An Unintended Double Standard of Liability: The Effect of the Westfall Act on the Alien Tort Claims Act

In recent years, largely as a result of the war on terror and resulting abuses at Guantanamo and elsewhere, noncitizens have begun to file more suits against U.S. officials, alleging torture and other violations of the law of nations. Although such claims against foreign officials may succeed on these grounds pursuant to the Alien Tort Claims Act (ATCA), the Westfall Act bars these claims when made against U.S. officials. The Westfall Act provides absolute immunity to federal employees for torts committed in the scope of their employment. An examination of the history of the Westfall Act, however, demonstrates that the Act was only meant to immunize federal employees for garden variety, state law torts. Torts of the kind cognizable under the ATCA were not intended or even foreseen to fall within the ambit of the Westfall Act’s immunity. Rather, the current double standard of liability for international law violations is an unintended byproduct of unforeseeable developments in the law governing ATCA actions. This Note proposes a legislative amendment to the Westfall Act that creates an exception to the Act’s provision of immunity for cognizable violations of the law of nations in order to return the Westfall Act to its original intended scope.