II 

109TH CONGRESS 

1ST SESSION 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Alien Tort Statute Re5 form Act’’. 

6 SEC. 2. SUITS BY ALIENS. 

7 Section 1350 of title 28, United States Code, is 

8 amended to read as follows: 
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1 ‘‘§ 1350. Alien’s action for tort 

2 ‘‘(a) JURISDICTION OF DISTRICT COURTS.—The dis3 trict courts shall have original and exclusive jurisdiction 

4 of any civil action brought by an alien asserting a claim 

5 of torture, extrajudicial killing, genocide, piracy, slavery, 

6 or slave trading if a defendant is a direct participant act7 ing with specific intent to commit the alleged tort. The 

8 district courts shall not have jurisdiction over such civil 

9 suits brought by an alien if a foreign state is responsible 

10 for committing the tort in question within its sovereign 

11 territory. 

12 ‘‘(b) DEFINITIONS.—For the purposes of this section: 

13 ‘‘(1) DEFENDANT.—The term ‘defendant’ 

14 means any person subject to the jurisdiction of the 

15 district courts of the United States, including— 

16 ‘‘(A) a United States citizen; 

17 ‘‘(B) a natural person who is a permanent 

18 resident of the United States; 

19 ‘‘(C) a natural person who resides in the 

20 United States; or 

21 ‘‘(D) a partnership, corporation, or other 

22 legal entity organized under the laws of the 

23 United States or of a foreign state. 

24 ‘‘(2) FOREIGN STATE.—The term ‘foreign state’ 

25 has the meaning given that term in section 1603 of 

26 title 28, United States Code. 
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1 ‘‘(3) EXTRAJUDICIAL KILLING.—The term 

2 ‘extrajudicial killing’— 

3 ‘‘(A) means a deliberated killing, which— 

4 ‘‘(i) notwithstanding the jurisdictional 

5 limitations referred to in subsection (a), is 

6 carried out by an individual under actual 

7 or apparent authority, or color of law, of 

8 any foreign state; 

9 ‘‘(ii) is directed against another indi10 vidual in the offender’s custody or physical 

11 control; and 

12 ‘‘(iii) is not authorized by a previous 

13 judgment pronounced by a regularly con14 stituted court affording all the judicial 

15 guarantees which are recognized as indis16 pensable by civilized peoples; and 

17 ‘‘(B) does not include any such killing 

18 that, under international law, is lawfully carried 

19 out under the authority of a foreign state. 

20 ‘‘(4) GENOCIDE.—The term ‘genocide’ means, 

21 whether in time of peace or in time of war, an act 

22 carried out, or an attempt to carry out an act, with 

23 the specific intent to destroy, in whole or in substan24 tial part, a national, ethnic, racial, or religious group 

25 as such, which— 
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1 ‘‘(A) kills members of that group; 

2 ‘‘(B) causes serious bodily injury to mem3 bers of that group; 

4 ‘‘(C) causes the permanent impairment of 

5 the mental faculties of members of the group 

6 through drugs, torture, or similar techniques; 

7 ‘‘(D) subjects the group to conditions of 

8 life that are intended to cause the physical de9 struction of the group in whole or in part; 

10 ‘‘(E) imposes measures intended to prevent 

11 births within the group; or 

12 ‘‘(F) transfers by force children of the 

13 group to another group. 

14 ‘‘(5) PIRACY.—The term ‘piracy’ means— 

15 ‘‘(A) any illegal acts of violence or deten16 tion, or any act of depredation, committed for 

17 private ends by the crew or the passengers of 

18 a private ship or a private aircraft, and di19 rected— 

20 ‘‘(i) on the high seas, against another 

21 ship or aircraft, or against persons or 

22 property on board such ship or aircraft; or 

23 ‘‘(ii) against a ship, aircraft, persons, 

24 or property in a place outside the jurisdic25 tion of any country; 
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1 ‘‘(B) any act of voluntary participation in 

2 the operations of a ship or of an aircraft with 

3 knowledge of facts making it a pirate ship or 

4 aircraft; or 

5 ‘‘(C) any act of inciting or of intentionally 

6 facilitating an act described in subparagraph 

7 (A) or (B). 

8 ‘‘(6) SLAVE TRADING.—The term ‘slave trad9 ing’ includes— 

10 ‘‘(A) all acts involved in the capture, acqui11 sition, or disposal of a person with intent to re12 duce such person to slavery; 

13 ‘‘(B) all acts involved in the acquisition of 

14 a slave with a view to selling or exchanging 

15 such slave; 

16 ‘‘(C) all acts of disposal by sale or ex17 change of a slave acquired with a view to being 

18 sold or exchanged; and 

19 ‘‘(D) in general, every act of trade or 

20 transport of slaves. 

21 ‘‘(7) SLAVERY.—The term ‘slavery’ means the 

22 status or condition of a person over whom any or all 

23 of the powers attaching to the right of ownership are 

24 exercised. 

25 ‘‘(8) TORTURE.— 
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1 ‘‘(A) IN GENERAL.—Notwithstanding the 

2 jurisdictional limitations referred to in sub3 section (a), the term ‘torture’ means any act, 

4 carried out by an individual under actual or ap5 parent authority, or color of law, of any foreign 

6 state, directed against another individual in the 

7 offender’s custody or physical control, by which 

8 severe pain or suffering (other than pain or suf9 fering arising only from or inherent in, or inci10 dental to, lawful sanctions), whether physical or 

11 mental, is intentionally inflicted on that indi12 vidual for such purposes as obtaining from that 

13 individual or a third person information or a 

14 confession, punishing that individual for an act 

15 that individual or a third person has committed 

16 or is suspected of having committed, intimi17 dating or coercing that individual or a third 

18 person, or for any reason based on discrimina19 tion of any kind. 

20 ‘‘(B) MENTAL PAIN OR SUFFERING.—In 

21 subparagraph (A), mental pain or suffering re22 fers to prolonged mental harm caused by or re23 sulting from— 
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1 ‘‘(i) the intentional infliction or 

2 threatened infliction of severe physical pain 

3 or suffering; 

4 ‘‘(ii) the administration or application, 

5 or threatened administration or applica6 tion, of mind altering substances, or other 

7 procedures calculated to disrupt profoundly 

8 the senses or the personality; 

9 ‘‘(iii) the threat of imminent death; or 

10 ‘‘(iv) the threat that another indi11 vidual will imminently be subjected to 

12 death, severe physical pain or suffering, or 

13 the administration or application of mind 

14 altering substances or other procedures 

15 calculated to disrupt profoundly the senses 

16 or personality. 

17 ‘‘(c) LIABILITY FOR DAMAGES.—Any defendant who 

18 is a direct participant acting with specific intent to commit 

19 a tort referred to in subsection (a) against an alien shall 

20 be liable for damages to that alien or to any person who 

21 may be a claimant in an action for the wrongful death 

22 of that alien. 

23 ‘‘(d) EXHAUSTION OF REMEDIES.—A district court 

24 shall abstain from the exercise of jurisdiction over a civil 

25 action described in subsection (a) if the claimant has not 
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1 exhausted adequate and available remedies in the place in 

2 which the injury occurred. Adequate and available rem3 edies include those available through local courts, claims 

4 tribunals, and similar legal processes. 

5 ‘‘(e) FOREIGN POLICY INTERESTS OF THE UNITED

6 STATES.—No court in the United States shall proceed in 

7 considering the merits of a claim under subsection (a) if 

8 the President, or a designee of the President, adequately 

9 certifies to the court in writing that such exercise of juris10 diction will have a negative impact on the foreign policy 

11 interests of the United States. 

12 ‘‘(f) PROCEDURAL REQUIREMENTS.— 

13 ‘‘(1) SPECIFICITY.—In any action brought 

14 under this section, the complaint shall state with 

15 particularity specific facts that— 

16 ‘‘(A) describe each tort alleged to have 

17 been committed and demonstrate the reason or 

18 reasons why the tort action may be brought 

19 under this section, provided that if an allegation 

20 is made on information and belief, the com21 plaint shall state with particularity all facts on 

22 which that belief is formed; and 

23 ‘‘(B) demonstrate that the defendant had 

24 the specific intent to commit the tort alleged to 

25 have been committed. 
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1 ‘‘(2) MOTION TO DISMISS.—In any action 

2 brought under this section, the court shall, on the 

3 motion of any defendant, dismiss the complaint if 

4 the requirements of subparagraphs (A) and (B) of 

5 paragraph (1) are not met. 

6 ‘‘(3) STAY OF DISCOVERY.—In any action 

7 brought under this section, all discovery related to 

8 the merits of the claim and other proceedings shall 

9 be stayed during the pendency of any motion to dis10 miss, unless the court finds upon the motion of any 

11 party that particularized discovery is necessary to 

12 preserve evidence or to prevent undue prejudice to 

13 that party. 

14 ‘‘(4) PLAINTIFF IDENTITY.— 

15 ‘‘(A) REQUIREMENT.—Subject to subpara16 graph (B), in any action brought under this 

17 section, the first and last names of all plaintiffs 

18 shall be disclosed in the complaint filed with the 

19 court. 

20 ‘‘(B) EXCEPTION.—A court may permit an 

21 anonymous filing of a complaint if a plaintiff’s 

22 life or safety would be endangered by publicly 

23 disclosing the plaintiff’s identity. 
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1 ‘‘(g) FEES.—Contingency fee arrangements are pro2 hibited in any action brought under the jurisdiction pro3 vided in this section. 

4 ‘‘(h) STATUTE OF LIMITATIONS.—No action shall be 

5 maintained under this section unless it is commenced not 

6 later than 10 years from the date the injury occurred. 

7 ‘‘(i) APPLICATION OF OTHER LAWS.—Nothing in 

8 this section may be construed to waive or modify the appli9 cation of any provision of the Class Action Fairness Act 

10 of 2005 (Public Law 109–2; 119 Stat. 4) and any amend11 ment made by that Act, or of title 28, United States Code, 

12 to any class action law suit brought under this section.’’. 

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