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January 22, 2004



I'm not an expert in the field, but I understand the Torture Victim Protection Act to be a part of the Alien Tort Claims Act.

Federal Courts are courts of limited jurisdiction, i.e., they cannot hear a case unless they are specifically empowered to do so by the Constitution or by statute.* The ATCA empowers the Federal Courts to hear claims by an "alien for a tort only, committed in violation of the law of nations or a treaty of the United States[.]" Without the ATCA, Federal Courts could not hear these claims.**

A question arose whether the ATCA could be a vehicle by which an alient could bringing a tort claim for torture committed by the US or another government. I believe that certain Courts said, basically, yes it does. The TVPA was introduced in the 1990s to ratify this line of decisions, and confirm that torture does indeed violate the "law of nations" and therefore tort claims seeking recovery for torture could be brought in the Federal Courts.

In other words, the Torture Victim Protection Act. According and the Alien Tort Claims Act are (essentially) one and the same, as suggested by the fact that they are located together in the US Code at 28 USC 1350.


*This is a generalization, and some boring (though important) nuances have been omitted.

**My gut tells me that these claims could not be brought in state court, b/c of Federal preemption or somesuch (I'm likely using the wrong term, for this ain't anywhere near my area of knowledge). My brain (such as it is) has no comment.

Apologies for the typos in the above; feel free to fix them, if you care. I'm still trying to catch-up from my hellish Wednesday.

The RCMP are the federal police. Their range of operation is determined by the federal Criminal Code (the only criminal code in Canada). So I guess they're like the FBI. In some parts of Canada they're also the provincial police, functioning like state troopers. But in Ontario, where the warrants on O'Neill's place were served, they're just the federal police. Today, when asked whether O'Neill is a criminal, Prime Minister Martin said, "Clearly not." Journalists have inferred that there's little chance O'Neill will be charged. Martin also mused aloud re. whether the Security of Information Act is flawed (or doesn't "strike the right balance" between individual freedom and state power) and should be reviewed.

Should add to Paul's comment that, unlike the FBI, the RCMP is a quasi-military in nature.

They've been involved in wrong-doing in the past. I had thought those days were gone, and hope that elements in the force have not been up to something nefarious.

Our security service has also been involved in hijinks in the past. Let's hope they're not involved.

Just a note of appreciation and kudos for the comprehensive and fair job you did on this case, Katherine.

Thanks again for your close follow-up on all this.

I can't believe Alan Dershowitz has the balls to comment on this: ah yes, it's inconvenient that "this guy came back" but now he can "appropriately complain." Why do people keep quoting this man? Hey, if I publish some articles about how murdering babies could be a good thing as long as it's federally authorized, can I be quoted as an expert on child-murder stories?

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