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ERI works vigorously to defend the Alien Tort Claims Act (ATCA), which permits victims of international human rights abuses to sue in U.S. courts.
On Monday, October 17, Senator Dianne Feinstein introduced S. 1874, a bill that would eviscerate the Alien Tort Claims Act (ATCA), the law under which torturers and genocidal killers may be held accountable in US courts for human rights abuses. Feinstein’s bill would make it impossible to bring most, if not all, of these cases. S.1874 is called the Alien Tort Statute Reform Act. It should be called the Torturer’s Protection Act.
Senator Feinstein says that her new bill “clarifies the meaning and scope”of ATCA. Rather than clarifying ATCA, S.1874 destroys it. ATCA cases against Nazi collaborators, dictators like Ferdinand Marcos and Radovan Karadzic, as well as companies like Unocal that have been complicit in mass human rights violations would have been impossible under this bill. This bill would offer these perpetrators and collaborators safe haven on US shores. Among the beneficiaries of S.1874 would be several California companies, notably Chevron, a contributor to Feinstein’s campaigns. Chevron is a defendant in a lawsuit relating to its complicity in the killing of peaceful protestors by the Nigerian military. EarthRights International is co-counsel in this lawsuit.
Among the lowlights of S.1874:
In short, S.1874 is a pro-torture, anti-human rights bill.
{mospagebreak heading=Feature&title=Text of S.1874}
To amend title 28, United States Code, to clarify jurisdiction of Federal Courts over a tort action brought by an alien, and for other purposes.
IN THE SENATE OF THE UNITED STATES
October 17, 2005
Mrs. FEINSTEIN introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To amend title 28, United States Code, to clarify jurisdiction of Federal Courts over a tort action brought by an alien, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Alien Tort Statute Reform Act'.
SEC. 2. SUITS BY ALIENS.
Section 1350 of title 28, United States Code, is amended to read as follows:
`Sec. 1350. Alien's action for tort
`(a) Jurisdiction of District Courts- The district courts shall have original and exclusive jurisdiction of any civil action brought by an alien asserting a claim of torture, extrajudicial killing, genocide, piracy, slavery, or slave trading if a defendant is a direct participant acting with specific intent to commit the alleged tort. The district courts shall not have jurisdiction over such civil suits brought by an alien if a foreign state is responsible for committing the tort in question within its sovereign territory.
`(b) Definitions- For the purposes of this section:
`(1) DEFENDANT- The term `defendant' means any person subject to the jurisdiction of the district courts of the United States, including--
`(A) a United States citizen;
`(B) a natural person who is a permanent resident of the United States;
`(C) a natural person who resides in the United States; or
`(D) a partnership, corporation, or other legal entity organized under the laws of the United States or of a foreign state.
`(2) FOREIGN STATE- The term `foreign state' has the meaning given that term in section 1603 of title 28, United States Code.
`(3) EXTRAJUDICIAL KILLING- The term `extrajudicial killing'--
`(A) means a deliberated killing, which--
`(i) notwithstanding the jurisdictional limitations referred to in subsection (a), is carried out by an individual under actual or apparent authority, or color of law, of any foreign state;
`(ii) is directed against another individual in the offender's custody or physical control; and
`(iii) is not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples; and
`(B) does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign state.
`(4) GENOCIDE- The term `genocide' means, whether in time of peace or in time of war, an act carried out, or an attempt to carry out an act, with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such, which--
`(A) kills members of that group;
`(B) causes serious bodily injury to members of that group;
`(C) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
`(D) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;
`(E) imposes measures intended to prevent births within the group; or
`(F) transfers by force children of the group to another group.
`(5) PIRACY- The term `piracy' means--
`(A) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed--
`(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; or
`(ii) against a ship, aircraft, persons, or property in a place outside the jurisdiction of any country;
`(B) any act of voluntary participation in the operations of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; or
`(C) any act of inciting or of intentionally facilitating an act described in subparagraph (A) or (B).
`(6) SLAVE TRADING- The term `slave trading' includes--
`(A) all acts involved in the capture, acquisition, or disposal of a person with intent to reduce such person to slavery;
`(B) all acts involved in the acquisition of a slave with a view to selling or exchanging such slave;
`(C) all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged; and
`(D) in general, every act of trade or transport of slaves.
`(7) SLAVERY- The term `slavery' means the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.
`(8) TORTURE-
`(A) IN GENERAL- Notwithstanding the jurisdictional limitations referred to in subsection (a), the term `torture' means any act, carried out by an individual under actual or apparent authority, or color of law, of any foreign state, directed against another individual in the offender's custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind.
`(B) MENTAL PAIN OR SUFFERING- In subparagraph (A), mental pain or suffering refers to prolonged mental harm caused by or resulting from--
`(i) the intentional infliction or threatened infliction of severe physical pain or suffering;
`(ii) the administration or application, or threatened administration or application, of mind altering substances, or other procedures calculated to disrupt profoundly the senses or the personality;
`(iii) the threat of imminent death; or
`(iv) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
`(c) Liability for Damages- Any defendant who is a direct participant acting with specific intent to commit a tort referred to in subsection (a) against an alien shall be liable for damages to that alien or to any person who may be a claimant in an action for the wrongful death of that alien.
`(d) Exhaustion of Remedies- A district court shall abstain from the exercise of jurisdiction over a civil action described in subsection (a) if the claimant has not exhausted adequate and available remedies in the place in which the injury occurred. Adequate and available remedies include those available through local courts, claims tribunals, and similar legal processes.
`(e) Foreign Policy Interests of the United States- No court in the United States shall proceed in considering the merits of a claim under subsection (a) if the President, or a designee of the President, adequately certifies to the court in writing that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the United States.
`(f) Procedural Requirements-
`(1) SPECIFICITY- In any action brought under this section, the complaint shall state with particularity specific facts that--
`(A) describe each tort alleged to have been committed and demonstrate the reason or reasons why the tort action may be brought under this section, provided that if an allegation is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed; and
`(B) demonstrate that the defendant had the specific intent to commit the tort alleged to have been committed.
`(2) MOTION TO DISMISS- In any action brought under this section, the court shall, on the motion of any defendant, dismiss the complaint if the requirements of subparagraphs (A) and (B) of paragraph (1) are not met.
`(3) STAY OF DISCOVERY- In any action brought under this section, all discovery related to the merits of the claim and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.
`(4) PLAINTIFF IDENTITY-
`(A) REQUIREMENT- Subject to subparagraph (B), in any action brought under this section, the first and last names of all plaintiffs shall be disclosed in the complaint filed with the court.
`(B) EXCEPTION- A court may permit an anonymous filing of a complaint if a plaintiff's life or safety would be endangered by publicly disclosing the plaintiff's identity.
`(g) Fees- Contingency fee arrangements are prohibited in any action brought under the jurisdiction provided in this section.
`(h) Statute of Limitations- No action shall be maintained under this section unless it is commenced not later than 10 years from the date the injury occurred.
`(i) Application of Other Laws- Nothing in this section may be construed to waive or modify the application of any provision of the Class Action Fairness Act of 2005 (Public Law 109-2; 119 Stat. 4) and any amendment made by that Act, or of title 28, United States Code, to any class action law suit brought under this section.'.
{mospagebreak heading=Feature&title=Commentary of S.1874 Part 1}
From the Congressional Record: October 17, 2005
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By Mrs. FEINSTEIN:
S . 1874 . A bill to amend title 28, United States Code, to clarify jurisdiction of Federal Courts over a tort action brought by an alien, and for other purposes; to the Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, I am pleased to introduce legislation that clarifies the meaning and scope of the Alien Tort Statute.
This 200-year-old law has spawned dozens of legal cases involving U.S. multinational companies, human rights groups, foreign plaintiffs, the State Department, and millions of dollars in litigation costs. Numerous companies in California are in the midst of these lawsuits as defendants and it is my view that legislation can help refine and improve the law.
Judges have grappled in interpreting and applying the statute for years now without a consensus view emerging. I think it would be fair to say that confusion reigns supreme when it comes to alien tort suits.
Given this opaque legal picture, last summer the Supreme Court ruled on a case, Sosa v. Alvarez Machain, in an attempt to reconcile conflicting decisions from judges across the country.
The Court's June 2004 ruling was notable, for embracing certain principles that will help guide the Judiciary branch on alien tort claim issues but for leaving many questions unanswered as well.
It held that a substantive, legal basis exists for foreigners to sue U.S. individuals and corporations over alleged human rights violations occurring in overseas locations. The Court essentially affirmed that a limited, implicit sanction for courts exists to decide certain alien tort claims.
At the same time, the opinion provided a wide berth for what the claims might actually be. The Court hedged on key issues, without clearly demarcating what suits ought to go forward under the statute and which ones should be summarily dismissed.
In particular the ruling did not address: which international law claims by foreigners should be heard in a U.S. district court, and the standard of liability for U.S. companies facing these human rights charges.
To clarify these areas, the Justices wrote that they would welcome ``any congressional guidance'' on the breadth of the statute. During oral arguments a number of the Justices appeared to concur that a legislative approach would make sense. One Justice even commented that ``I just wonder if it isn't wise to ..... let Congress have a look at this thing.''
Those views were echoed by a Washington Post editorial that followed soon after. The paper stated that the alien tort law has ``formed the basis for litigation against U.S. companies involved with nefarious regimes abroad. And while horrid conduct by an American company ought to be, where proven, grounds for action in American courts, the parameters of such litigation are surely a legislative question, not one for the freewheeling discretion of judges. ..... But the court left open the possibility that at least some of these suits can proceed in the absence of further congressional action.''
The Court's perspective, along with the Post commentary, indicates, at least to me, a sense of caution about imposing by judicial fiat action that is better left to consideration and refinement by the Congress.
The Court's hesitation to legislate from the bench shifts the responsibility to this body, I believe, to pass legislation that settles on a reasonable legal means that plaintiffs and defendants alike can rely on to litigate their differences.
I believe the measure we are introducing today accomplishes this basic and important goal.
Right now, courts are essentially adrift in terms of being able to pinpoint the underlying meaning, scope and intent of this 200-year-old statute. In its entirety, it reads: ``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.''
The economy of words makes the law abstruse and subject to varying interpretation. And complex, lengthy and unnecessary litigation has burdened the courts as a result.
This new bill will establish a fair, legal basis for filing suit under the Alien Tort Statute (ATS). And it will have the added benefit of explicating the law's dual jurisdictional and substantive nature.
The measure: specifies a legal standard convicting defendants of wrongdoing if they directly participate with specific intent to commit the alleged tort; codifies international claims under the Alien Tort law to include genocide, torture, slavery and slave trade, extrajudicial killing, and piracy; expands on existing statutory law, the Torture Victim Protection Act; states that Federal courts shall not proceed with tort claims when the President adequately certifies that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the U.S.; maintains that every effort should be made to try these cases in the country of origin before granting jurisdiction in U.S. courts; invokes a 10-year statute of limitations on ATS charges filed against U.S. multinational companies; and disallows contingency fee arrangements for legal representatives of plaintiffs or defendants.
The Supreme Court's delineation that the Alien Tort law is jurisdictional in one sense, but recognizes a restricted category of substantive claims encompassed by the law of nations, leaves many unresolved questions.
The historical origins of the ATS, passed by the First Congress as part of the Judiciary Act of 1789, suggest that certain offenses relevant to that period in American history--piracy, infringing the rights of ambassadors, and prevention of safe travel abroad--were meant to be prosecutable. But Justice Souter's Alvarez-Machain opinion notes that a slim legislative history of the statute makes it difficult to surmise the law's true intent.
At the same time, Justice Souter opined: ``Still, the history does tend to support two propositions. First, there is every reason to suppose that the First Congress did not pass the ATS as a jurisdictional convenience to be placed on the shelf for use by a future Congress or state legislature that might, some day, authorize the creation of causes of action or itself decide to make some element of the law of nations actionable for the benefit of foreigners. The anxieties of the preconstitutional period cannot be ignored easily enough to think that the statute was not meant to have a practical effect. ..... The second inference to be drawn from the history is that Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations.''
{mospagebreak heading=Feature&title=Commentary of S.1874 Part 2}
The opinion ranges further, that, such a ``modest set of actions'' indeed applies to current times, not merely offenses grounded in law two hundred
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years ago. The critical portion reads: ``Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with specificity comparable to the features of the 18th century paradigms we have recognized.''
I am uncomfortable with such a nebulous, open-ended legal approach permitting courts to entertain suits based on a ``norm of international character'' and ``specificity'' consistent with crimes of early American history. Adjudicating cases based on these broad historical and legal precepts is admirable. In practical terms it remains very difficult.
The Congress ought to weigh in and play a constructive role. Without legislation, judges will continue to reach markedly different conclusions under the law, based on arbitrary interpretations of case-specific facts and other considerations.
Let's take the legal mystery out of the statute and what qualifies as an alien tort and replace it with something that is concrete and appropriate for the times.
At the heart of this legislation is codifying a class of violations of international law that will discourage defendant companies from consorting with human rights violators in any respect. They will be held liable if they do so by a specific standard that judges whether they intentionally and directly caused certain violations of human rights.
A plaintiff victim will be able to vindicate their rights by filing an express statutory cause of action based on a half dozen egregious wrongs. Regardless of the foreign policy and trade implications, defendant U.S. companies will be held fully accountable under the bill for bad corporate behavior in their overseas business operations.
That is as it should be. Certain alien torts in violation of the law of nations ought to be cognizable and this legislation ensures that result. Moreover, the fact that specific crimes are made actionable and enforceable will aid human rights organizations in their fight to strengthen the deterrent effect of the law for potential violators.
Regarding the defendant perspective, in one friend of the court brief submitted in the Alvarez Machain case, the argument was made that ``..... companies face enormous uncertainty regarding the scope of potential claims under the statute....... Because ATS cases are based upon an implied cause of action without any clear standards of liability, there may be little companies can do to protect themselves against potential claims, short of simply ceasing to do business in the many nations whose human rights practices come up short against evolving Western ideals.''
The business community ought to embrace this legislation precisely because it wipes away this uncertainty. The best way to encourage U.S. multinationals to invest abroad is: 1. by specifying a universe of the most egregious human rights violations that they may be held liable for and 2. offering a clear, understandable legal standard that judges their actions accordingly. This legislative measure tackles both issues head on.
There are estimates that dozens of existing alien tort suits claim damages--collectively--in excess of $200 billion dollars. That's an extraordinary sum that rightly concerns the U.S. business community, particularly given numerous inconsistent federal courts verdicts handed down in the past two decades.
This legislation deters private plaintiffs from filing sweeping and specious claims simply because a corporation has a U.S. legal nexus and deep pockets. Yet, it expands the basis for foreign plaintiffs pursuing certain international law causes of action in federal court by codifying their rights in a judicious way.
While some in the U.S. business community would prefer that the Alien Tort statute be deleted from the U.S. Code altogether, I would respectfully disagree. A fair compromise that balances the interests of U.S. companies and human rights organizations is what this legislation seeks to accomplish.
The Congress has waded into this debate before, passing the Torture Victim Protection Act in 1991, and this new legislation contains many similar elements: a statute of limitations, a statutory exhaustion provision, and specifying torture and extrajudicial killing as within the adjudicatory discretion of a district court.
There is precedent, then, for the Legislative branch acting to provide civil redress for victims of torture. Asserting extraterritorial jurisdiction under the ATS, for torture and other jus cogen violations, has a firm footing in American jurisprudence.
The legislative history of the TVPA is important because it spells out the constitutional grounds justifying that statutory law and this new legislation as well.
The Senate Judiciary Committee report on the TVPA states as follows: ``Under article III of the Constitution, the Federal judiciary has the power to adjudicate cases `arising under' the `law of the United States.' The Supreme Court has held that the law of the United States includes international law. .... Congress's ability to enact this legislation also derives from article I, section 8 of the Constitution which authorizes Congress `to define and punish ..... Offenses against the Law of Nations.' ''
Existing case law confirms the point that Congress has given the federal courts the power to interpret and apply international human rights law. The notable Paquete Habana decision states, in part, that ``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...... Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation [the Torture Victim Protection Act] supplementing the judicial determination in some detail.''
The view expressed in the Alvarez Machain case last year was much the same, that no development in the last two centuries has ``categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law.''
Different precedent, Tel Oren v. Libyan Arab Republic, also posits that civil liability should ensue from certain violations of international law, suggesting that the ``limits of section 1350's [the ATS] reach'' be defined by ``a handful of heinous actions--each of which violates definable, universal and obligatory norms.''
This legislation fills that legal vessel with the most egregious crimes: genocide, torture, slavery and slave trading, extrajudicial killing, and piracy. These jus cogen offenses are singled out through 1. stare decisis, 2. the Restatement (Third) of Foreign Relations Law, 3. academic writings, 4. official annual human rights assessments from the State Department and 5. among the writings and publications of many human rights and international law advocacy groups.
Congress is in the best position to make the determination of what falls within the ambit of the statute, not judges across America who lack expertise, time, and resources to assess what constitutes definable, specific, universal, and obligatory norms of international law. The bill, I would submit, represents a good faith effort in permitting these tortious acts, all firmly established and well defined in international law norms, to be prosecuted in U.S. district courts.
I was interested to read the views last year of the head of the National Foreign Trade Council, William Reinsch, that ``these cases are going to end up in the Supreme Court ..... and the Court will over time end up defining what in its judgment constitutes the law of nations and what does not. But that seems to us a fairly circuitous way of doing things.'' I would concur, particularly since the Supreme Court's decision last year in the Alvarez Machain case did not clear up the inherent vagaries in the law.
A significant provision in this legislation creates a standard of liability that requires plaintiffs to show that a defendant directly participated with specific intent in
carrying out the alleged tort. In my view, we need to deter legal fishing expeditions, whereby plaintiffs come to the bar with flinty facts backing weak charges.
{mospagebreak heading=Feature&title=Commentary of S.1874 Part 3}
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Their real intent, it seems, is to rely on an extensive legal discovery process to uncover matters that embarrass companies and delay their business plans.
In the groundbreaking 1980 Filartiga v. Pena-Irala case, for example, the threshold requirement laid out was that the offense needed to be ``clear and unambiguous'' to be viable under the statute. Succeeding cases have affirmed a standard essentially requiring proof of a defendant aiding and abetting the worst human rights violations. This bill replaces the current aiding and liability standard for good reason: these foreign-based claims demand a particularity of facts that is both strong and specific.
I would submit that the existing ambiguous grant of jurisdiction needs more refinement to provide judges legal bright lines for deciding these cases. My bill offers precise, and fair, treatment for which cases get standing in a U.S. court.
A common theme in dozens of cases alien tort cases is whether the facts and law combine to present a nonjusticiable political question. Each cause of action is obviously different, and whether the matter ought to be under the province of a different branch of government requires careful analysis.
I would certainly agree that certain prudential doctrines, act of state, political question, foreign sovereign immunity, forum non conveniens, and considerations of comity among nations, at times can be appropriately invoked to limit jurisdiction.
Part of that consideration can usefully come from statements of interest and certifications submitted by the Executive branch; for that reason, the legislation I'm offering preserves a suitable role for the Executive branch to weigh in. If a judge determines that a certification offered by the State Department adequately justifies that harm will come to U.S. foreign policy interests if an alien tort suit proceeds, then dismissal is warranted.
In regards to restricting the statute of limitations to ten years, equitable tolling considerations should be explicitly considered in interpreting provisions in the legislation. There are numerous factors that give rise to equitable tolling and long-established judge-made doctrine in this area is not inconsistent with the goals of my bill.
Complementary legislation which I raised earlier, the Torture Victim Protection Act, upholds the principle of equitable tolling. The Judiciary Committee report on that measure notes some common examples:
``The statute of limitation should be tolled during the time the defendant was absent from the United States or from any jurisdiction in which the same or a similar action arising from the same facts may be maintained by the plaintiff, provided that the remedy in that jurisdiction is adequate and available. Excluded also from calculation of the statute of limitations would be the period when a defendant has immunity from suit. The statute of limitations should also be tolled for the period of time in which the plaintiff is imprisoned or otherwise incapacitated.''
I would submit that all of these listed circumstances, and others, are sufficient to suspend the running of the time under my legislation.
Let me conclude by referring back to one of the Supreme Court's foundational points in the Alvarez-Machain case that ``despite considerable scholarly attention, it is fair to say that a consensus understanding of what Congress intended has proven elusive.''
The 33 words contained in the law remain a ``legal Lohengrin'' since ``no one seems to know whence it came'' added a judge hearing a different case some years ago. As a result, costly, complex litigation proceeds forward across the country.
Courts deserve guidance from Congress about how to treat and interpret the statute, particularly in light of the growing importance of international trade and commerce. In a major address Supreme Court Justice O'Connor recently observed that ``international law has emerged in ways that affect all courts, both here and abroad. The reason is globalization. Its importance should not be underestimated. Thirty percent or more of our gross domestic product is internationally derived.'' Yet these particular suits, brought by foreigners for massive monetary damages, threaten the international economic activities that are important to sustaining the American economy.
The suits should be able to go forward, but judges need better legal tools to make heads or tails of the cases that come before them hence the motivation for introducing the Alien Tort Statute Reform Act.
With full understanding of the Supreme Court's admonition to act with judicial caution in framing the alien tort statute, I believe it is time for Congress to bring clarity to the law and this proposed legislation does so.
I look forward to working with colleagues on the Judiciary Committee, through the hearing process and other means, to give this matter serious consideration by the Legislative branch.
I ask unanimous consent that the text of the legislation be printed in the RECORD.
There being no objection, the bill was ordered to be printed in the RECORD, as follows:
S . 1874
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Alien Tort Statute Reform Act''.
SEC. 2. SUITS BY ALIENS.
Section 1350 of title 28, United States Code, is amended to read as follows: ``§1350. Alien's action for tort
``(a) Jurisdiction of District Courts.--The district courts shall have original and exclusive jurisdiction of any civil action brought by an alien asserting a claim of torture, extrajudicial killing, genocide, piracy, slavery, or slave trading if a defendant is a direct participant acting with specific intent to commit the alleged tort. The district courts shall not have jurisdiction over such civil suits brought by an alien if a foreign state is responsible for committing the tort in question within its sovereign territory.
``(b) Definitions.--For the purposes of this section:
``(1) DEFENDANT.--The term `defendant' means any person subject to the jurisdiction of the district courts of the United States, including--
``(A) a United States citizen;
``(B) a natural person who is a permanent resident of the United States;
``(C) a natural person who resides in the United States; or
``(D) a partnership, corporation, or other legal entity organized under the laws of the United States or of a foreign state.
``(2) FOREIGN STATE.--The term `foreign state' has the meaning given that term in section 1603 of title 28, United States Code.
``(3) EXTRAJUDICIAL KILLING.--The term `extrajudicial killing'--
``(A) means a deliberated killing, which--
``(i) notwithstanding the jurisdictional limitations referred to in subsection (a), is carried out by an individual under actual or apparent authority, or color of law, of any foreign state;
``(ii) is directed against another individual in the offender's custody or physical control; and
``(iii) is not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples; and
``(B) does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign state.
``(4) GENOCIDE.--The term `genocide' means, whether in time of peace or in time of war, an act carried out, or an attempt to carry out an act, with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such, which--
``(A) kills members of that group;
``(B) causes serious bodily injury to members of that group;
``(C) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
``(D) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;
``(E) imposes measures intended to prevent births within the group; or
``(F) transfers by force children of the group to another group.
``(5) PIRACY.--The term `piracy' means--
``(A) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed--
``(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; or
``(ii) against a ship, aircraft, persons, or property in a place outside the jurisdiction of any country;
``(B) any act of voluntary participation in the operations of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; or
``(C) any act of inciting or of intentionally facilitating an act described in subparagraph (A) or (B).
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``(6) SLAVE TRADING.--The term `slave trading' includes--
``(A) all acts involved in the capture, acquisition, or disposal of a person with intent to reduce such person to slavery;
``(B) all acts involved in the acquisition of a slave with a view to selling or exchanging such slave;
``(C) all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged; and
``(D) in general, every act of trade or transport of slaves.
``(7) SLAVERY.--The term `slavery' means the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.
``(8) TORTURE.--
``(A) IN GENERAL.--Notwithstanding the jurisdictional limitations referred to in subsection (a), the term `torture' means any act, carried out by an individual under actual or apparent authority, or color of law, of any foreign state, directed against another individual in the offender's custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind.
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