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Not in Their Backyard

Legal experts and analysts weigh impact of Supreme Court decision to uphold the Alien Tort Claims Act, commonly used by human rights groups to try cases against U.S. corporations on American soil.

by Jacqueline KochSpecial to CorpWatch
July 14th, 2004

Cartoonist: Khalil Bendib

Though he may never set foot in America, an Iraqi man simply identified as “Plaintiff Ahmed” wants to have his day in a US court.

On June 9, the former detainee at the Abu Ghraib prison embarked on a class-action lawsuit filed by the Center for Constitutional Rights (CCR) against the American military contractors San Diego-based Titan Corporation and Arlington, Virginia-based CACI International. While in U.S. custody, plaintiff Ahmed claims he was starved, kicked, beaten with a gun, menaced by guard dogs, and forced to watch his father tortured in a similar fashion until the elder man ultimately succumbed to his injuries and died. The prison abuse case comes at a critical juncture, for the Supreme Court has just reviewed the Alien Tort Claims Act (ATCA) and upheld the right for foreign citizens like Ahmed to sue in U.S. courts.

The June 29 Supreme Court decision in Sosa v. Alvarez-Machain upheld ATCA as a key judicial tool for prosecuting human rights abuses occurring abroad. However, the ruling generated a curious reaction among those following the case closely. Both human rights groups and corporate lobbying organizations—unquestionably on opposite sides of the fence—applauded the decision.

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The International Labor Rights Fund (ILRF), a worker advocacy group based in D.C., declared the court’s decision a triumph for human rights. “The ruling clarifies, once and for all, ATCA does allow victims of human rights violations to sue,” says Executive Director Terry Collingsworth. The ILRF is currently involved in seven ATCA-related suits, pending against corporations including ExxonMobil, Unocal, Coca-Cola, and Fresh DelMonte Produce Inc.

However the National Foreign Trade Council, which has historically lobbied against ATCA, also welcomed the decision. The NFTC cites the ruling as a positive first step, despite a few reservations. “I think that we would prefer they shut the door on these cases,” says NFTC President William Reinsch. “While the ruling tells the lower courts they have gone too far, they are inviting them to try again.” Reinsch concludes on an optimistic note, “Our judgment is that [the ruling] would wipe out most of the pending cases.”

With opposing camps both declaring victory, legal scholars and lawyers have different opinions about the implications of the ATCA verdict.

According to Harold Hongju Koh, dean of the Yale Law School, the burden will rest with the judges in the lower courts. “In the wake of Alvarez they are going to have to sort out what are the actionable claims,” Koh explains. He adds that corporations have been overly fearful of ATCA and the Supreme Court’s reaffirmation of the law. “If they are not committing gross violations of human rights, there should be nothing to worry about,” Koh concludes.

ATCA, originally penned in 1789, emerged from obscurity in the 1980s and became a vital asset for prosecuting human rights abuses carried out abroad. ATCA has enabled victims to sue their torturers and suits against murderous leaders such as Radovan Karadzic of the Bosnian-Serb Republic and former Philippines dictator Ferdinand Marcos. Legal experts note that though the plaintiffs may attain otherwise elusive justice, they rarely see any monetary compensation.

Today, however, the law is more commonly invoked in cases charging transnational corporations of complicity in human rights abuses in their overseas operations. This development sent a chill through the business community and in response, corporate lobbying groups launched an aggressive campaign to have ATCA repealed.

According to Rick Herz, an attorney with the human rights and environmental defense organization EarthRights International, a the campaign against ATCA heated up in 2002, prompted by the Ninth Circuit Court’s precedent-setting decision against Unocal. The Unocal suit, originally filed in 1996 by CCR, accused the energy giant of conspiring with the military and forcing villagers to work as slave labor on its pipeline project in Myanmar, formerly Burma. The court ruled that Unocal could be held liable for aiding and abetting the Burmese military for human rights violations.

With little success in Congress, powerful lobbying organizations such as the National Foreign Trade Council and the International Chamber of Commerce regrouped and went to the Bush Administration pressing for intervention—and succeeded. Administration officials had already taken steps to thwart a case against ExxonMobil in Indonesia (see sidebar).

In November 2001, the State Department’s legal adviser, William H. Taft IV, intervened on behalf of Rio Tinto, a British mining firm facing a class-action lawsuit involving charges of human rights and environmental abuses. While Taft didn’t dispute the accusations about Rio Tinto's copper mine in Papua New Guinea, he did urge that the case be dismissed on “foreign policy” grounds. By May 2003, Attorney General John Ashcroft weighed in as well, urging the dismissal of all cases based on ATCA.

Developments such as this indicate that the strength of ATCA may be decided outside of the courts, which could explain why corporate lobbying organizations are not as concerned about the Supreme Court's decision to uphold the act.

For his part, Collingsworth denounces Taft and Ashcroft's intervention as a violation of the separations of powers doctrine. “The Bush Administration is behaving as if it has a veto power over the judiciary and it doesn’t,” he says.

Meddling in the courts was an unmistakable sign to Herz. “It was pretty clear [the Administration] was looking for the Supreme Court to take it up,” he explains. Although an unlikely candidate, Sosa v. Alvarez-Machain was to be the corporate battleground to defeat ATCA.

The Supreme Court case involved a former Mexican police officer, Jose Francisco Sosa, who, on behalf of the U.S. Drug Enforcement Agency, kidnapped a Mexican citizen, Dr. Humberto Alvarez-Machain, to stand trial in California for the murder of a DEA agent. Alvarez-Machain was acquitted, then sued Sosa on the basis that a cross-border kidnapping violated international law. When the California court decided in favor of Alvarez-Machain, Sosa appealed, and his case, along with the future of ATCA, was pushed to the Supreme Court.

While business interests were not directly involved in that case, the list of companies represented in the amicus briefs filed in the Sosa case reads like a “Who’s Who” of top multinationals: Coca-Cola, ExxonMobil, Unocal, Nike, Chevron, and many more. Corporate arguments emphasized the “unfair disadvantage” the law presents to foreign investment opportunities abroad and claimed that such litigation is used to embarrass foreign governments.

Looking to the future of pending ATCA-based cases, Yale's Koh says, “I think the real test is the Unocal case and how that will be resolved.”

As for the Iraqi prison abuse case, CCR charges military contractors with violating the Geneva Convention and the Racketeer Influenced and Corrupt Organizations Act, among others in addition to ATCA . In that case, Koh says, “the challenge is to establish the link between the private action and the official authority.”