[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1874 Introduced in Senate (IS)]








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.

    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.''.
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