Friday, October 5, 2012

In search of limits for the Alien Tort Statute

Supreme Court Grand Chamber
In the reargument of Kiobel this week, the justices of the U.S. Supreme Court seemed to be searching for a way to limit the scope of the Alien Tort Statute.
As detailed in previous IntLawGrrls posts, Kiobel v. Royal Dutch Shell involves claims that Shell aided and abetted the Nigerian government’s commission of crimes against humanity in connection with suppressing opposition to Shell’s oil extraction operations. The plaintiffs, who received asylum in the United States and currently reside here, filed the lawsuit in federal court in New York.
The U.S. Court of Appeals for the Second Circuit held on appeal that the suit should be dismissed because a corporation (as opposed to a natural person) could not be sued under the ATS. The Supreme Court originally granted certiorari on the question of corporate liability. Shortly after the oral argument on that question in February of this year, the Court set the case down for reargument this fall, with the addition of a question on the broader question of whether the ATS applied to conduct outside the territory of the United States.
Many thought that the answer to that question was implicit in the Court’s decision in 2004 in Sosa v. Alvarez-Machain, in which the Court seemingly endorsed the line of cases that began in the 1980s with the Second Circuit’s decision in Filártiga v. Peña-Irala. Filártiga had allowed an ATS suit to go forward, against a former Paraguayan police officer living in the United States, for the torture and murder of the plaintiffs’ relative in Paraguay. The relevant portions of Sosa were joined by a 6-to-3 majority of the Court (including Justice Anthony M. Kennedy, a crucial swing vote).
Justice Kagan
The issue of the presumption against extraterritorial application of statutes was explicitly argued in the Sosa case, including in the brief of the U.S. government. Nevertheless, the Court in Sosa did not adopt that line of reasoning.
To the contrary, as Justice Elena Kagan noted in her questions during the argument this past Monday, the opinion in Sosa quotes from the Filártiga court’s declaration that
'for purposes of civil liability, the torturer has become like the pirate and slave trader before him ... an enemy of all mankind.'
Echoing this line of reasoning, Justice Stephen G. Breyer asked in this week’s argument,
Justice Breyer
'[T]he question to me is who are today's pirates. And if Hitler isn't a pirate, who is? And if, in fact, an equivalent torturer or dictator who wants to destroy an entire race in his own country is not the equivalent of today's pirate, who is?'
Some observers speculated that the Court was eager to find another ground for decision, feeling that this suit seemed a bridge too far in its attenuated connection to the United States (while the plaintiffs are resident here, the defendants are U.K. and Dutch corporations, and the conduct occurred in Nigeria), yet also feeling was reluctant to rule for Shell on the corporate liability question. That presumed reluctance would be due to the unspoken shadow of the Court's decision in Citizens United v. FEC (2010). Here's the question that ruling suggested in the context of Kiobel:
If corporations are “persons” who have First Amendment rights to spend money on political campaigns, how can it be that they are not “persons” who can be sued for committing torture and genocide?
While the issues are legally distinguishable, they might not be so received by the general public. (In fact, the cab driver who drove me away from the Court on the day of the first Kiobel argument – which I attended as co-counsel in a companion case that has since been dismissed, Mohamad v. Palestinian Authority – brought up the Citizens United analogy when he learned what the question presented in Kiobel was.)
Other, less cynical observers noted that the extraterritoriality issue had been aggressively briefed by some of the amici, and that several newer members of the Court might be eager to revisit the basic holding of Sosa.
During this week's reargument (full transcript available here):
► Shell’s lawyer, Kathleen Sullivan, argued for a categorical rule against any extraterritorial application of the ATS – a rule that would exclude Filártiga and other cases like it.
Paul Hoffman, for the plaintiffs, argued against such a categorical rule, but emphasized the other ways – not currently before the Court – in which ATS actions could be limited, including doctrines such as personal jurisdiction, forum non conveniens, political question, and exhaustion.
► Solicitor General Donald Verrilli, arguing for the U.S. government, offered a confusing compromise solution. The government’s position seemed to boil down to an argument that Filártiga itself should remain good law, because we don’t want the United States to become a safe haven for individual torturers. But the Kiobel suit should not be allowed, this argument continued, because it involved (1) a foreign corporation (2) aiding and abetting (3) a foreign government (4) in the latter's territory. It was not at all clear which of these conditions would be either necessary or sufficient to the outcome.
The government refused to say how any other case – including past cases such as the Marcos case – should come out. This seemed to frustrate some on the bench.
Still other justices seemed frustrated by the government’s inconsistent positions on ATS suits.
Justice Scalia
The government had filed in favor of the Kiobel plaintiffs on the corporate liability issue, and had previously taken a more categorical position against extraterritoriality in Sosa. Justice Antonin Scalia went so far as to ask why the government should receive any deference at all in its articulation of the nation’s foreign policy interests. (From a separation of powers perspective, Scalia’s approach was somewhat shocking; isn’t the fact that the executive branch is elected and may change its position in light of elections precisely why the unelected judiciary is supposed to be deferential to it in matters of statutory interpretation, particularly on matters such as foreign policy where the executive has comparatively greater expertise?)
► Shell’s lawyer, Sullivan, suggested that applying a blanket rule against extraterritorial application of the ATS would be a “democracy-forcing device” to send the issue back to Congress. But Sullivan’s argument gets basic principles of statutory interpretation exactly backwards.
The principle of stare decisis applies particularly strongly in cases of statutory interpretation precisely because the legislature can change statutes that it believes the Court has wrongly interpreted. Eight years have passed since the Court interpreted the ATS to allow suits based on extraterritorial conduct in Sosa, and there is no shortage of corporate lobbyists who have pressed their woo on Congress since then. And yet Congress has left the ATS intact, apparently agreeing with the U.S. government’s current position that providing accountability for human rights abusers is consistent with U.S. foreign policy interests.
► As Hoffman noted, there are a million ways that ATS plaintiffs can and do lose, even when they have suffered grievous wrongs.
In this case, the defendants apparently failed timely to raise and pursue issues such as personal jurisdiction, forum non conveniens, political question doctrine, and exhaustion, choosing to emphasize other arguments instead. (Actually, Shell also failed to raise both the corporate liability and the extraterritoriality questions in a timely fashion – both were brought up for the first time on appeal.) Shell can clearly afford a good lawyer when it wants one, and its poor lawyering in the district court should not be rewarded with a massive and unjustified victory on appeal.
Joint session of Congress
Reasonable judicial modesty suggests that Sosa should not be overturned. If the members of Congress want to change the law to protect corporations who do business here while aiding and abetting torture in foreign lands, let’s at least make them vote for that on the record.
Isn’t that how democracy works?

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