Appeals from the United States District Courtfor the Central District of CaliforniaJohn G. Davies, District Judge, PresidingArgued and SubmittedJuly 8, 1996--Portland, OregonFiled September 24, 1996Amended February 19, 1997Before: Alfred T. Goodwin and Mary M. Schroeder,Circuit Judges, and Samuel P. King*, District Judge.Opinion by Judge GoodwinSUMMARY The summary, which does not constitute a part of the opinion of the court, is copyrighted C 1994 by Barclays Law Publishers.
_____________________________Torts/Personal InjuryThe court of appeals affirmed a judgment of the districtcourt in part and reversed in part. The court held that the Tor-ture Victim Protection Act (TVPA) applies to torts committedprior to its enactment.In April 1990, the United States Drug Enforcement Agency(DEA) orchestrated the abduction and torture of appellee Dr.Humberto Alvarez-Machain, and transported him from Mex-ico to the United States for prosecution for the murder of aDEA agent in Mexico. The criminal case ended when the dis-trict court granted Alvarez-Machain's motion for judgment ofacquittal.Alvarez-Machain filed an action against appellant UnitedStates and various government agents under 42 U.S.C.S 1983, the Federal Tort Claims Act (FTCA), and other fed-eral statutes.The district court granted a defense motion to dismiss inpart, ruling that Alvarez-Machain's constitutional claims werebarred because they were based on activities by Mexicannationals that had occurred in Mexico, and that a claim underthe TVPA was barred because the statute was enacted afterthe alleged torture. The court refused to dismiss Alvarez-Machain's tort claims as barred by the statute of limitations,and denied the motion with respect to claims of qualifiedimmunity. Both sides appealed.On appeal, the government contended that Alvarez-Machain's FTCA claims were barred by the statute of limita-tion because he failed to file an administrative claim until July1993--three years after his alleged abduction and torture.Alvarez-Machain asserted that application of the TVPAwould not have an impermissible retroactive effect becausethe defendants had a legal duty to refrain from torture beforethe statute's passage.[1] All the torts alleged by Alvarez-Machain accrued morethan three years before he filed his administrative claim andso would normally have been barred. [2] However, his claimsof false arrest, false imprisonment, and negligent infliction ofemotional distress were not barred because they did notaccrue until his acquittal in the criminal trial. If these claimshad been litigated while his criminal trial was pending, theirresolution would have implicated his guilt or innocence of thecharges.[3] Alvarez-Machain's other tort claims did not necessarilyimplicate the validity of the criminal charges. Nontheless, thiswas an appropriate case for application of the doctrine ofequitable tolling of the statute of limitations. [4] Nothing inthe FTCA indicates that Congress intended for equitable toll-ing not to apply.[5] Alvarez-Machain was incarcerated for over two years,facing criminal charges in a foreign country whose languagehe did not understand. His life was at stake, and his caseinvolved numerous complex issues of first impression--several of which were ultimately decided by the SupremeCourt. Had he filed an administrative claim prior to acquittal,many of his claims would have been dismissed because theyimplicated the validity of the criminal charges. Alvarez-Machain's case constituted that rare situation where equitabletolling was demanded by sound legal principles as well as theinterests of justice.[6] Pretrial detainees possess a clearly established right tobe free from punishment. The Eighth Amendment proscribessanctions that are so totally without penological justificationthat it results in the gratuitous infliction of suffering.[7] The complaint revealed that the DEA agent defendantsthreatened Alvarez-Machain during interrogation; withheldfood; incarcerated him under a false name, making it impossi-ble for the government to respond to inquiries about hiswhereabouts; and denied him adequate medical attention. Ifproven, each of these allegations served to create an atmo-sphere of fear and isolation, imposing "gratuitous suffering."The deprivation of food and medical attention alone couldhave served to sustain a claim under the Due Process Clause.[8] The TVPA is silent with regard to whether Congressintended for it to apply retroactively. Absent clear congressio-nal intent, there is a strong presumption against retroactivity.However, an application does not have retroactive effectunless it would impair rights a party possessed when he acted,increase a party's liability for past conduct, or impose newduties with respect to transactions already completed.[9] The TVPA did not impose new duties or liabilities onthe defendants. Torture has long been condemned and prohib-ited by international law. Aliens have had the right to adjudi-cate torture claims in federal courts since the passage of theAlien Tort Claims Act (ATCA) in 1789. [10] The ATCAallows only aliens to bring actions in United States courts forextraterritorial torture; the TVPA allows aliens and citizens tobring such claims. Citizens have always been able to bringclaims for extraterritorial torture in state courts. The TVPAmerely allows citizens to bring those claims in federal court.
_____________________________COUNSEL Paul Hoffman, ACLU Foundation of Southern California, LosAngeles, California, for Alvarez-Machain.Robert M. Loeb, Appellate Staff, Civil Division, Departmentof Justice, Washington, D.C., for United States of America.Michael L. Martinez, Holland & Knight, Washington, D.C.,for Berellez, Waters, Gruden & Lawn.Gary S. Lincenberg and Thomas V. Reichert, Bird, Marella,Boxer Wolpert & Matz, Los Angeles, California, for AntonioGarate-Bustamante; Charles S. Leeper and Karl N. Metzner,Spriggs & Hollingsworth, Washington, D.C., for FranciscoSosa.Peter Goldberger, Ardmore, Pennsylvania, for amicus HumanRights Watch; Harold Hongju Koh, Allard K. Lowenstein,International Human Rights Clinic, New Haven, Connecticut,for amicus Lawyers Committee for Human Rights, et al.
_____________________________OPINION GOODWIN, Circuit Judge:In April 1990 the United States Drug Enforcement Agency(DEA) orchestrated the abduction and torture of Dr. Alvarez-Machain, a Mexican doctor, and transported him to the UnitedStates for prosecution for the murder of a DEA agent in Mex-ico. The criminal case ended when the district court granteda judgment of acquittal.Alvarez-Machain returned to Mexico and filed this civilaction against the United States and its agents under 42U.S.C. S 1983 and other federal statutes. His claims includedthe violation of constitutional rights as well as ten torts, rang-ing from torture to false imprisonment. Defendants moved todismiss the complaint, and the district court granted themotion in part and denied it in part.The court dismissed the constitutional claims that werebased upon activities occurring in Mexico. The court also dis-missed a claim brought under the Torture Victim ProtectionAct (TVPA). The court refused to dismiss the tort claims asbarred by the statute of limitations, and denied the motionbased upon the defense of qualified immunity asserted bydefendants accused of wrongful conduct within the UnitedStates. We affirm the district court in its judgment withrespect to all claims other than the TVPA claim. The districtcourt held that it could not apply the TVPA to defendant'sactions because the TVPA was enacted subsequent to the per-tinent events. Because we hold that application of the TVPAto past acts would not have a retroactive effect, we reverse thedistrict court on this ruling.FACTSOn April 2, 1990, a team of men alleged to be hired byDEA agents working in Mexico, abducted Dr. Alvarez-Machain from his office in Guadalajara. They blindfoldedhim, transported him to an unknown location, and proceededto beat him and subject him to electrical shocks. His kidnap-pers injected him with unknown chemical substances causingnausea and dizziness, denied him food and water, and forcedhim to lie face down on the floor for a long period of time.His life was repeatedly threatened, as well as the safety of hisfamily. After enduring this torment for several hours, he wasdelivered into the hands of the DEA in El Paso, Texas.Defendant Antonio Garate-Bustamante coordinated and ledthe activities in Mexico, and defendant Francisco Sosa partici-pated in the events. Both were working as the paid agents ofthe DEA, who undertook to bring Alvarez-Machain to theUnited States in order to prosecute him for his alleged role inthe murder of DEA agent Enrique Camarena.Once in El Paso, defendant Garate-Bustamante and severalDEA agents interrogated Alvarez-Machain. The DEA agentsthreatened Alvarez-Machain during the interrogation, deniedhim food and adequate medical attention, and at one pointforced him to stand naked and be photographed. In El Paso,the DEA processed Alvarez-Machain under an assumed nameor names, despite knowing his true identity, frustrating effortsby his family members and the Mexican government to learnhis whereabouts.On April 10, 1990, Alvarez-Machain was transferred to LosAngeles and arraigned on charges of murder before UnitedStates District Judge Edward Rafeedie. Subsequently, JudgeRafeedie dismissed the charges, concluding that the courtlacked jurisdiction over Alvarez-Machain because his abduc-tion violated the extradition treaty between the United Statesand Mexico. United States v. Caro-Quintero, 745 F. Supp.599, 601 (C.D. Cal. 1990), aff'd sub nom United States v.Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991). TheSupreme Court reversed the dismissal, however, and Alvarez-Machain was forced to stand trial. United States v. Alvarez-Machain,
504 U.S. 655
(1992). As noted, the prosecutionended with a judgment of acquittal on December 14, 1992.After the acquittal, Judge Rafeedie revealed that the govern-ment had withheld potentially exculpatory evidence from thedefense, in addition to failing to take him promptly before amagistrate after he reached United States territory underarrest.In addition to the cases consolidated in this appeal,Alvarez-Machain filed an administrative claim against theUnited States under the Federal Tort Claims Act (FTCA), 28U.S.C. S 2401(b). He added the United States as a defendantin January, 1994, after the six-month waiting period requiredby statute had expired. Against all defendants he allegedclaims for kidnapping; torture; cruel and inhuman and degrad-ing treatment or punishment; prolonged arbitrary detention;assault and battery; false imprisonment; intentional inflictionof emotional distress; false arrest; negligent employment ofpublic employees and agents; negligent infliction of emo-tional distress; and violations of the Fourth, Fifth and EighthAmendments to the United States Constitution. Againstdefendants Garate-Bustamante and Sosa, Alvarez-Machainalso alleged a claim under the Torture Victim Protection Act(TVPA).1In dismissing the constitutional claims arising out of con-duct in Mexico, the district court held that the United StatesConstitution does not protect Mexican nationals in Mexicofrom wrongs committed against them by United States gov-ernment agents engaged in extraterritorial law enforcement.The district court allowed the action to proceed on conduct byDEA agents acting within the United States, however, holdingthat the alleged conduct, if proved, clearly violated estab-lished constitutional rights. Accordingly, as noted, the DEAagents who participated in the El Paso activities were denieddismissal on qualified immunity grounds, and they haveappealed that ruling.The court denied Defendants Garate-Bustamante's andSosa's motions for dismissal as to all but the TVPA claim,holding that more discovery was necessary to determine theexact relationship between the Mexican defendants and theUnited States before a determination could be made whetherthe defense of qualified immunity was available, or whetherthe United States could be substituted as the defendant on thetort claims based on their conduct in the United States. As forthe TVPA, the district court declined to apply it to claims oftorture occurring prior to the enactment of the statute, andAlvarez-Machain appeals that ruling.Finally, with regard to the United States, the district courtdenied its motion to dismiss the tort claims as barred by thestatute of limitations. The court recognized that the statute oflimitations raised a potential problem for Alvarez-Machain,but believed more discovery might reveal a basis for equitabletolling of the statute because of the lengthy duration of theplaintiff's incarceration, including his being held incommuni-cado, and otherwise prevented from timely protecting his civilrights while defending the murder charges against him.These rulings are the subject of the present interlocutoryappeals.2DISCUSSIONI. Statute of Limitations--No. 95-55768The government argues that Alvarez-Machain's FTCAclaims are barred by the statute of limitations because hefailed to file an administrative claim until July 1993--threeyears after his alleged abduction and torture.The FTCA provides: A tort claim against the United States shall be for- ever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . . .28 U.S.C. S 2401(b). The key question here is the date ofaccrual for Alvarez-Machain's claims.[1] Generally a claim accrues when the plaintiff knows, orin the exercise of reasonable diligence should know, of boththe injury and its cause. Dyniewicz v. United States, 742 F.2d484, 486 (9th Cir. 1984). Under our case law, all the tortsalleged by Alvarez-Machain accrued more than three yearsbefore he filed his administrative claim and so normallywould be barred.[2] In this case, however, Alvarez-Machain's claims offalse arrest, false imprisonment, and negligent infliction ofemotional distress are not barred by the statute because theydid not accrue until after his acquittal in his criminal trial. InHeck v. Humphrey,
512 U.S. 477
(1994), the Supreme Courtheld that those S 1983 claims of state prisoners which impli-cated the validity of their convictions would not accrue untiltheir conviction was reversed. Here, Alvarez-Machain allegesthe torts of false arrest, false imprisonment, and negligentinfliction of emotional distress. If these claims had been liti-gated while his criminal trial was pending, their resolutionwould have implicated his guilt or innocence on the chargesagainst him. See Smithart v. Towery, 79 F.3d 951, 952 (9thCir. 1996) ("There is no question that Heck bars[the plain-tiff's] claims that defendants lacked probable cause to arresthim and brought unfounded criminal charges against him.").Under the reasoning of Heck, therefore, Alvarez-Machain'sclaims for false arrest, false imprisonment, and negligentinfliction of emotional distress did not accrue in this case untilhe was acquitted.[3] Alvarez-Machain's other tort claims do not necessarilyimplicate the validity of his criminal charges. Nonetheless,this is an appropriate case for the application of the doctrineof equitable tolling of the statute of limitations. In addition tothe obvious reasons for its application to claims that could nothave been brought prior to his acquittal, reasons of judicialeconomy counsel against splitting causes of action, and rea-sons of common decency counsel against using governmentalimmunity as a sword instead of a shield in this case.[4] Equitable tolling is available in suits against the UnitedStates absent evidence that Congress intended the contrary.Irwin v. Dept. of Veteran Affairs,
498 U.S. 89, 95
-95 (1990).Nothing in the FTCA indicates that Congress intended forequitable tolling not to apply. Hence, equitable tolling isavailable for FTCA claims in the appropriate circumstances;and the circumstances of this case are highly appropriate fortolling. Federal courts have applied the doctrine of equita- ble tolling in two generally distinct kinds of situa- tions. In the first, the plaintiffs were prevented from asserting their claims by some kind of wrongful con- duct on the part of the defendant. In the second, extraordinary circumstances beyond plaintiffs' con- trol made it impossible to file the claims on time.Seattle Audubon Soc. v. Robertson, 931 F.2d 590, 595 (9thCir. 1991), rev. on other grounds,
503 U.S. 429
(1992). Seealso Capital Tracing, Inc. v. United States, 63 F.3d 859 (9thCir. 1995)(tolling the statute due to a lack of clarity in thelaw).[5] Here, the circumstances of Alvarez-Machain's abduc-tion and subsequent trial warrant the equitable tolling of thestatute of limitations. Alvarez-Machain was incarcerated forover two years, facing criminal charges of the highest gravityin a foreign country whose language he did not understand.His life was at stake, and his case involved numerous, com-plex issues of first impression--several of which were ulti-mately decided by the United States Supreme Court. See, e.g.,United States v. Alvarez-Machain,
504 U.S. 655
(1992);United States v. Verdugo-Urquidez,
494 U.S. 259
(1990).Moreover, as discussed, had he filed an administrative claimprior to obtaining an acquittal, many of his claims would havebeen dismissed because they necessarily implicated the valid-ity of his criminal charges. Heck v. Humphrey,
512 U.S. 477
.Looking at the totality of these circumstances, we concludethat Alvarez-Machain's case constitutes that rare situationwhere equitable tolling is demanded by sound legal principlesas well as the interests of justice. We affirm the denial of thegovernment's motion based on the statute of limitations.II. DEA Agents Qualified Immunity[6] Pre-trial detainees possess a clearly established right tobe free from punishment. Bell v. Wolfish,
441 U.S. 520
, 534-37 (1979). This right is located in the due process clause ofthe Fifth Amendment, but we borrow from Eighth Amend-ment principles in determining the care to be afforded pre-trial detainees. Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.1986). The Eighth Amendment "proscribes . . . sanctions thatare `so totally without penological justification that it resultsin the gratuitous infliction of suffering.' " Hoptowit v. Ray,682 F.2d 1237, 1246 (9th Cir. 1982)(quoting Gregg v. Geor-gia,
428 U.S. 153, 183
(1976)). Convicted prisoners and pre-trial detainees are also entitled to "adequate food, clothing,shelter, sanitation, medical care, and personal safety." Id.[7] The complaint here reveals that the DEA agent defen-dants "threatened" Alvarez-Machain during an interrogationsession in El Paso on April 3, 1990; withheld food throughoutthe interrogation; incarcerated him under a false name, mak-ing it impossible for the United States government to respondto inquiries about his whereabouts from his family or theMexican government; and denied him adequate medical atten-tion. Each of these allegations, if proven, served to create anatmosphere of fear and isolation, imposing "gratuitoussuffering" in violation of Hoptowit. Further, the deprivation offood and medical attention alone could serve to sustain aclaim under the due process clause. Id. Accordingly, the dis-trict court did not err in denying defendants' motion to dis-miss these claims.III. Extraterritorial Application of the Fifth AmendmentAlvarez-Machain argues that the district court erred inholding that the Fifth Amendment due process clause does notprotect aliens from actions taken by the United States abroad.We find it unnecessary to reach this issue. The issue is pre-cluded because, under the instruction of the Supreme Court,in his criminal prosecution, we have already held that theactions taken by United States government agents or theiremployees against Alvarez-Machain in Mexico did not violatedue process. United States v. Alvarez-Machain, 971 F.2d 310(9th Cir. 1992)(on remand from the United States SupremeCourt). There we stated, "Alvarez-Machain's main alternativeargument is that the circumstances of his kidnapping were soshocking that the abduction constituted a denial of due pro-cess. This contention similarly is not supported by the districtcourt's findings." Id. at 311. This adverse finding in the crimi-nal action bars Alvarez-Machain from pressing the issue againin the civil arena. Matthews v. Macanas, 990 F.2d 467 (9thCir. 1993).IV. Torture Victim Protection ActAlvarez-Machain's complaint also included a claim againstdefendants Garate-Bustamante and Sosa under the TortureVictim Protection Act, signed into law on March 12, 1992.The law provides in pertinent part: "An individual who, underactual or apparent authority, or color of law, of any foreignnation--(1) subjects an individual to torture shall, in a civilaction, be liable for damages to that individual; . . .." TVPAS 2 (a), codified in the statutory notes to 28 U.S.C. S 1350.The district court dismissed the TVPA claim, holding thatapplication of the TVPA to the allegations here would havean improper, retroactive effect. Alvarez-Machain argues thatapplication here would not have a retroactive effect becausedefendants had a legal duty to refrain from torture even priorto the TVPA's passage. The two other district courts to haveconsidered the issue agreed with the argument advanced byAlvarez-Machain, see Xuncax v. Gramajo, 886 F. Supp. 162(D. Mass 1995); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189(S.D.N.Y. 1996), but it appears to be an issue of first impres-sion for the Circuit courts.[8] The Torture Victim Protection Act is silent with regardto whether Congress intended for it to apply retroactively.Absent clear Congressional intent, there exists a strong pre-sumption against retroactivity. However, not every applica-tion of a statute to events occurring before its enactmentconstitutes a "retroactive application." An application doesnot have a retroactive effect unless "it would impair rights aparty possessed when he acted, increase a party's liability forpast conduct, or impose new duties with respect to transac-tions already completed." Landgraf v. U.S.I. Film Products,
511 U.S. 244, 280
(1994). Courts regularly apply new statutesto past events when the intervening statute authorizes oraffects the propriety of prospective relief; where the interven-ing statute confers or ousts jurisdiction; or when the interven-ing statute merely changes the procedural landscape. Id. at1501-1502.[9] The Torture Victim Protection Act does not impose newduties or liabilities on defendants. Torture has long been con-demned and prohibited by international law. See, e.g.,Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). Further,aliens have had the right to adjudicate torture claims in ourfederal courts since the passage of the Alien Tort Claim Act(ATCA) in 1789.3Defendants attempt to distinguish the ATCA from theTVPA in three ways, but none warrants a holding that appli-cation of the TVPA to defendants' conduct would have aretroactive effect.First, defendants argue that the ATCA confers jurisdictionon federal courts to hear international law claims, but does notcreate a substantive, federal right like the TVPA. Defendantserr in their description of the ATCA; we have previously heldthat the ATCA has a substantive as well as a jurisdictionalcomponent. In re Estate of Ferdinand Marcos, Human RightsLit., 25 F.3d 1467 (9th Cir. 1994)(Marcos II ), cert. denied 115S.Ct. 934 (1995). Accord Xuncax, 886 F. Supp. 162; Cabiri,921 F. Supp. 1189. In Marcos II we stated, in contrast to section 1331 "which requires that an action `arise under' the laws of the United States, section 1350 does not require that the action `arise under' the law of nations, but only mandates a `vio- lation of the law of nations' in order to create a cause of action. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 779 (D.C. Cir. 1984)(Edwards, J., concur- ring), cert. denied,
470 U.S. 1003
(1985).Id. at 1475. The court further explained,"International lawdoes not require any particular reaction to violations of law.. . . Whether and how the United States wished to react tosuch violations are domestic questions. [Internal quotationmarks and citation omitted.]" Id. See also Filartiga, 630 F.2d876 (holding that claims of torture could be adjudicated underthe ATCA because torture constituted a violation of interna-tional law).Our conclusion in Marcos II is supported by the legislativehistory of the TVPA. The TVPA would establish an unambiguous and modern basis for a cause of action that has been suc- cessfully maintained under an existing law, section 1350 of the Judiciary Act of 1789 (the Alien Tort Claims Act), which permits Federal district courts to hear claims by aliens for torts committed "in viola- tion of the law of nations." . . . Section 1350 has other important uses and should not be replaced. There should also, however, be a clear and specific remedy, not limited to aliens, for torture and extraju- dicial killing.H.R. Rep. (Judiciary Committee) No. 367(I), 102nd Cong.,1st Sess. (1991), reprinted in 1992 U.S.C.C.A.N. 84, 86; seealso S. Rep. (Judiciary Committee) No. 249, 102nd Cong., 1stSess. (1991).[10] Second, defendants argue that the TVPA expands theclass of plaintiffs able to bring claims for torture, and thuscreates new duties. Where the ATCA allows only aliens tobring actions in U.S. courts for extraterritorial torture, theTVPA allows aliens and citizens to bring such claims. Thedefendants' distinction is without significance, however,because citizens have always been able to bring claims forextraterritorial torture in state courts under the transitory tortdoctrine. The TVPA merely allows citizens now to bringthose claims in federal court as well. There is no increase induties or liabilities, and thus no retroactive effect.Third, defendants argue that the TVPA increases liabilitiesby exposing a new class of defendants to personal liability.Under the ATCA, defendants maintain, individuals would notbe held personally liable for acts of torture if, while actingunder the color of foreign authority, they were also workingwithin the scope of employment for the United States. In suchcases, the United States would be substituted as the defendant,and the individuals would escape personal liability. Becauseno substitution is allowed under the TVPA, defendants claimthey are newly burdened with liability they did not havebefore 1992.Defendants postulate a set of circumstances that are tooremote to affect our retroactivity analysis. If courts wererequired to give weight to every hypothetical suggestionadvanced by litigants, few statutes would survive theLandgraff test.V. ConclusionThe judgment of the district court is AFFIRMED insofar asit dismissed the constitutional claims arising out of harms suf-fered by the plaintiff in Mexico; we AFFIRM the denial of thegovernment's defense based on the statute of limitations; andthe denials of motions to dismiss on the basis of qualifiedimmunity. We REVERSE the ruling that the TVPA claimswere barred because application of the statute to events takingplace prior to its enactment would have a retroactive effect.We REMAND the case to the district court for further pro-ceedings.The plaintiff is entitled to costs on appeal.
___________________________FOOTNOTES *Honorable Samuel P. King, United States District Judge for the Dis-trict of Hawaii, sitting by designation.1 Codified in the statutory notes to 28 U.S.C. S 1350.2 In no. 95-55768, the United States appeals the order denying its motionto dismiss the Federal Tort Claims Act causes of action.In no. 95-55464, the DEA defendants appeal the order denying theirmotion to dismiss the constitutional claims for actions taken in the UnitedStates.In no. 95-56121, Alvarez-Machain appeals the dismissal of his constitu-tional claims for actions taken in Mexico, and the dismissal of his claimsunder the TVPA.Garate-Bustamante and Sosa also appealed the orders pertaining to theirmotions for dismissal based on qualified immunity and their motions forsubstitution of the United States as defendant in the tort actions. Theseappeals were dismissed by this court pursuant to Johnson v. Jones, 115 S.Ct. 2151 (1995). Nos. 95-55467 and 95-55469.3 The ATCA provides: "The district courts shall have original jurisdic-tion of any civil action by an alien for a tort only, committed in violationof the law of nations or a treaty of the United States." 28 U.S.C. S 1350.