriously.

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*Assistant Professor, Willamette University College of Law. M.St. (LL.M. equivalent), International Human Rights Law, Oxford University; J.D., University of Iowa; M.A., University of Iowa; B.A., Political Science, University of Northern Iowa. The author wishes to thank Professors Beth Stephens and Chimène Keitner for their helpful comments and input regarding this article. However, all opinions and any errors are the author’s. It is important to also disclose that the author is counsel for plaintiffs in two civil cases brought on behalf of former Guantanamo Bay detainees Hamad v. Gates and Ameur v. Gates, and was plaintiff’s counsel in the case of Corrie v. Caterpillar. These cases are mentioned in this article.