When John Bellinger of Arnold & Porter was the legal adviser to
the State Department in the administration of George W. Bush,
the Justice Department filed about a dozen amicus briefs
addressing the Alien Tort Statute, a 1789 law that has become a
modern vehicle for international human rights litigation.
Bellinger told me on Thursday that he signed every one. When
foreign nationals use the ATS to bring cases in U.S. courts for
conduct that took place overseas, foreign policy is implicated,
and the State Department wants a voice. That's why Bellinger
believes it's so significant that when the Justice Department
filed its new amicus brief in the reformulated Kiobel v. RoyalDutch Petroleum case at the U.S. Supreme Court, State Department
legal adviser Harold Koh did not sign it.
"That seemed to be a not-so-subtle message -- more to the
human rights community than the Supreme Court -- that State did
not agree with the Justice Department position," said Bellinger,
who blogged about the DOJ brief on Wednesday night at Lawfare.
"The Obama administration was in a tight spot in this one."
The DOJ brief, signed by Solicitor General Donald Verrilli,
argues, tepidly, against the application of the Alien Tort
Statute against Shell by Nigerian nationals who claim the oil
company was complicit in state-sponsored torture and murder in
their country. That's a switch in sides for the government,
which had supported the Nigerians in Kiobel's first trip to the
Supreme Court, when the issue was whether corporations could be
liable under the Alien Tort Statute. The Justice Department said
they could, in an amicus brief that State Department adviser Koh
But then the justices changed the question in Kiobel from
corporate liability to whether the statute even extends to
extraterritorial conduct in the first place. That wasn't a novel
issue for the Justice Department, which had argued in a 2004
amicus brief at the Supreme Court that ATS does not apply
overseas (and, according to Bellinger, the Bush administration
made the same argument in several other appellate courts as
well). So the Obama DOJ was in a bind. To support the Nigerians,
it would have to repudiate what Bellinger called "seven years of
well-argued briefs" by previous Justice Department lawyers. But
to support Shell, it would have to turn its back on the State
Department and human rights advocates.
Verrilli and his team searched for some middle ground in a
brief that truly deserves the overused description "tortured."
They argued that the ATS shouldn't apply in Kiobel, which has no
connection whatsoever to the United States. But the SG also said
there's no reason to establish an absolute bar on ATS litigation
based on conduct on foreign soil. If a foreign official who
allegedly engaged in torture now resides in the United States,
for instance, that official can be sued under the ATS, according
to the brief, because otherwise the United States might be
perceived to be harboring the defendant. (Those were the facts
in Filartigan v. Pena-Irala, the 1980 Supreme Court case that
pioneered use of the ATS in human rights litigation.) "A close
examination of the historical context and purposes of the ATS,
the modern-day line of cases, and Congressional action suggests
that there are circumstances in which it would be appropriate
for a court to recognize a cause of action based on the ATS for
violations of international law occurring outside the United
States," the brief said.
The Solicitor General cautioned, however, that the purpose
of the Alien Tort Statute was "to avoid, not provoke, conflicts
with other nations," and modern-day ATS suits "have often
triggered foreign government protests." Such foreign policy
concerns, the brief said, argue against using the ATS "to create
a cause of action that challenges the actions of a foreign
sovereign in its own territory, where the defendant is a foreign
corporation of a third country that allegedly aided and abetted
the foreign sovereign's conduct." (Those are the facts, as you
know, in the Kiobel case.) The United States is also concerned,
as former Bush State Department legal adviser Bellinger noted in
a Lawfare blog post last month, about reciprocal actions by
other countries, permitting human rights suits in their courts
against U.S. officials and corporations.
The new Justice Department brief avoided opining on whether
the same exercise of caution it urged with regard to foreign
officials and corporations would preclude ATS actions against a
U.S. citizen or U.S. corporation, or cases involving conduct
"within the U.S. or on the high seas." (The reference to the
high seas is interesting, considering that the Nigerian
plaintiffs argued in their new Kiobel brief that the ATS extends
to conduct on foreign soil because it was drafted to address
piracy on the high seas.) By leaving open the possibility of ATS
suits against U.S. corporations engaged in alleged human rights
violations overseas, the new DOJ brief is, according to
Bellinger, "not entirely inconsistent" with its previous amicus
brief endorsing corporate liability under the ATS.
I emailed counsel for the Kiobel plaintiffs, Paul Hoffman of
Schonbrun DeSimone Seplow Harris Hoffman & Harrison, but didn't
hear back. EarthRights International Legal Director Marco Simons
said in a blog post about the DOJ brief that he has "rarely been
so disappointed in my government." The brief, Simons said,
argues for a weird disconnect between U.S. and foreign
corporations that would put U.S. business at a disadvantage.
Moreover, he asserted, the government's argument against
meddling in international human rights is "at odds with U.S.
foreign policy, which frequently criticizes other nations -- and
even authorizes hostile action -- based on their treatment of
their own citizens."
Shell counsel Kathleen Sullivan of Quinn Emanuel Urquhart &
Sullivan referred me to a corporate spokesman, who didn't return
my call. A Justice Department spokesman declined comment.
(Reporting by Alison Frankel)
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