Written by Jack Rafuse
The Supreme Court heard arguments March 6 on Kiobel v. Royal Dutch Petroleum, on whether corporations may be sued in U.S. courts under the Alien Tort Statute (ATS) provision of the Judiciary Act of 1789. (The ATS directed cases involving foreign ambassadors and officials here to the new US Federal Courts rather than subject them to possibly uneven justice in state courts.)
The ATS lay dormant until 1980 when overreaching civil rights lawyers used it against a former Paraguayan police official who had tortured a Paraguayan citizen, in Paraguay. The victim survived and moved to Florida; against all odds, his torturer also moved to Florida and was discovered by his former victim. An appeals court accepted ATS applicability and let the case go forward. Plaintiff Filartiga was awarded $10.4 million; it was never paid, since Defendant Pena had been deported back to the safety of Paraguay.
At least those people were all in Florida; Kiobel, as Justice Alito pointed out, has no American connection. During the hearing, Justices Alito and Kennedy asked variations of, “What does this have to do with the United States?” Liberal Justice Ruth Bader Ginsburg asked “is it only individual defendants or are corporations also liable?” European nations have long opposed ATS pleadings, and are on record in strong opposition to this broader overreach.·
But President Obama, perhaps trying to be Seal-like, wants to chase down, arrest, try and punish foreigners who do bad things, anywhere. He does not want to be the World’s Policeman; he wants to be its Morality Cop. To do so, he reversed a foreign policy position held by Presidents George H.W. Bush, William J. Clinton and George W. Bush; all opposed legalistic omnipotence. They did so because 20-25 years ago overreaching left-wing legislators in the European Parliament tried to give the World Court universal jurisdiction, threatening citizens of any country with arrest and prosecution for violating that group’s definition of “international law.” Kiobel would do exactly that for US courts.·
The State Department said the US Government was not subject to European Union law or jurisdiction, nor would it allow US citizens to be hauled before the World Court on bogus charges launched by people with no legal standing under US law. (Or American officials, citizens and firms could be arrested or sued by groups who oppose the death penalty, wars with no UN blessing, the use of land mines or (today) drones, or any “international crime” as they define it. European National governments and legislators agreed; that bill never passed. So why does President Obama want to make it American law now? Probably because George Soros and organizations he funds, favor it. Watch out, America.·
Coincidentally, on March 5 Attorney General Eric Holder gave a speech explaining the administration’s legal justification for killing US citizens overseas if they are terrorist threats. I agree with that position, but some in the US and abroad consider such acts to be war crimes. Would the Morality Cop have to arrest his Attorney General, Intelligence Director and Secretary of Defense and turn himself in? Relax; we won’t find out.·
The Paraguay case misapplied the ATS and opened Pandora’s Box, so its advocates broadened their theory of ATS coverage; within 10 years they had begun to threaten or sue American firms for doing business with governments the groups abhor. (I worked for a company that was harassed for years. The case was settled out of court – the project continued, as did the project partners’ outstanding human rights and socio-economic work that had been part of it since its inception. The Soros-paid legal fees changed nothing.)·
There may be good news, however. On the day it heard Kiobel arguments, the Supreme Court announced that it will hold that case and will hear additional arguments on a broader issue -- whether anyone can be sued under the ATS for violations in other countries. Justice Kennedy pointed out that, “No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.”
A US Chamber of Commerce brief shows that since the 1990s more than 150 suits have been filed against American and foreign companies doing business in at least 60 countries. Most do not go to trial, but they are so time-consuming that many companies settle, just to end the years of aggravation. It seemed that the 2nd Circuit Court (New York) had settled the issue in its ruling on Kiobel, but the president told his administration to intervene. If he wins out, he will create international tension and erode the “cure” provided by the original ATS. What a “Leader of the Free World.”·
But the stage is set. A Supreme Court ruling could quash the president’s inane ambition, halt abuse of the ATS, and stop endless nuisance suits that do nothing to change targeted regimes, are costly to companies in business around the world, and clog the US courts. Let’s hope for the best: no Chief Morality Cop, and restored dormancy and disuse for the ATS.
Dr. Jack Rafuse, a former energy advisor to President Richard Nixon, is principal of the Rafuse Organization, an energy, trade, and national security consultancy