Full opinion text
TABLE OF CONTENTS I. INTRODUCTION .........................................................169 II. FACTUAL BACKGROUND................................................169 A. The Xuncax Complaint: Civil Action No. 91-11564 .......................169 1. The Plaintiffs’ Ordeals..............................................169 a. Teresa Xuncax.................................................169 b. Juan Diego-Francisco...........................................169 c. Juan Doe......................................................170 d. Elizabet Pedro-Pascual..........................................170 e. Margarita Francisco-Marcos.....................................170 f. Francisco Manuel-Mendez.......................................170 g. Juan and Miguel Ruiz^-Gomez ...................................171 h. Jose Alfredo Callejas ...........................................171 2. The Defendant’s Responsibility......................................171 B. The Ortiz Complaint: Civil Action No. 91-11612 .........................173 1. The Plaintiffs Ordeal...............................................173 2. The Defendant’s Responsibility......................................174 III. DISCUSSION.............................................................175 A. Foreign Sovereign Immunities Act......................................175 B. Independent Federal Subject Matter Jurisdiction in Ortiz v. Gramaio, Civil Action No. 91-11612............................................176 1. Torture Victim Protection Act of 1991...............................176 2. Retroactivity.......................................................176 3. Plaintiff Ortiz’s Claim Under TVPA.................................178 C. Independent Federal Subject Matter Jurisdiction Under 28 U.S.C. § 1350 in Xuncax et al. v. Gramajo, Civil Action No. 91-11564 .................178 1. The Scope of § 1350 ...............................................179 a. The Filartiga Approach.........................................179 b. The Domestic Law Alternative Approach.........................181 c. Conclusion.....................................................183 2. Xuncax Plaintiffs’ Claims of Violations of International Law...........184 a. Peremptory Norms of International Law.........................184 b. Claims on Behalf of Third Parties...............................189 c. Statute of Limitations and Venue................................192 D. Independent Federal Subject Matter Jurisdiction Under 28 U.S.C. § 1331.....193 E. Xuncax and Ortiz Plaintiffs’ Municipal Tort Claims.......................194 1. Supplemental Jurisdiction...........................................194 2. Choice of Law.....................................................195 3. Defendant’s Liability Under Guatemalan Law for Wrongful Death, Assault and Battery, False Imprisonment, and Intentional Infliction of Emotional Distress ............................................196 4. Plaintiff Ortiz’s Claim for Defamation................................197 IV. ASSESSMENT OF DAMAGES.............................................197 A. Xuncax Plaintiffs’ Claims Under International Law.......................197 B. Ortiz’s Claims Under the TVPA........................................198 1. Compensatory Damages.............................................198 2. Punitive Damages..................................................199 C. Plaintiffs’ Claims Under Guatemalan Municipal Law......................200 1. Compensatory Damages.............................................200 2. Punitive Damages..................................................201 D. Ortiz’s Defamation Claim Under Kentucky Law..........................202 V. CONCLUSION............................................................202 MEMORANDUM WOODLOCK, District Judge. I. INTRODUCTION Nine expatriate citizens of Guatemala, as plaintiffs in Civil Action No. 91-11564, and Dianna Ortiz, a citizen of the United States, as plaintiff in Civil Action No. 91-11612, have brought separate actions against Hector Gramajo, formerly Guatemala’s Minister of Defense. The plaintiffs seek compensatory and punitive damages for devastating injuries they suffered from conduct of Guatemalan military forces. The plaintiffs allege that the defendant Gramajo bears personal responsibility for the numerous acts of gruesome violence inflicted by military personnel who were under his direct command. The complaints were served upon the defendant while he was in this country attending Harvard University’s Kennedy School of Government. After filing a conclusory pro se answer, the defendant declined to participate further in these proceedings by refusing even to respond to court orders requiring him to furnish a current address for service. Default has been entered against the defendant pursuant to Fed.R.Civ.P. 55(a). The facts alleged and adduced by the plaintiffs’ affidavits stand uncontroverted in light of the default. Thomson v. Wooster, 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105 (1885); see also Pope v. United States, 323 U.S. 1, 12, 65 S.Ct. 16, 22, 89 L.Ed. 3 (1944). The questions presented are (1) whether this Court may render judgment against the defendant and (2) if so, what damage award constitutes a proper measure of the defendant’s legal liability. The several claims of the plaintiffs present complex jurisdictional and factual questions. Answering those questions has been made extraordinarily difficult, because, while plaintiffs’ contentions have been presented with exceptional skill by exceedingly competent counsel, defendant has offered no defense. After extended consideration necessary to explore — without adversarial assistance — the potential defenses available I have concluded that, with the exception of one of the plaintiffs in Civil Action No. 91-11564, this Court has jurisdiction to render judgment for substantial monetary damages. II. FACTUAL BACKGROUND A. The Xuncax Complaint: Civil Action No. 91-11564 1. The Plaintiffs’ Ordeals Plaintiffs Teresa Xuncax, Juan Diego-Francisco, Juan Doe, Elizabet Pedro-Pascual, Margarita Francisco-Marcos, Francisco Manuel-Mendez, Juan Ruiz-Gomez, Miguel Ruiz-Gomez, Jose Alfredo Callejas [the “Xuncax plaintiffs”] are all natives of Guatemala; eight are Kanjobal Indians. All fled the country as a direct result of the abuses inflicted upon them or their family members. All were victimized by the Guatemalan military forces, who ransacked their villages and engaged in brutal and barbarous practices. Some of the plaintiffs were themselves subjected to torture and arbitrary detention; others were forced to watch as their family members were tortured to death or summarily executed; one plaintiff’s father was caused to “disappear.” All of the plaintiffs assert that they have been exiled from their native country and, with record support, that they suffer from severe psychological disorders and disturbances due to the brutal nature of the traumas inflicted upon them. They bring suit to recover compensatory and punitive damages for their various claims against the defendant under international law, United States law, and municipal tort laws. Briefly stated, the respective allegations are as follows: a. Teresa Xuncax: On July 18, 1982, soldiers broke into Xuncax’s house, stripped, bound and masked her husband, who had spent time working in the United States. They beat him and kicked him, dragged him outside and walked him naked through the village with other captured Kanjobal men. Xuncax took her children that afternoon and fled on foot to Mexico. That evening, the soldiers executed Xuncax’s husband. For the next three years, Xuncax and her children lived in refugee camps in Mexico. Settled now in Sacramento, California, Xuncax is afraid to return to Guatemala and has applied for political asylum. b. Juan Diego-Francisco: On July 6, 1982, upon Diego-Francisco’s return from work in the United States, 300 soldiers entered his village, broke into his house, grabbed him, tied him and began to interrogate him. They beat him with their hands and guns and beat his wife as well. For the next fourteen hours, the soldiers took turns interrogating and torturing him, putting him inside thick plastic bags and holding a knife to his head. After finally being released, he left for Mexico that same day with his wife. Later he learned that three of his cousins had been executed and his house burned down. He has since settled in California and, afraid to return to Guatemala, has applied for political asylum. c. Juan Doe: In July of 1982, when Doe was nine years old, soldiers came to his village, seized his father and six other men and, after holding them for two days, drove them in a truck to a military post five miles away. Doe and some relatives followed the truck. He saw the prisoners taken into an open yard and questioned; he saw his father beaten and kicked; he saw the soldiers make the prisoners walk on broken glass, put heated iron to their feet, and stick needles under their finger and toe nails. They then began to mutilate the prisoners, severing flesh and body parts, cutting pieces from Doe’s father’s chest, back and arms; they shot the prisoners in the legs and beat them to make them try to stand. At length, forcing the prisoners over to a large hole filled with burning mattresses and cardboard, the soldiers began to throw the prisoners in one by one; Doe saw his father’s burnt body in the hole. Returning home, he found his house burned down and his mother and siblings gone. Believing them dead and fearing for his life, he left Guatemala the next day. For the next five years he worked as a field hand in Mexico, staying on the move to avoid Mexican immigration and raids by the Guatemalan army. Now settled with relatives in California, he has learned that his mother and siblings are still alive. However, hearing reports that the army is threatening his brothers, he remains afraid to return and, for their safety, is using an assumed name in this lawsuit. d. Elizabet Pedro-Pascual: In July of 1982, Pedro-Pascual’s older sister was shot and beheaded by soldiers while visiting a neighboring village. Later, learning that the soldiers were nearing her town, she and her family fled to Mexico. In 1990, she arrived in the United States and, fearing for her life should she return to Guatemala, has applied for political asylum. e. Margarita Francisco-Marcos: In December of 1982, when Francisco-Marcos was ten, soldiers seized her uncle; he has not been seen since. A week later, 800 soldiers came into her village; they ransacked her house, threatened her family, and left with prisoners. They returned the next day, marched the prisoners around and beat them. One soldier terrorized a woman who lived next door. Two days later, fearing the soldiers’ return, Francisco-Marcos and her parents fled on foot to Mexico. For six years they remained in Mexico, fearful and always on the move, frequently attacked by the Guatemalan army and sometimes separated. After arriving in the United States, Francisco-Marcos applied for political asylum in 1989. f. Francisco Manuel-Mendez: In July of 1982, Manuel-Mendez’ cousin passed through his village on her way to Mexico with her children; she had been forced to flee after soldiers had destroyed her home and taken her husband away. Over the previous six months, Manuel-Mendez had heard similar tales of villages being burned and young men killed — including two of his cousins — from a growing stream of refugees. He himself had seen the smoke and had pulled bodies from the river. Fearing a similar fate, Manuel-Mendez fled on foot with his wife and children to Mexico. After seven years of living in refugee camps in Mexico, they reached the United States in 1990 and applied for political asylum. g. Juan and Miguel Ruiz-Gomez: In October of 1982, the ranch where brothers Juan and Miguel Ruiz-Gomez worked and lived with their families was bombed from the air as forty soldiers approached in jeeps and trucks. Fearing for their lives, they fled to Mexico where for several years they lived itinerant lives of fear and deprivation. They lost friends in the soldiers’ attacks and were separated from family members. After many hardships, they reached the United States in 1990 and they have applied for political asylum. h. Jose Alfredo Callejas: In November of 1988, soldiers tortured, mutilated and killed 21 civilians in the village near Callejas’ home where his father lived. Among the victims were his brother Luis and several cousins, whose abused bodies he saw. Following this massacre, the Army pressured survivors to say that it was not the Army, but “guerillas” who had been responsible. Knowing otherwise, Callejas, his brother Baldomero and his father spoke out to human rights workers. Months later, soldiers questioned Callejas’ father about his claims that the Army was responsible, and Callejas began to receive anonymous threatening letters as well as Army notices that he was to report for questioning. Having heard that his name was on an Army death list, he did not report. In June of 1989, soldiers abducted his father, whom he has not seen since and presumes dead. In May of 1990, soldiers threw a hand grenade at him outside his home, wounding him and frightening his wife and daughters inside. In August of 1990, he met again with human rights attorneys, telling them that the Army had killed his father and showing them where the grenade was thrown. A few days later, in September of 1990, he was shot at by men in a ear with a machine gun. Narrowly escaping, he sought asylum at the Canadian embassy with his wife and family and thereafter left for Canada. In December of 1991, he heard that his brother Baldomero, after being harassed by Army intelligence, had been murdered. He feels responsible for the deaths of his father and brother, wishes he could bury his father properly, and longs for his life and family in Guatemala where he was self-sufficient. 2. The Defendant’s Responsibility The plaintiffs allege that the defendant Gramajo, as Vice Chief of Staff and director of the Army General Staff from March of 1982 through 1983, as commander from July through December of 1982 of the military zone in which the plaintiffs resided, and as Minister of Defense from 1987 through 1990, was personally responsible for ordering and directing the implementation of the program of persecution and oppression that resulted in the terrors visited upon the plaintiffs and their families. (Nairn Aff., Xuncax Ex. L.) I find their allegations supported by the record. I also find that Gramajo may be held liable for the acts of members of the military forces under his command. In Application of Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499 (1946), the commander of Japanese armed forces in the Philippine Islands during World War II was held responsible for numerous acts of atrocity committed by servicemembers under his command. The allegations contained in the prosecution’s Bill of Particulars against Yamashita are eerily parallel to those made here: “a deliberate plan and purpose to massacre and exterminate a large part of the civilian population of Batangas Province, and to devastate and destroy public, private and religious property therein, as a result of which more than 25,000 men, women and children, all unarmed noncombatant civilians, were brutally mistreated and killed, without cause or trial, and entire settlements were devastated and destroyed wantonly and without military necessity.” 327 U.S. at 14, 66 S.Ct. at 347. The Court upheld Yamashita’s conviction by a United States military tribunal, explaining: It is not denied that such acts directed against the civilian population of an occupied country and against prisoners of war are recognized in international law as violations of the law of war. But it is argued that the charge does not allege that petitioner has either committed or directed the commission of such acts, and consequently that no violation is charged as against him. But this overlooks the fact that the gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command by “permitting them to commit” the extensive and widespread atrocities specified____ It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent____ Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates. 327 U.S. at 14-15, 66 S.Ct. at 347-^8 (citation to Hague Convention omitted). In Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D.Cal.1987), the court held an Argentine General responsible for acts of brutality committed by military personnel in the defense zone under his command. The court explained: Although the individual acts are alleged to have been committed by military and police officials, plaintiffs allege that these actors were all agents, employees, or representatives of defendant acting pursuant to a “policy, pattern and practice” of the First Army Corps under defendant’s command. Plaintiffs assert that the defendant “held the highest position of authority” in Buenos Aires Province; that defendant was responsible for maintaining the prisons and detention centers there, as well as the conduct of Army officers and agents; and that he “authorized, approved, directed and ratified” the acts complained of. 672 F.Supp. at 1537-38 (citation omitted). In enacting the Torture Victim Protection Act of 1991, Congress apparently endorsed this approach. As the Senate Committee Report explained: The legislation is limited to lawsuits against persons who ordered, abetted, or assisted in the torture. It will not permit a lawsuit against a former leader of a country merely because an isolated act of torture occurred somewhere in that country. However, a higher official need not have personally performed or ordered the abuses in order to be held liable. Under international law, responsibility for torture, summary execution, or disappearances extends beyond the person or persons who actually committed those acts— anyone with higher authority who authorized, tolerated or knowingly ignored those acts is liable for them. S.Rep. No. 249, 102d Cong., 1st Sess. 9 (1991) (footnote omitted). The Senate Committee Report used Yamashita and Forti I to illustrate this principal of “command responsibility:” ... although Suarez Mason was not accused of directly torturing or murdering anyone, he was found civilly liable for those acts which were committed by officers under his command about which he was aware and which he did nothing to prevent. Similarly, in In re Yamashita, the Supreme Court held a general of the Imperial Japanese Army responsible for a pervasive pattern of war crimes committed by his officers when he knew or should have known that they were going on but failed to prevent or punish them. Such “command responsibility” is shown by evidence of a pervasive pattern and practice of torture, summary execution or disappearances. Id. (citation and one footnote omitted) (footnote in original). In this case, plaintiffs have convincingly demonstrated that, at a minimum, Gramajo was aware of and supported widespread acts of brutality committed by personnel under his command resulting in thousands of civilian deaths. (See Manuel Aff. at 7-16, Ortiz Ex. F; Nairn Aff. at 5-8, 10-11, Ortiz Ex. G.) Gramajo refused to act to prevent such atrocities. When publicly confronted with the murder of innocent civilian» by soldiers under his command, Gramajo “did not deny the stated facts. He instead replied that he saw his actions as appropriate and involving the use of ‘flexible’ and ‘humanitarian’ tactics.” (Nairn Aff. at 13.) In the face of public outcry, “the massacres continued and indeed got worse.” (Nairn Aff. at 14 (reporting from personal observation).) Indeed, the evidence suggests that Gramajo devised and directed the implementation of an indiscriminate campaign of terror against civilians such as plaintiffs and their relatives. As reported by Allan Nairn: Gramajo’s field commanders were, as one described it to me, “on a very tight leash.” They received daily orders stating which villages they were to strike and when. They maintained hourly radio contact with provincial army headquarters during which they received constant updates on their orders and reported back the results (including body counts) of what transpired in each village. Each day’s activities were recorded for inspection by Gramajo and his subordinates in a daily Diary of Operations which was — according to the established procedures — reviewed with each field commander in a weekly meeting. Gramajo also, by his own description, travelled throughout the highlands to personally supervise the field commanders. Field commanders also received lists of individuals to be eliminated in each village____ The lists came from G-2, the army intelligence section, which operated at this time under Gramajo’s direct supervision. (Nairn Aff. at 8-9, 7 (reporting soldiers told him “the killing and the torture was preplanned, systematized, and carried out with a political objective under strict military discipline”).) In addition, Nairn was told by “a well informed source on the Guatemalan army” that “Gramajo was the officer putting together the rural program and that he was ‘the brains’ and ‘the intellectual author’ of the operation.” (Nairn Aff. at 10, 15-17.) B. The Ortiz Complaint: Civil Action No. 91-11612 Plaintiff Dianna Ortiz, an Ursuline nun and a citizen of the United States, was kidnapped, tortured and subjected to sexual abuse in Guatemala by personnel under Gramajo’s command. When word of her treatment became public, Gramajo defamed her by falsely asserting her injuries were inflicted by an angry lover. Devastated and scarred by her ordeal, Ortiz brings this action, seeking compensatory and punitive recovery against Gramajo for his violations of international law, United States statutory law, and the municipal tort laws of various jurisdictions. 1. The Plaintiff’s Ordeal From 1987 through 1989, Ortiz was engaged in missionary work with the Kanjobal Indians of Guatemala in a poor rural parish in Huehuetenango. (Ortiz Aff. ¶¶ 1, 2.) In late 1988, nearly a year after her arrival, Sister Ortiz began to receive anonymous written threats and warnings, accusing her (and other nuns) of planning to meet with “guerrillas,” telling her that she was in danger and should leave Guatemala. Id. at ¶¶ 7-11. In July 1989, a man accosted her on a street in Guatemala City, threatening her and again telling her to leave the country. Frightened by this experience, Ortiz left Guatemala for two months, but then returned to resume her work. Id. at ¶¶ 16-18. Upon her return, the written threats and warnings resumed. Id. at ¶¶ 19-21. Then, on November 2, 1989, while in the garden of a religious retreat center in Antigua, Ortiz was kidnapped by two men with a gun, one of whom was the man who had accosted her in Guatemala City. Id. at ¶¶ 21-23. First on foot, then by bus, and finally in a National Police patrol car driven by a uniformed National Policeman, her abductors took her to a warehouse-like detention center where, after being temporarily blindfolded, she was locked alone in an unlit room for hours. Id. at ¶¶ 26-33. During the period of captivity that followed, Ortiz was subjected to horrific treatment. Her captors, while interrogating her, burned her with cigarettes each time she responded, no matter what the answer; she protested that she was a North American citizen to no avail; they showed her photos of herself taken without her knowledge at various places and times throughout her stay in Guatemala, as well as photos of other indigenous people they claimed were subversives, all the while continuing to burn her with cigarettes as they questioned her about the pictures; they blindfolded her again and hit her in the face so hard she was knocked to the floor; sitting her up, they stripped her and sexually abused her, raping her repeatedly until she began to black out intermittently. Id. at ¶¶ 34-45. Later she awoke to find herself in a different room bound by the wrists to something above her; she was again interrogated, again raped, then lowered into a foul-smelling pit that seemed to be filled with bodies and crawling with rats; passing out again, she awoke only to be held down on the ground and raped yet again. Id. at ¶¶46, 47. At this point, a man she believed to be an American came in, cursed her tormentors and told them to leave her alone because she was North American and word of her abduction had been given wide coverage on the news. He then took her outside and, asking her forgiveness for this “mistake” that he said they had tried to prevent with the threatening letters, put her in a car and told her he would take her to a “friend in the U.S. Embassy” who could help her leave the country. Id. at ¶¶ 47-54. As they drove, however, she recognized that she was in the capital city and jumped out while the ear was stopped in traffic; 48 hours later she was out of Guatemala. Id. at ¶ 54, ¶ 58. 2. The Defendant’s Responsibility The defendant Gramajo, as Guatemala’s Minister of Defense from 1987 until 1990, occupied the highest post in the Guatemalan military throughout Ortiz’s ordeals. (Nairn Aff. ¶ 37, Ortiz Ex. G.) In this position, “Gramajo exercised authority and control over all subdivisions of the army and security forces,” including “the National Police and detective units ... as well as G-2, the intelligence section of the Army General Staff.” Id. As Nairn explains: G-2, which reported directly to Gramajo (its officers meeting and conferring with him on a daily, sometimes hourly, basis), and operated, as he put it, under “strict control,” centrally coordinated the surveillance, abduction and murder of Guatemalan and foreign civilians____ These operations would be carried out by the G-2’s own officers and agents, or, under its guidance and Gramajo’s command, by members and units of the rest of the Guatemalan army and the various security forces. Id. According to Gramajo, G-2 followed “ ‘all those who are in opposition to the state within a very broad range’ — ‘Guatemalans as well as foreigners’ — with special emphasis on ‘the behavior and attitude that have been displayed by persons who have been classified as ‘opponents of the state.’ ’ ” Id. ¶ 38. Gramajo included people active in the Catholic church, such as Ortiz, in his expansive definition of “opponents of the state.” See id. ¶ 39. Despite numerous reports of disappearances and torture linked to G-2 and Gramajo, defendant took no action to stop such brutahty; choosing instead to disparage the victims. Id. at ¶ 40-¶ 45. This pattern is entirely consistent with the horrific treatment Ortiz received at the hands of forces under Gramajo’s direct supervision. Id. at ¶ 46. As noted in Part II.A.2, above, Gramajo bears command responsibility for the brutality visited upon Ortiz. He compounded that responsibility with a gratuitous act of personal cruelty designed to divert attention from Ortiz’s ordeal. Shortly after Ortiz fled Guatemala, Gramajo publicly stated that she had staged her own abduction and torture to cover up her involvement in a “love affair” and that her physical injuries did not actually exist. Id. at ¶49. These statements were widely publicized in both Guatemala and the United States in national newspapers and on television. (Ortiz Complaint ¶27-¶31.) III. DISCUSSION An extended discussion is necessary to analyze fully the jurisdiction of this Court to provide a remedy for acts of a foreign government official outside this country. A. Foreign Sovereign Immunities Act Under the Foreign Sovereign Immunities Act (FSIA) “a federal court lacks subject matter jurisdiction over a claim against a foreign state,” unless certain exceptions not relevant here apply, Saudia Arabia v. Nelson,—U.S.-,-, 113 S.Ct. 1471, 1476, 123 L.Ed.2d 47 (1993). Thus, as a preliminary jurisdictional matter, I must determine whether the FSIA is triggered by either of the two actions now before me. Because by its terms, the FSIA operates to immunize only a “foreign state” from the exercise of this court’s jurisdiction, I turn to a discussion of that term. Section 1603 of the FSIA defines a “foreign state” to include the state’s political subdivisions and its “agenepes] and instrumentalities].” The literal language of the statute thus seems to exclude natural persons from the scope of its grant of immunity. See, e.g., Republic of Philippines v. Marcos, 665 F.Supp. 793, 797 (N.D.Cal.1987) (terminology of statute makes clear not intended to apply to natural persons). Nevertheless, the Ninth Circuit has held that immunity under the FSIA extends to an individual official of a foreign state acting in his official capacity. See Trajano v. Marcos, In re Estate of Marcos, Human Rights Litigation, 978 F.2d 493, 497-98 (9th Cir.1992) (“Marcos Estate I”), cert. denied,—U.S.-, 113 S.Ct. 2960, 125 L.Ed.2d 661 (1993); Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1099-1103 (9th Cir.1990). The Ninth Circuit has also held, however, that an individual official of a foreign state is not entitled to immunity under the FSIA in an action brought against him for acts beyond the scope of his authority. See Marcos Estate I, 978 F.2d at 497; Chuidian, 912 F.2d at 1106. As the Ninth Circuit recently observed, “[a] lawsuit against a foreign official acting outside the scope of his authority does not implicate any of the foreign diplomatic concerns involved in bringing suit against another government in United States courts.” Hilao v. Marcos, In re Estate of Marcos, Human Rights Litigation, 25 F.3d 1467, 1472 (9th Cir.1994) (“Marcos Estate II”), cert. denied,—U.S.-, 115 S.Ct. 934, 130 L.Ed.2d 879 (1995). The First Circuit has not yet addressed the specific question whether, in the context of the FSIA, a “foreign state” should be defined to encompass an individual acting in his or her official capacity. Without deciding whether the scope of FSIA immunity should be thus extended, I conclude, as has the Ninth Circuit, that such immunity would in any event be unavailable in suits against an official arising from acts that were beyond the scope of the official’s authority. Upon review of the evidence adduced in support of default judgment, I find that the acts which form the basis of these actions exceed anything that might be considered to have been lawfully within the scope of Gramajo’s official authority. Accordingly, I conclude that the defendant is not entitled to immunity under the FSIA, even if that statute were construed to apply to individuals acting in their official capacity. Cf. DeLetelier v. Republic of Chile, 488 F.Supp. 665, 673 (D.D.C.1980) (assassination is “clearly contrary to the precepts of humanity as recognized in both national and international law” and so cannot be part of official’s “discretionary” authority), cert. denied, 471 U.S. 1125, 105 S.Ct. 2656, 86 L.Ed.2d 273 (1985). B. Independent Federal Subject Matter Jurisdiction in Ortiz v. Gramajo, Civil Action No. 91-11612 1. Torture Victim Protection Act of 1991 Plaintiff Ortiz, a U.S. citizen, brings this action in part under the Torture Victim Protection Act of 1991 (“TVPA”), Pub.L. No. 102-256, 106 Stat. 73, enacted on March 12, 1992. The statute provides in relevant part: An individual who, under actual or apparent authority, or color of law, of any foreign nation ... subjects an individual to torture shall, in a civil action, be liable for damages to that individual. TVPA, § 2(a)(1). The statute unambiguously provides victims of torture with a private cause of action against the perpetrators of such abuse. As a prima facie matter, therefore, Ortiz properly invokes the statute in this litigation: the defendant plainly acted under color of law, and there can be no doubt that Ortiz was subjected to torture. However, because the events of which she complains predate the enactment of the TVPA, I must first address the question whether that statute may be applied retroactively to her claims. 2. Retroactivity The provisions of the TVPA statute itself do not speak to the question of retroactivity; nor does the statute’s legislative history shed light on the matter. Last term, in Landgraf v. USI Film Products,—U.S. -, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court reemphasized the importance of a general presumption against retroactivity. There, the Court held that provisions of the Civil Rights Act of 1991 allowing recovery of compensatory and punitive damages, and authorizing a jury trial on such damages, did not apply to a case pending on appeal when the statute was enacted. The Court explained: the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the “principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” — U.S. at-, 114 S.Ct. at 1497 (citation and footnotes omitted). The Court noted, however: We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed____ Application of a new jurisdictional rule usually “takes away no substantive right but simply changes the tribunal that is to hear the ease.” Present law normally governs in such situations because jurisdictional statutes “speak to the power of the court rather than to the rights or obligations of the parties.” —U.S. at---, 114 S.Ct. at 1501-02 (citations omitted). Similarly, applying the TVPA retroactively allows Ortiz to bring suit in federal court rather than in a municipal court. It does not automatically change the rights or obligations of the parties. In this case, it is theoretically possible to tease out the legal argument that had the defendant only known of his incipient liability under the TVPA, he would have refrained from engaging in torture. To indulge the illusion that an actor will first review his or her potential liability under all extant law before taking action is more than just an empty legal fiction employed for disciplined resolution of these matters — it is an expression of a fundamental desire to ensure that the law in all cases be fairly applied. Nonetheless, I do not believe that the acceptance of such a fiction here would further that interest. The universal condemnation of the use of torture was fully established prior to the events on which the instant claims turn. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 883-85 (2nd Cir.1980) (finding right to be free from torture vis-a-vis one’s own government a fundamental principle under international law); Universal Declaration of Human Rights, adopted Dec. 10, 1948, art. 5, U.N. Doc. A/811 (“No one shall be subjected to torture ... ”). It cannot be suggested credibly that Gramajo “believed” his actions fell within some prevailing legal norm. Thus, the Supreme Court’s observation in Landgraf, that “[i]n a free, dynamic society, creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal consequences of their actions,”—U.S. at-, 114 S.Ct. at 1497, is plainly inapplicable to the present ease. For similar reasons, I find that the public’s interest in seeing that the TVPA is available to a plaintiff such as Ortiz who has suffered deliberately brutal abuse far outweighs any disappointment there might be of Gramajo’s private expectations. There being thus neither compromise of substantive rights nor consequent manifest injustice, I conclude that retroactive application of the TVPA as the law in effect at the time of decision is entirely proper in this case. Given retroactive application of the TVPA, federal statutory law clearly creates the cause of action upon which plaintiff Ortiz’s lawsuit is founded. The case thus “arises under” the laws of the United States for purposes of federal question jurisdiction under 28 U.S.C. § 1331. See, e.g., Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 3232, 92 L.Ed.2d 650 (1986) (quoting Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-9, 103 S.Ct. 2841, 2845-46, 77 L.Ed.2d 420 (1983)). This Court therefore has subject matter jurisdiction to hear plaintiff Ortiz’s TVPA claims. 3. Plaintiff Ortiz’s Claim under TVPA In order to be entitled to recover damages under the Torture Victim Protection Act, plaintiff Ortiz must show that she was subjected to torture by the defendant under “actual or apparent authority, or color of law, of any foreign nation” and that she has “exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.” TVPA, § 2(a), (b). Taking the factual allegations described earlier as admitted by virtue of the defendant’s default, I find them more than sufficient to establish that Gramajo did under color of law (by his order and command) subject Ortiz to torture as defined in § 3(a) of the Torture Victim Protection Act. I find also that Ortiz has exhausted the remedies that were available to her “in the place in which the conduct giving rise to [her] claim occurred,” i.e., Guatemala. The plaintiff states in her affidavit that she returned to Guatemala in April of 1992 (approximately two and a half years subsequent to her abduction) to provide testimony in the courts of Guatemala. (See Ortiz Deel. ¶ 65.) The plaintiff provided over twelve hours of in-court testimony, during which she was asked to recount the details of her ordeal. At last report, this criminal case had made no progress for several years; and, under Guatemalan law, a civil action cannot be brought until final judgment has been rendered in the criminal proceedings. The legislative history to the TVPA indicates that the exhaustion requirement of § 2(b) was not intended to create a prohibitively stringent condition precedent to recovery under the statute. Rather, the requirement must be read against the background of existing judicial doctrines under which exhaustion of remedies in a foreign forum is generally not required “when foreign remedies are unobtainable, ineffective, inadequate, or obviously futile.” S.Rep. No. 249, 102d Cong., 1st Sess. 10 (1991). I find that Ortiz has exhausted the remedies available to her in Guatemala for purposes of the TVPA. C. Independent Federal Subject Matter Jurisdiction under 28 U.S.C. § 1350 in Xuncax et al. v. Gramajo, Civil Action No. 91-11564 The Xuncax plaintiffs, unlike plaintiff Ortiz, do not expressly assert a claim in their Complaint under the Torture Victim Protection Act of 1991 (“TVPA”), Pub.L. 102-256, 106 Stat. 73, which was passed slightly more than a month after they filed their Brief in Support of Motion for Default Judgment. Rather, they contend that this Court has subject matter jurisdiction to entertain their claims by virtue of the Alien Tort Claims Act, 28 U.S.C. § 1350. That statute provides that a federal district court “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or treaty of the United States.” 28 U.S.C. § 1350. 1. The Scope of § 1350 Judicial opinions that have had occasion to impart meaning to § 1350 have not reached a consensus regarding the statute’s import. A majority of courts, interpreting the statute broadly, have held that if an alien plaintiff can establish that the abuses allegedly inflicted upon her constitute violations of international law, § 1350 grants both a federal private cause of action as well as a federal forum in which to assert the claim. See, e.g., Marcos Estate II, 25 F.3d at 1475 (9th Cir.1994) (§ 1350 “creates a cause of action for violations of specific, universal and obligatory human rights standards,”); Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 424-25 (2d Cir.1987), rev’d on other grounds, 488 U.S. 428, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir.1980); Paul v. Amil, 812 F.Supp. 207, 212 (S.D.Fla.1993); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1539 (N.D.Cal.1987), on reconsideration on other grounds, 694 F.Supp. 707 (N.D.Cal.1988). The Ninth Circuit has concluded that § 1350 plaintiffs may look to municipal law as a source of substantive law. See Marcos Estate I, 978 F.2d at 503 (9th Cir.1992), cert. denied,—U.S.-, 113 S.Ct. 2960, 125 L.Ed.2d 661 (1993). See also Marcos Estate II, 25 F.3d at 1476 n. 10. Judges of the District of Columbia Circuit, meanwhile, via separate concurrences, have at length and in a considered fashion propounded alternative views. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984); id. at 798 et seq. (Bork, J., concurring) (independent cause of action must be created by federal statute or international law itself, § 1350 inadequate to do so), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985), id. at 775, et seq.-, (Edwards, J., concurring) (suggesting domestic tort law may provide substantive cause of action under § 1350). After extended reflection, I find that § 1350 yields both a jurisdictional grant and a private right to sue for tortious violations of international law (or a treaty of the United States), without recourse to other law as a source of the cause of action. a. The Filartiga Approach In Filartiga, the wellspring of modern § 1350 case law, the Second Circuit first determined that the acts of torture there at issue violated international law. Id. at 882-84. The court then concluded that international law forms an integral part of the common law of the United States and that, accordingly, “[fjederal jurisdiction over cases involving international law is clear.” Id. at 887. In reaching this point, the Filartiga court flatly rejected the argument that, under the Constitution’s grant of power to Congress to “define and punish ... offenses against the law of nations,” Art. I, see. 8, cl. 10, international law fell within federal common law “only to the extent that Congress has acted to define it,” citing “numerous decisions applying rules of international law uncodified in any act of Congress.” Id. at 886 (citations omitted). The court similarly rejected the notion that § 1350 itself was but a grant by Congress to the federal judiciary to define what constitutes a violation of international law. Adjuring that courts “are not to prejudge the scope of the issues that the nations of the world may deem important to their interrelationships,” the court stated that [i]t is only where the nations of the world have demonstrated that the wrong is of mutual, not merely several, concern, by means of express international accords, that a wrong becomes an international violation within the meaning of the statute. Id. at 888. This understanding of the function of § 1350 comports with my own reading of the statute. By contrast, in his concurrence in Telr-Oren, Judge Bork contended that the terms of § 1350 do not grant plaintiffs an explicit cause of action, and that a plaintiff who seeks to invoke a court’s subject matter jurisdiction under § 1350 must show that international law or a United States treaty (upon the basis of which the plaintiff invokes § 1350) provides a right to sue. See Telr-Oren, 726 F.2d at 810-16 (Bork, J., concurring). Judge Bork’s view is notably more restrictive than the plain language of § 1350 permits. As Judge Edwards observed in his Tel-Oren concurrence, Judge Bork’s interpretation might be compelling if the statute required that a plaintiffs claims “arise under” the law of nations or a treaty of the United States. See Tel-Oren, 726 F.2d at 779 (Edwards, J., concurring). But the statute contains no such language. All that the statute requires is that an alien plaintiff allege that a “tort” was committed “in violation” of international law or a treaty of the United States. Thus, in enacting § 1350, Congress has exercised its Article III power to allow aliens to seek civil redress in federal court for wrongs committed in violation of international law or United States treaties. As expressed by the district court upon remand in Filartiga v. Penor-Irala, [t]he international law prohibiting torture established the standard and referred to the national states the task of enforcing it. By enacting Section 1350, Congress entrusted that task to the federal courts and gave them power to choose and develop federal remedies to effectuate the purposes of the international law incorporated into the United States common law. 577 F.Supp. 860, 863 (E.D.N.Y.1984). To posit — and then reject — international law as a putative source for the legal mechanics of a cause of action is to misconstrue the basic nature of international law. While it is demonstrably possible for nations to reach some consensus on a binding set of principles, it is both unnecessary and implausible to suppose that, with their multiplicity of legal systems, these diverse nations should also be expected or required to reach consensus on the types of actions that should be made available in their respective courts to implement those principles. Thus, while nations may agree in some instances on a given approach, see, e.g., Tel-Oren, 726 F.2d at 778 (Edwards, J. concurring) (noting United Nations Genocide Convention committing states to make genocide a crime), in general, international law leaves it to the various states to devise the remedies they think appropriate. See, e.g., Restatement (Third) of Foreign Relations Law § 703 cmt. c. To read § 1350’s reference to “the law of nations” as requiring international agreement on the type of action available, therefore, “would be to effectively nullify [that] portion of [the statute]”, Tel-Oren, 726 F.2d at 778 (Edwards, J. concurring), a result violative of customary rules of statutory construction. See also Forti v. Suarez-Mason, 672 F.Supp. 1531, 1539 (N.D.Cal.1987) (Forti I), on reconsideration on other grounds, 694 F.Supp. 707 (N.D.Cal.1988) (Forti II). Judge Bork raised a separate objection to Filartiga’s reading of § 1350: In his view, due to the parallel construction given “law of nations” and “treaties of the United States” in the statute, the Filartiga interpretation would effectively make all U.S. treaties self-executing. See Tel-Oren, 726 F.2d at 811-12, 820 (Bork, J., concurring). Again, I question the focus of this concern; it is only those treaty provisions that would actually give rise to a “tort” action by reason of their violation which are implicated. In this, Judge Bork’s objection appears mistakenly to conflate two propositions: (1) plaintiffs may bring actions under § 1350 based upon the violation of a U.S. treaty, and (2) plaintiffs may bring actions under § 1350 for torts committed in violation of a U.S. treaty. The two propositions are different; the latter is the operative one under § 1350 and in this context is considerably more restrictive than the former. In any event, Congress, as both the author of § 1350 and the ratifler of any treaty potentially actionable thereunder, is fully capable of repairing any perceived faults in this schema. Thus far, in enacting the TVPA, Congress has expressed its approval of the Filartiga line of eases by extending to U.S. citizens as well as aliens “an unambiguous basis for a cause of action that has been successfully maintained under [§ 1350].” S.Rep. No. 249, 102d Cong., 1st Sess. 4 (1991). As the Senate Committee explained, “claims based on torture or summary executions [made actionable by the TVPA] do not exhaust the list of actions that may appropriately be covered by section 1350. Consequently that statute should remain intact.” Id. at 5 (footnote omitted). See also H.Rep. No. 367, 102d Cong., 1st Sess. 4, 5 (1991). b. The Domestic Law Alternative Approach In endorsing the Filartiga approach to § 1350, Judge Edwards worried that it would leave courts with the “awesome duty ... to derive from an amorphous entity — i.e., the ‘law of nations’ — standards of liability applicable in concrete situations.” Tel-Oren, 726 F.2d at 781 (Edwards, J., concurring). In view of this prospect, he framed an “alternative” approach which he thought might provide more effective guidance. Under this alternative approach, § 1350 would allow an alien plaintiff to bring a municipal tort claim in federal court, provided that the plaintiff could show (as a threshold matter) that the tort was committed in violation of a treaty of the United States or the law of nations. In other words, so long as an alien plaintiff can assert some private cause of action sounding in tort and grounded upon a violation of international law or a treaty of the United States, the federal district courts have jurisdiction under § 1350 to hear the plaintiff’s claims. The substantive rule of decision in a case maintained under § 1350 is then provided by the municipal tort law under which the plaintiffs bring their claims. As Judge Edwards summarized, section 1350 may be read to enable an alien to bring a common law tort action in federal court without worrying about jurisdictional amount or diversity, as long as a violation of international law is also alleged____ [T]he substantive right on which this action is based must be found in the domestic tort law of the United States. Id. at 782. As noted, the Ninth Circuit, in Marcos Estate I, 978 F.2d at 503, affirmed a district court’s use of this approach (with the apparent modification that the domestic law of the foreign jurisdiction [the Philippines] provided the cause of action — presumably based on choice-of-law reasoning). The Ninth Circuit explained: The district court’s approach also allows the “law of nations” and “treaty” prongs of § 1350 to be treated consistently, in that the cause of action comes from municipal tort law and not from the law of nations or treaties of the United States. This avoids the anomalous result which troubled Judge Bork in Tel-Oren, that whereas Filartiga found a private right of action by implying it from principles of international law, no private cause of action can ever be implied from a nonself-executing treaty. Marcos Estate I, 978 F.2d at 503 (citation omitted). The perceived value of this approach is that, after concluding the threshold inquiry into whether a violation of international law is alleged, a district court could simply apply the relatively definite and concrete standards of liability as set out in the municipal tort law. I find this elaborate approach to be neither consistent with the terms of § 1350 nor with its manifest intent. First, the Filartiga approach to § 1350— that a violation of those several norms recognized by international law provides both federal jurisdiction and a cause of action for aliens — appears to comport with the “plain meaning” of the statute. See Filartiga, 577 F.Supp. at 862-64 (on remand) (“tort” under § 1350 means wrong “in violation of the law of nations”, not merely “wrong actionable under the law of the appropriate sovereign state”). Second, leaving the remedy to be fashioned by federal courts, referring to the full range of appropriate legal materials, is both in line with the weight of precedent and would appear to have been legitimated by Congress through the passage of the TVPA. Third, as daunting a task as it may be to fashion a remedy from the “amorphous body” of international law, it is hardly out of scale with similar challenges federal courts have successfully addressed in the past. See, e.g., Textile Workers of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957) (jurisdictional statute permitting judicial explication of federal common law). Fourth, by not tethering § 1350 to causes of action and remedies previously developed under roughly analogous municipal law, the federal courts will be better able to develop a uniform federal common law response to international law violations, a result consistent with the statute’s intent in conferring federal court jurisdiction over such actions in the first place. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n. 25, 84 S.Ct. 923, 940 n. 25, 11 L.Ed.2d 804 (1964) (citing § 1350 as a statute “reflecting a concern for uniformity in the country’s dealings with foreign nations and indicating a desire to give matters of international significance to the jurisdiction of federal institutions”) (emphasis added). Fifth, when developing an appropriate response to violations of international law, courts will be freer to incorporate the full range of diverse elements that should be drawn upon to resolve international legal issues than they would if bound to a straightforward recurrence to extant domestic law. Thus, while the substantive principles giving rise to the cause of action are properly and ultimately grounded in international law, the federal courts would, for example, be less constrained from looking to the municipal law of other interested countries for guidance, so long as such law is not inconsonant with international or domestic (U.S.) law. Finally, reading § 1350 as essentially a jurisdictional grant only and then looking to domestic tort law to provide the cause of action mutes the grave international law aspect of the tort, reducing it to no more (or less) than a garden-variety municipal tort. This is not merely a question of formalism or even of the amount or type of damages available; rather it concerns the proper characterization of the kind of wrongs meant to be addressed under § 1350: those perpetrated by hostis hwmani generis (“enemies of all humankind”) in contravention of jus cogens (peremptory norms of international law). In this light, municipal tort law is an inadequate placeholder for such values. In sum, while it may be an “awesome duty” to develop the liability standards applicable to international law violations through the generation of federal common law, I do not see how reading § 1350 as mandating recurrence to municipal tort law would provide an appropriate response to the challenge. Given the seeming inadequacy of municipal law to address, meaningfully, such human rights violations as are at issue here — i.e., torture, summary execution, disappearances — there appears little warrant to look to municipal law exclusively for guidance in redressing these violations. Moreover, the domestic law approach magnifies a problem implicit in a case like Adra v. Clift, 195 F.Supp. 857 (D.Md.1961). There, the municipal tort alleged was the taking of a minor child from the parent with lawful custody, while the “international law violation” providing the jurisdictional hook was an alleged falsification of passport. Setting aside the important question whether passport misuse actually rises to the standards which define a “violation of international law,” a case like Adra begs the question of how closely allied the alleged violations of international and municipal law must be. Could they be wholly unrelated, different in kind as well as degree? Similarly, there is the concern raised by a case like Marcos Estate I, where the court sought to apply the municipal law of a foreign state. While I have noted the desirability of leaving courts free to draw upon diverse sources of law where appropriate, novel concerns arise when United States courts are obliged to discern, interpret, and then enforce standards of liability framed by foreign courts or legislative bodies, simply because the underlying cause of action may (or may not) be coincident with or analogous to an alleged violation of international law. Who would determine which municipal law is to be sued “under”? The plaintiff? Or would it be up to the court to determine, through choice-of-law principles, which domestic law was properly invoked? If the latter, is this not a further troublesome conflation of jurisdictional and substantive concerns? If the former, would the plaintiffs choice be for jurisdictional purposes only, or would it also somehow guide the choice-of-law, in which case, would there not be problems of “domestic law shopping”? c. Conclusion The Filartiga approach addresses the purposes of the Congressional mandate, while “alternative” approaches present complex challenges of their own with no convincing rationale favoring their adoption. Accordingly, I conclude that, given a successful showing that harms were committed upon them in violation of international law or a treaty of the United States, the Xuncax plaintiffs properly assert jurisdiction in this Court and state a cause of action under § 1350 without recourse to other law. I now turn to the question whether the plaintiffs in this case have shown a violation of international law sufficient to support jurisdiction under § 1350. 2. Xuncax Plaintiffs’ Claims of Violations of International Law a. Peremptory Norms of International Law As the Ninth Circuit has noted, “for a court to determine whether a plaintiff has a claim for a tort committed in violation of international law, it must [first] decide whether there is an applicable norm of international law ... and [then] whether it was violated in the particular case.” Marcos Estate I, 978 F.2d at 502. In reaching such a decision, courts are guided by “the usage of nations, judicial opinions and the works of jurists” as “the sources from which customary international law is derived.” Filartiga, 630 F.2d at 884. For further guidance regarding the “norms” of international law, courts and international law scholars look to whether the standard can be said to be “universal, definable and obligatory.” Forti I, 672 F.Supp. at 1540. These qualifications essentially require that 1) no state condone the act in question and there is a recognizable “universal” consensus of prohibition against it; 2) there are sufficient criteria to determine whether a given action amounts to the prohibited act and thus violates the norm; 3) the prohibition against it is nonderogable and therefore binding at all times upon all actors. See generally Forti I, 672 F.Supp. at 1539-40; Aff. of Int’l Law Scholars, Ortiz Ex. M; Restatement (Third) of Foreign Relations Law §§ 701-02. The Xuncax plaintiffs allege five violations of international law: (1) Summary execution: Xuncax, for her husband’s death, Doe, for his father’s death, and Pedro-Pascual, for her sister’s death; (2) Disappearance: Callejas, based on his father’s disappearance; (3) Torture: Xuncax, for her husband, Doe, for his father, and Diego-Francisco, for himself and his wife; (4) Arbitrary detention: Xuncax, for her husband, Doe, for his father, and Diego-Francisco, for himself and his wife; (5) Cruel, inhuman and degrading treatment: Xuncax, Diego-Francisco, Doe, Pedro-Pascual, Francisco-Marcos, Manuel-Mendez, the Ruiz-Gomez brothers, and Callejas; I am satisfied that four of these claims— torture, summary execution, disappearance, and arbitrary detention — constitute fully recognized violations of international law. Numerous federal court decisions and an ever-growing number of international agreements and conventions have established beyond question that the use of official torture is strictly prohibited by the most fundamental principles of international law. As the Sec- ond Circuit declared in 1980, “the to