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Full Opinion
SOSA
v.
ALVAREZ-MACHAIN ET AL.
Supreme Court of United States.
*693 *694 *695 SOUTER, J., delivered the opinion of the Court, Parts I and III of which were unanimous, Part II of which was joined by REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., and Part IV of which was joined by STEVENS, O'CONNOR, KENNEDY, GINSBURG, and BREYER, JJ. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 739. GINSBURG, J., filed an opinion concurring in part and concurring *696 in the judgment, in which BREYER, J., joined, post, p. 751. BREYER, J., filed an opinion concurring in part and concurring in the judgment, post, p. 760.
Deputy Solicitor General Clement argued the cause for the United States, as petitioner in No. 03-485, and respondent under this Court's Rule 12.6 in support of petitioner in No. 03-339. With him on the briefs were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Katsas, Gregory G. Garre, Jeffrey A. Lamken, Douglas N. Letter, Barbara L. Herwig, Robert M. Loeb, and William H. Taft IV. Carter G. Phillips argued the cause for petitioner in No. 03-339. With him on the briefs were Joseph R. Guerra, Marinn F. Carlson, Maria T. DiGiulian, Ryan D. Nelson, and Charles S. Leeper.
Paul L. Hoffman argued the cause for respondent Alvarez-Machain in both cases. With him on the brief were Erwin Chemerinsky, Ralph G. Steinhardt, Mark D. Rosenbaum, Steven R. Shapiro, Douglas E. Mirell, and W. Allan Edmiston.[]
*697 JUSTICE SOUTER delivered the opinion of the Court.
The two issues are whether respondent Alvarez-Machain's allegation that the Drug Enforcement Administration instigated his abduction from Mexico for criminal trial in the United States supports a claim against the Government under the Federal Tort Claims Act (FTCA or Act), 28 U. S. C. §§ 1346(b)(1), 2671-2680, and whether he may recover under the Alien Tort Statute (ATS), 28 U. S. C. § 1350. We hold that he is not entitled to a remedy under either statute.
I
We have considered the underlying facts before, United States v. Alvarez-Machain, 504 U. S. 655 (1992). In 1985, an agent of the Drug Enforcement Administration (DEA), Enrique Camarena-Salazar, was captured on assignment in Mexico and taken to a house in Guadalajara, where he was tortured over the course of a 2-day interrogation, then murdered. Based in part on eyewitness testimony, DEA officials in the United States came to believe that respondent Humberto Alvarez-Machain (Alvarez), a Mexican physician, was present at the house and acted to prolong the agent's life in order to extend the interrogation and torture. Id., at 657.
In 1990, a federal grand jury indicted Alvarez for the torture and murder of Camarena-Salazar, and the United States District Court for the Central District of California issued a *698 warrant for his arrest. 331 F. 3d 604, 609 (CA9 2003) (en banc). The DEA asked the Mexican Government for help in getting Alvarez into the United States, but when the requests and negotiations proved fruitless, the DEA approved a plan to hire Mexican nationals to seize Alvarez and bring him to the United States for trial. As so planned, a group of Mexicans, including petitioner Jose Francisco Sosa, abducted Alvarez from his house, held him overnight in a motel, and brought him by private plane to El Paso, Texas, where he was arrested by federal officers. Ibid.
Once in American custody, Alvarez moved to dismiss the indictment on the ground that his seizure was "outrageous governmental conduct," Alvarez-Machain, 504 U. S., at 658, and violated the extradition treaty between the United States and Mexico. The District Court agreed, the Ninth Circuit affirmed, and we reversed, id., at 670, holding that the fact of Alvarez's forcible seizure did not affect the jurisdiction of a federal court. The case was tried in 1992, and ended at the close of the Government's case, when the District Court granted Alvarez's motion for a judgment of acquittal.
In 1993, after returning to Mexico, Alvarez began the civil action before us here. He sued Sosa, Mexican citizen and DEA operative Antonio Garate-Bustamante, five unnamed Mexican civilians, the United States, and four DEA agents. 331 F. 3d, at 610. So far as it matters here, Alvarez sought damages from the United States under the FTCA, alleging false arrest, and from Sosa under the ATS, for a violation of the law of nations. The former statute authorizes suit "for . . . personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U. S. C. § 1346(b)(1). The latter provides in its entirety that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation *699 of the law of nations or a treaty of the United States." § 1350.
The District Court granted the Government's motion to dismiss the FTCA claim, but awarded summary judgment and $25,000 in damages to Alvarez on the ATS claim. A three-judge panel of the Ninth Circuit then affirmed the ATS judgment, but reversed the dismissal of the FTCA claim. 266 F. 3d 1045 (2001).
A divided en banc court came to the same conclusion. 331 F. 3d, at 641. As for the ATS claim, the court called on its own precedent, "that [the ATS] not only provides federal courts with subject matter jurisdiction, but also creates a cause of action for an alleged violation of the law of nations." Id., at 612. The Circuit then relied upon what it called the "clear and universally recognized norm prohibiting arbitrary arrest and detention," id., at 620, to support the conclusion that Alvarez's arrest amounted to a tort in violation of international law. On the FTCA claim, the Ninth Circuit held that, because "the DEA had no authority to effect Alvarez's arrest and detention in Mexico," id., at 608, the United States was liable to him under California law for the tort of false arrest, id., at 640-641.
We granted certiorari in these companion cases to clarify the scope of both the FTCA and the ATS. 540 U. S. 1045 (2003). We now reverse in each.
II
The Government seeks reversal of the judgment of liability under the FTCA on two principal grounds. It argues that the arrest could not have been tortious, because it was authorized by 21 U. S. C. § 878, setting out the arrest authority of the DEA, and it says that in any event the liability asserted here falls within the FTCA exception to waiver of sovereign immunity for claims "arising in a foreign country," 28 U. S. C. § 2680(k). We think the exception applies and decide on that ground.
*700 A
The FTCA "was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances." Richards v. United States, 369 U. S. 1, 6 (1962); see also 28 U. S. C. § 2674. The Act accordingly gives federal district courts jurisdiction over claims against the United States for injury "caused by the negligent or 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." § 1346(b)(1). But the Act also limits its waiver of sovereign immunity in a number of ways. See § 2680 (no waiver as to, e. g., "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter," "[a]ny claim for damages caused by the imposition or establishment of a quarantine by the United States," or "[a]ny claim arising from the activities of the Panama Canal Company").
Here the significant limitation on the waiver of immunity is the Act's exception for "[a]ny claim arising in a foreign country," § 2680(k), a provision that on its face seems plainly applicable to the facts of this action. In the Ninth Circuit's view, once Alvarez was within the borders of the United States, his detention was not tortious, see 331 F. 3d, at 636-637; the appellate court suggested that the Government's liability to Alvarez rested solely upon a false arrest claim. Id., at 640-641. Alvarez's arrest, however, was said to be "false," and thus tortious, only because, and only to the extent that, it took place and endured in Mexico.[1] The actions *701 in Mexico are thus most naturally understood as the kernel of a "claim arising in a foreign country," and barred from suit under the exception to the waiver of immunity.
Notwithstanding the straightforward language of the foreign country exception, the Ninth Circuit allowed the action to proceed under what has come to be known as the "headquarters doctrine." Some Courts of Appeals, reasoning that "[t]he entire scheme of the FTCA focuses on the place where the negligent or wrongful act or omission of the government employee occurred," Sami v. United States, 617 F. 2d 755, 761 (CADC 1979), have concluded that the foreign country exception does not exempt the United States from suit "for acts or omissions occurring here which have their operative effect in another country." Id., at 762 (refusing to apply § 2680(k) where a communique sent from the United States by a federal law enforcement officer resulted in plaintiff's wrongful detention in Germany).[2] Headquarters claims "typically involve allegations of negligent guidance in an office within the United States of employees who cause damage while in a foreign country, or of activities which take place within a foreign country." Cominotto v. United States, 802 F. 2d 1127, 1130 (CA9 1986). In such instances, these courts have concluded that § 2680(k) does not bar suit.
*702 The reasoning of the Ninth Circuit here was that, since Alvarez's abduction in Mexico was the direct result of wrongful acts of planning and direction by DEA agents located in California, "Alvarez's abduction fits the headquarters doctrine like a glove." 331 F. 3d, at 638.
"Working out of DEA offices in Los Angeles, [DEA agents] made the decision to kidnap Alvarez and . . . gave [their Mexican intermediary] precise instructions on whom to recruit, how to seize Alvarez, and how he should be treated during the trip to the United States. DEA officials in Washington, D. C., approved the details of the operation. After Alvarez was abducted according to plan, DEA agents supervised his transportation into the United States, telling the arrest team where to land the plane and obtaining clearance in El Paso for landing. The United States, and California in particular, served as command central for the operation carried out in Mexico." Id., at 638-639.
Thus, the Ninth Circuit held that Alvarez's claim did not "aris[e] in" a foreign country.
The potential effect of this sort of headquarters analysis flashes the yellow caution light. "[I]t will virtually always be possible to assert that the negligent activity that injured the plaintiff [abroad] was the consequence of faulty training, selection or supervisionor even less than that, lack of careful training, selection or supervisionin the United States." Beattie v. United States, 756 F. 2d 91, 119 (CADC 1984) (Scalia, J., dissenting). Legal malpractice claims, Knisley v. United States, 817 F. Supp. 680, 691-693 (SD Ohio 1993), allegations of negligent medical care, Newborn v. United States, 238 F. Supp. 2d 145, 148-149 (DC 2002), and even slip-and-fall cases, Eaglin v. United States, Dept. of Army, 794 F. 2d 981, 983-984 (CA5 1986), can all be repackaged as headquarters claims based on a failure to train, a failure to warn, the offering of bad advice, or the adoption of a negligent policy. If *703 we were to approve the headquarters exception to the foreign country exception, the "`headquarters claim' [would] become a standard part of FTCA litigation" in cases potentially implicating the foreign country exception. Beattie, supra, at 119 (Scalia, J., dissenting). The headquarters doctrine threatens to swallow the foreign country exception whole, certainly at the pleadings stage.
The need for skepticism is borne out by two considerations. One of them is pertinent to cases like this one, where harm was arguably caused both by individual action in a foreign country as well as by planning in the United States; the other is suggested simply because the harm occurred on foreign soil.
B
Although not every headquarters case is rested on an explicit analysis of proximate causation, this notion of cause is necessary to connect the domestic breach of duty (at headquarters) with the action in the foreign country (in a case like this) producing the foreign harm or injury. It is necessary, in other words, to conclude that the act or omission at home headquarters was sufficiently close to the ultimate injury, and sufficiently important in producing it, to make it reasonable to follow liability back to the headquarters behavior. Only in this way could the behavior at headquarters properly be seen as the act or omission on which all FTCA liability must rest under §2675. See, e. g., Cominotto, supra, at 1130 ("[A] headquarters claim exists where negligent acts in the United States proximately cause harm in a foreign country"); Eaglin, supra, at 983 (noting that headquarters cases require "a plausible proximate nexus or connection between acts or omissions in the United States and the resulting damage or injury in a foreign country").
Recognizing this connection of proximate cause between domestic behavior and foreign harm or injury is not, however, sufficient of itself to bar application of the foreign country exception to a claim resting on that same foreign consequence. *704 Proximate cause is causation substantial enough and close enough to the harm to be recognized by law, but a given proximate cause need not be, and frequently is not, the exclusive proximate cause of harm. See, e. g., 57A Am. Jur. 2d § 529 (2004) (discussing proper jury instructions in cases involving multiple proximate causes); Beattie, supra, at 121 (Scalia, J., dissenting) ("[I]n the ordinary case there may be several points along the chain of causality" pertinent to the enquiry). Here, for example, assuming that the direction by DEA officials in California was a proximate cause of the abduction, the actions of Sosa and others in Mexico were just as surely proximate causes, as well. Thus, understanding that California planning was a legal cause of the harm in no way eliminates the conclusion that the claim here arose from harm proximately caused by acts in Mexico. At most, recognition of additional domestic causation under the headquarters doctrine leaves an open question whether the exception applies to the claim.
C
Not only does domestic proximate causation under the headquarters doctrine fail to eliminate application of the foreign country exception, but there is good reason to think that Congress understood a claim "arising in" a foreign country in such a way as to bar application of the headquarters doctrine. There is good reason, that is, to conclude that Congress understood a claim "arising in a foreign country" to be a claim for injury or harm occurring in a foreign country. 28 U. S. C. § 2680(k). This sense of "arising in" was the common usage in state borrowing statutes contemporary with the Act, which operated to determine which State's statute of limitations should apply in cases involving transjurisdictional facts. When the FTCA was passed, the general rule, as set out in various state statutes, was that "a cause of action arising in another jurisdiction, which is barred by the laws of that jurisdiction, will [also] be barred in the domestic courts." 41 A. L. R. 4th 1025, 1029, § 2 (1985). These borrowing *705 statutes were typically restricted by express terms to situations where a cause of action was time barred in the State "where [the] cause of action arose, or accrued, or originated." 75 A. L. R. 203, 211 (1931) (emphasis in original). Critically for present purposes, these variations on the theme of "arising in" were interpreted in tort cases in just the same way that we read the FTCA today. A commentator noted in 1962 that, for the purposes of these borrowing statutes, "[t]he courts unanimously hold that a cause of action sounding in tort arises in the jurisdiction where the last act necessary to establish liability occurred"; i. e., "the jurisdiction in which injury was received." Ester, Borrowing Statutes of Limitation and Conflict of Laws, 15 U. Fla. L. Rev. 33, 47.
There is, moreover, specific reason to believe that using "arising in" as referring to place of harm was central to the object of the foreign country exception. Any tort action in a court of the United States based on the acts of a Government employee causing harm outside the State of the district court in which the action is filed requires a determination of the source of the substantive law that will govern liability. When the FTCA was passed, the dominant principle in choice-of-law analysis for tort cases was lex loci delicti: courts generally applied the law of the place where the injury occurred. See Richards v. United States, 369 U. S., at 11-12 ("The general conflict-of-laws rule, followed by a vast majority of the States, is to apply the law of the place of injury to the substantive rights of the parties" (footnote omitted)); see also Restatement (First) of Conflict of Laws § 379 (1934) (defendant's liability determined by "the law of the place of wrong");[3]id., § 377, Note 1 (place of wrong for *706 torts involving bodily harm is "the place where the harmful force takes effect upon the body" (emphasis in original)); ibid. (same principle for torts of fraud and torts involving harm to property).[4] For a plaintiff injured in a foreign country, then, the presumptive choice in American courts under the traditional rule would have been to apply foreign law to determine the tortfeasor's liability. See, e. g., Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3 (1975) (per curiam) (noting that Texas would apply Cambodian law to wrongful-death action involving explosion in Cambodia of an artillery round manufactured in United States); Thomas v. FMC Corp., 610 F. Supp. 912 (MD Ala. 1985) (applying German law to determine American manufacturer's liability for negligently designing and manufacturing a Howitzer that killed decedent in Germany); Quandt v. Beech Aircraft Corp., 317 F. Supp. 1009 (Del. 1970) (noting that Italian law applies to allegations of negligent manufacture in Kansas that resulted in an airplane crash in Italy); Manos v. Trans World Airlines, 295 F. Supp. 1170 (ND Ill. 1969) (applying Italian law to determine American corporation's liability for negligent manufacture of a plane that crashed in Italy); see also, e. g., Dallas v. Whitney, 118 W. Va. 106, 188 S. E. 766 (1936) (Ohio law applied where blasting operations on a West Virginia highway caused property damage in Ohio); Cameron *707 v. Vandegriff, 53 Ark. 381, 13 S. W. 1092 (1890) (Arkansas law applied where a blasting of a rock in Indian territory inflicted injury on plaintiff in Arkansas).
The application of foreign substantive law exemplified in these cases was, however, what Congress intended to avoid by the foreign country exception. In 1942, the House Committee on the Judiciary considered an early draft of the FTCA that would have exempted all claims "arising in a foreign country in behalf of an alien." H. R. 5373, 77th Cong., 2d Sess., § 303(12). The bill was then revised, at the suggestion of the Attorney General, to omit the last five words. In explaining the amendment to the House Committee on the Judiciary, Assistant Attorney General Shea said that
"[c]laims arising in a foreign country have been exempted from this bill, H. R. 6463, whether or not the claimant is an alien. Since liability is to be determined by the law of the situs of the wrongful act or omission it is wise to restrict the bill to claims arising in this country. This seems desirable because the law of the particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty." Hearings on H. R. 5373 et al. before the House Committee on the Judiciary, 77th Cong., 2d Sess., 35 (1942).
The amended version, which was enacted into law and constitutes the current text of the foreign country exception, 28 U. S. C. § 2680(k), thus codified Congress's "unwilling[ness] to subject the United States to liabilities depending upon the laws of a foreign power." United States v. Spelar, 338 U. S. 217, 221 (1949). See also Sami v. United States, 617 F. 2d, at 762 (noting Spelar's explanation but attempting to recast the object behind the foreign country exception); Leaf v. United States, 588 F. 2d 733, 736, n. 3 (CA9 1978).
The object being to avoid application of substantive foreign law, Congress evidently used the modifier "arising in a foreign country" to refer to claims based on foreign harm or *708 injury, the fact that would trigger application of foreign law to determine liability. That object, addressed by the quoted phrase, would obviously have been thwarted, however, by applying the headquarters doctrine, for that doctrine would have displaced the exception by recasting claims of foreign injury as claims not arising in a foreign country because some planning or negligence at domestic headquarters was their cause.[5] And that, in turn, would have resulted in applying foreign law of the place of injury, in accordance with the choice-of-law rule of the headquarters jurisdiction.
Nor, as a practical matter, can it be said that the headquarters doctrine has outgrown its tension with the exception. It is true that the traditional approach to choice of substantive tort law has lost favor, Simson, The Choice-of-Law Revolution in the United States: Notes on Rereading Von Mehren, 36 Cornell Int'l L. J. 125 (2002) ("The traditional methodology of place of wrong . . . has receded in importance, and new approaches and concepts such as governmental interest analysis, most significant relationship, and better rule of law have taken over center stage" (footnotes omitted)).[6]*709 But a good many States still employ essentially the same choice-of-law analysis in tort cases that the First Restatement exemplified. Symeonides, Choice of Law in the American Courts, 51 Am. J. Comp. L. 1, 4-5 (2003) ("Ten states continue to adhere to the traditional method in tort conflicts"); see, e. g., Raskin v. Allison, 30 Kan. App. 2d 1240, 1242, 1241, 57 P. 3d 30, 32 (2002) (under "traditional choice of law principles largely reflected in the original Restatement," Mexican law applied to boating accident in Mexican waters because "the injuries were sustained in Mexican waters").
Equally to the point is that in at least some cases that the Court of Appeals's approach would treat as arising at headquarters, not the foreign country, even the later methodologies of choice point to the application of foreign law. The Second Restatement itself, encouraging the general shift toward using flexible balancing analysis to inform choice of law,[7] includes a default rule for tort cases rooted in the traditional approach: "[i]n an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless . . . some other state has a more significant relationship . . . to the occurrence and the parties." Restatement 2d § 146; see also id., Comment e ("On occasion, conduct and personal injury will occur in different states. In such instances, the local law of the state of injury will usually be applied to determine most issues involving the tort"). In practice, then, the new dispensation frequently leads to the traditional application of the *710 law of the jurisdiction of injury. See, e.g., Dorman v. Emerson Elec. Co., 23 F. 3d 1354 (CA8 1994) (applying Canadian law where negligent saw design in Missouri caused injury in Canada); Bing v. Halstead, 495 F. Supp. 517 (SDNY 1980) (applying Costa Rican law where letter written and mailed in Arizona caused mental distress in Costa Rica); McKinnon v. F. H. Morgan & Co., 170 Vt. 422, 750 A. 2d 1026 (2000) (applying Canadian law where a defective bicycle sold in Vermont caused injuries in Quebec).
In sum, current flexibility in choice-of-law methodology gives no assurance against applying foreign substantive law if federal courts follow headquarters doctrine to assume jurisdiction over tort claims against the Government for foreign harm. Based on the experience just noted, the expectation is that application of the headquarters doctrine would in fact result in a substantial number of cases applying the very foreign law the foreign country exception was meant to avoid.[8]
Before concluding that headquarters analysis should have no part in applying the foreign country exception, however, *711 a word is needed to answer an argument for selective application of headquarters doctrine, that it ought to be permitted when a State's choice-of-law approach would not apply the foreign law of place of injury. See In re "Agent Orange" Product Liability Litigation, 580 F. Supp. 1242, 1254 (EDNY 1984) (noting that the purpose of the exception did not apply to the litigation at hand because foreign law was not implicated). The point would be well taken, of course, if Congress had written the exception to apply when foreign law would be applied. But that is not what Congress said. Its provision of an exception when a claim arises in a foreign country was written at a time when the phrase "arising in" was used in state statutes to express the position that a claim arises where the harm occurs; and the odds are that Congress meant simply this when it used the "arising in" language.[9] Finally, even if it were not a stretch to equate "arising in a foreign country" with "implicating foreign law," the result of accepting headquarters analysis for foreign injury cases in which no application of foreign law would ensue would be a scheme of federal jurisdiction that would vary from State to State, benefiting or penalizing plaintiffs accordingly. The idea that Congress would have intended any *712 such jurisdictional variety is too implausible to drive the analysis to the point of grafting even a selective headquarters exception onto the foreign country exception itself. We therefore hold that the FTCA's foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.
III
Alvarez has also brought an action under the ATS against petitioner Sosa, who argues (as does the United States supporting him) that there is no relief under the ATS because the statute does no more than vest federal courts with jurisdiction, neither creating nor authorizing the courts to recognize any particular right of action without further congressional action. Although we agree the statute is in terms only jurisdictional, we think that at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law. We do not believe, however, that the limited, implicit sanction to entertain the handful of international law cum common law claims understood in 1789 should be taken as authority to recognize the right of action asserted by Alvarez here.
A
Judge Friendly called the ATS a "legal Lohengrin," IIT v. Vencap, Ltd., 519 F. 2d 1001, 1015 (CA2 1975); "no one seems to know whence it came," ibid., and for over 170 years after its enactment it provided jurisdiction in only one case. The first Congress passed it as part of the Judiciary Act of 1789, in providing that the new federal district courts "shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the *713 law of nations or a treaty of the United States." Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77.[10]
The parties and amici here advance radically different historical interpretations of this terse provision. Alvarez says that the ATS was intended not simply as a jurisdictional grant, but as authority for the creation of a new cause of action for torts in violation of international law. We think that reading is implausible. As enacted in 1789, the ATS gave the district courts "cognizance" of certain causes of action, and the term bespoke a grant of jurisdiction, not power to mold substantive law. See, e. g., The Federalist No. 81, pp. 447, 451 (J. Cooke ed. 1961) (A. Hamilton) (using "jurisdiction" interchangeably with "cognizance"). The fact that the ATS was placed in § 9 of the Judiciary Act, a statute otherwise exclusively concerned with federal-court jurisdiction, is itself support for its strictly jurisdictional nature. Nor would the distinction between jurisdiction and cause of action have been elided by the drafters of the Act or those who voted on it. As Fisher Ames put it, "there is a substantial difference between the jurisdiction of the courts and the rules of decision." 1 Annals of Cong. 807 (Gales ed. 1834). It is unsurprising, then, that an authority on the historical origins of the ATS has written that "section 1350 clearly does not create a statutory cause of action," and that the contrary suggestion is "simply frivolous." Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 479, 480 (1986) (hereinafter Casto, Law of Nations); Cf. Dodge, The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context, 42 Va. J. Int'l L. 687, 689 (2002). *714 In sum, we think the statute was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject.
But holding the ATS jurisdictional raises a new question, this one about the interaction between the ATS at the time of its enactment and the ambient law of the era. Sosa would have it that the ATS was stillborn because there could be no claim for relief without a further statute expressly authorizing adoption of causes of action. Amici professors of federal jurisdiction and legal history take a different tack, that federal courts could entertain claims once the jurisdictional grant was on the books, because torts in violation of the law of nations would have been recognized within the common law of the time. Brief for Vikram Amar et al. as Amici Curiae. We think history and practice give the edge to this latter position.
1
"When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement." Ware v. Hylton, 3 Dall. 199, 281 (1796) (Wilson, J.). In the years of the early Republic, this law of nations comprised two principal elements, the first covering the general norms governing the behavior of national states with each other: "the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights," E. de Vattel, Law of Nations, Preliminaries § 3 (J. Chitty et al. transl. and ed. 1883) (hereinafter Vattel) (footnote omitted), or "that code of public instruction which defines the rights and prescribes the duties of nations, in their intercourse with each other," 1 James Kent Commentaries *1. This aspect of the law of nations thus occupied the executive and legislative domains, not the judicial. See 4 W. Blackstone, Commentaries on the Laws of England 68 (1769) (hereinafter Commentaries) ("[O]ffences against" the law of nations are "principally incident to whole states or nations").
*715 The law of nations included a second, more pedestrian element, however, that did fall within the judicial sphere, as a body of judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor. To Blackstone, the law of nations in this sense was implicated "in mercantile questions, such as bills of exchange and the like; in all marine causes, relating to freight, average, demurrage, insurances, bottomry . . .; [and] in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills." Id., at 67. The law merchant emerged from the customary practices of international traders and admiralty required its own transnational regulation. And it was the law of nations in this sense that our precursors spoke about when the Court explained the status of coast fishing vessels in wartime grew from "ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law. . . ." The Paquete Habana, 175 U. S. 677, 686 (1900).
There was, finally, a sphere in which these rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships. Blackstone referred to it when he mentioned three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy. 4 Commentaries 68. An assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed could rise to an issue of war. See Vattel 463-464. It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the ATS with its reference to tort.
2
Before there was any ATS, a distinctly American preoccupation with these hybrid international norms had taken *716 shape owing to the distribution of political power from independence through the period of confederation. The Continental Congress was hamstrung by its inability to "cause infractions of treaties, or of the law of nations to be punished," J. Madison, Journal of the Constitutional Convention 60 (E. Scott ed. 1893), and in 1781 the Congress implored the States to vindicate rights under the law of nations. In words that echo Blackstone, the congressional resolution called upon state legislatures to "provide expeditious, exemplary and adequate punishment" for "the violation of safe conducts or passports, . . . of hostility against such as are in amity . . . with the United States, . . . infractions of the immunities of ambassadors and other public ministers . . . [and] "infractions of treaties and conventions to which the United States are a party." 21 Journals of the Continental Congress 1136-1137 (G. Hunt ed. 1912) (hereinafter Journals of the Continental Congress). The resolution recommended that the States "authorise suits . . . for damages by the party injured, and for compensation to the United States for damage sustained by them from an injury done to a foreign power by a citizen." Id., at 1137; cf. Vattel 463-464 ("Whoever offends . . . a public minister . . . should be punished . . ., and . . . the state should, at the expense of the delinquent, give full satisfaction to the sovereign who has been offended in the person of his minister"). Apparently only one State acted upon the recommendation, see Public Records of the State of Connecticut, 1782, pp. 82, 83 (L. Larabee ed. 1982) (1942 compilation, exact date of Act unknown), but Congress had done what it could to signal a commitment to enforce the law of nations.
Appreciation of the Continental Congress's incapacity to deal with this class of cases was intensified by the so-called Marbois incident of May 1784, in which a French adventurer, De Longchamps, verbally and physically assaulted the Secretary of the French Legion in Philadelphia. See Respublica *717 v. De Longchamps, 1 Dall. 111 (O. T. Phila. 1784).[11] Congress called again for state legislation addressing such matters, and concern over the inadequate vindication of the law of nations persisted through the time of the Constitutional Convention. See 1 Records of the Federal Convention of 1787, p. 25 (M. Farrand ed. 1911) (speech of J. Randolph). During the Convention itself, in fact, a New York City constable produced a reprise of the Marbois affair and Secretary Jay reported to Congress on the Dutch Ambassador's protest, with the explanation that "`the federal government does not appear . . . to be vested with any judicial Powers competent to the Cognizance and Judgment of such Cases.'" Casto, Law of Nations 494, and n. 152.
The Framers responded by vesting the Supreme Court with original jurisdiction over "all Cases affecting Ambassadors, other public ministers and Consuls." U. S. Const., Art. III, § 2, and the First Congress followed through. The Judiciary Act reinforced this Court's original jurisdiction over suits brought by diplomats, see 1 Stat. 80, ch. 20, § 13, created alienage jurisdiction, § 11, and, of course, included the ATS, § 9. See generally Randall, Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort Statute, 18 N. Y. U. J. Int'l L. & Pol. 1, 15-21 (1985) (hereinafter *718 Randall) (discussing foreign affairs implications of the Judiciary Act); W. Casto, The Supreme Court in the Early Republic 27-53 (1995).
3
Although Congress modified the draft of what became the Judiciary Act, see generally Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49 (1923), it made hardly any changes to the provisions on aliens, including what became the ATS, see Casto, Law of Nations 498. There is no record of congressional discussion about private actions that might be subject to the jurisdictional provision, or about any need for further legislation to create private remedies; there is no record even of debate on the section. Given the poverty of drafting history, modern commentators have necessarily concentrated on the text, remarking on the innovative use of the word "tort," see, e. g., Sweeney, A Tort only in Violation of the Law of Nations, 18 Hastings Int'l & Comp. L. Rev. 445 (1995) (arguing that "tort" refers to the law of prize), and the statute's mixture of terms expansive ("all suits"), see, e. g., Casto, Law of Nations 500, and restrictive ("for a tort only"), see, e. g., Randall 28-31 (limiting suits to torts, as opposed to commercial actions, especially by British plaintiffs).[12] The historical scholarship has also placed the ATS within the competition between federalist and antifederalist forces over the national role in foreign relations. Id., at 22-23 (none