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Whitehouse limits foreign judgements { May 30 2003 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A55921-2003May29.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A55921-2003May29.html
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."
© 2003 The Washington Post Company
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