the ATCA and the WoT

[Ian Murray <seamus2001@xxxxxxxxx>]

[another US law that undermines operation megalomania]


White House Seeks to Curb Rights Cases From Abroad
U.S. Fears Effect On Diplomatic Ties

By Dan Eggen and Charles Lane
Washington Post Staff Writers
Friday, May 30, 2003; Page A01


The Bush administration is pushing to limit the ability of foreign
nationals to obtain judgments against despots and multinational
corporations in U.S. courts, arguing that such lawsuits have become a
threat to U.S. foreign policy and could undermine the war on terrorism.

For the past 23 years, federal courts have allowed victims of torture and
other abuse to file claims under an obscure 1789 statute for violations of
human rights norms, commonly known as the Alien Tort Claims Act.

Since a 1980 lawsuit was filed against a former Paraguayan police chief
accused of torturing and killing a teenage boy, lawsuits have been filed
against Philippine President Ferdinand Marcos, Bosnian Serb leader Radovan
Karadzic, al Qaeda leader Osama bin Laden and banks and other companies
alleged to have profited from Nazi war crimes.

But the Justice Department, reflecting an emerging view among conservative
legal scholars, argues in a 30-page brief filed this month that such
lawsuits frequently have no connection to the United States and may
complicate foreign policy objectives by targeting allies, including
nations helping in the war on terrorism.

Many U.S. government officials also fear that the tort act will be used in
claims against the United States. The statute has been employed by a group
of detainees in Guantanamo Bay, Cuba, who were captured in Afghanistan,
and by a Mexican doctor who was kidnapped by bounty hunters and brought to
the United States to stand trial in the killing of a drug agent.

The government brief was filed in the U.S. Court of Appeals for the 9th
Circuit in San Francisco in a case involving a Unocal Corp. gas pipeline
in Burma. It said the law "has been commandeered and transformed into a
font of causes of action permitting aliens to bring human rights claims in
United States courts, even when the disputes are wholly between foreign
nationals and when the alleged injuries were incurred in a foreign
country, often with no connection whatsoever with the United States."

The filing has prompted an outcry from human rights groups and some
lawyers in the State Department, who believe that such lawsuits should be
encouraged. American University law professor Diane F. Orentlicher said
the brief amounts to "a profound reversal" on the part of the U.S.
government, which has previously been supportive or remained neutral in
many alien tort cases.

"There are legitimate questions to be raised about some of the
interpretations by some of the courts," she said. "But what they've done
with this brief is like treating a mosquito bite by cutting off your arm.
. . . It's effectively trying to roll back decades of interpretation and
the united views of Congress and the judicial branch."

Solicitor General Theodore B. Olson said in an interview that "the
position we're articulating is one that the government has articulated
over and over with respect to these kinds of cases."

Last year, for example, the State Department's top legal officer asked a
federal judge to dismiss a lawsuit under the alien tort act against
ExxonMobil Corp. in connection with operations in Indonesia, which has
been cooperative in the fight against Islamic terrorists. Also, in the
1980s, the Reagan administration filed a brief opposing use of the statute
in a lawsuit against Marcos.

The Justice Department brief was filed in the case of Doe v. Unocal.
Burmese citizens say their human rights were violated during the
construction of a $1.2 billion gas pipeline. The pipeline was a joint
venture of the Burmese military regime, Unocal -- a multinational oil and
gas company based in El Segundo, Calif. -- and two other private firms.

The plaintiffs argue that Unocal allowed the use of forced labor by
workers supplied by the government for construction of roads and
heliports. Unocal has denied the charge. Originally filed in 1996, the
lawsuit was dismissed by a federal district judge in 2000. But a
three-judge panel of the 9th Circuit reinstated it last year. The court
then granted Unocal's request for a new hearing by an expanded panel, and
oral arguments in the case are set for June 17.

The intervention of the U.S. government raises the possibility that the
issue will ultimately reach the Supreme Court. If the 9th Circuit
invalidates the claim, it will create a split in legal authority with
another court, the U.S. Court of Appeals for the 2nd Circuit in New York,
which has upheld a right to sue under the tort act. If the 9th Circuit
upholds the claim, Unocal can appeal with the support of the U.S.
government.

Supporters of the law said that it enables people to enforce rights
guaranteed them under international agreements such as the Covenant on
Civil and Political Rights, to which the United States is a party. Ending
or severely limiting such lawsuits would deprive victims of political
torture and murder of one of the few legal remedies they have, advocates
say.

"This is a craven attempt to protect human rights abusers at the expense
of victims," Kenneth Roth, executive director of Human Rights Watch, said
in a statement. "The Bush administration is trying to overturn a
longstanding judicial precedent that has been very important in the
protection of human rights."

But opponents say the statute was originally intended to deal with
incidents such as piracy or assault on a foreign diplomat in the United
States, and note that the act was used only twice in its first 190 years.
Curtis Bradley, a visiting law professor at the University of Virginia who
is critical of expansive interpretations of the tort act, said that
national security concerns since the Sept. 11, 2001, attacks underscore
the dangers of allowing such lawsuits to flourish in U.S. courts.

"The use of the statute for human rights litigation, including these
corporate suits, inherently involves policy decisions that are better made
by the executive and legislative branches, not the judicial branch," he
said. "There's a real danger that these lawsuits, if they continue to
expand as they have, could truly interfere with relations that we have
with foreign governments."

One of the most successful lawsuits was the claim against Marcos, filed by
nearly 10,000 Filipinos who won a $1.9 billion judgment against his estate
in federal court in Hawaii in 1995. The plaintiffs settled with the Marcos
estate and the Philippine government for $160 million, but payment has so
far been blocked by a judge in the Philippines.

The Unocal case marked one of the earliest attempts to use the statute
against a corporation rather than a political leader, and has been a
subject of debate in the Bush administration.

The State Department, which is deeply divided over use of the statute,
argued that Justice should not intervene in the case because of the
unsavory nature of the Burmese regime and uncertainty over Unocal's role,
according to two sources involved in the discussions. But Justice
overruled those objections and filed the brief, these sources said.

William H. Taft IV, the State Department's legal adviser, declined to
comment on the case, a spokeswoman said.

One well-known critic of the tort act is Jack L. Goldsmith, who has been
nominated chief of legal policy at the Justice Department. He co-authored
a 1999 law review article with Bradley arguing that the statute is being
used "in a context far removed from its original purposes."

Barry Lane, a spokesman for Unocal, said the Justice brief "speaks for
itself. We didn't lobby them for it or anything like that. We don't know
where it came from or how it came about."