The human rights group EarthRights International wants answers
about the government's amicus brief in the upcoming U.S. Supreme Court rehearing of Kiobel v. Royal Dutch Petroleum, which will
determine whether victims of international human rights
violations can sue in U.S. courts.
In Kiobel's first trip to the Supreme Court last term, the
U.S. government sided with the plaintiffs, Nigerians who claim
Shell was complicit in state-sponsored violence. The issue
before the high court was whether corporations can be liable
under the Alien Tort Statute, and the government said they
could. But when the justices sent the case back to the parties
for briefing on a new question -- whether the statute applies to
conduct off the shores of the United States -- the Justice
Department switched sides. The government's amicus brief, filed
last month, argues tepidly that the ATS is not appropriate in
this particular case, though it stops short of advocating for an
absolute bar on ATS cases stemming from overseas conduct.
A former State Department legal adviser from the second Bush
administration told me at the time that the wishy-washy amicus
filing was probably the Obama administration's stab at
reconciling its first Kiobel brief with the Justice Department's
seven-year history of opposition to the overseas application of
the Alien Tort Statute. But the result sure didn't please
everyone: The State Department, which had joined Justice in
signing the first Kiobel amicus brief, pointedly did not sign
the second one.
The split between the two departments suggested to
EarthRights that "there had been intense debates within the
administration," said EarthRights legal policy coordinator
Jonathan Kaufman. The human rights group, which often represents
plaintiffs in ATS cases, had been blindsided by the Justice
Department brief, according to Kaufman. "It was shocking," he
said. "The brief was largely unexpected, based on what they had
filed previously, and pretty breathtaking."
As EarthRights studied the amicus filing, though, its
lawyers devised a hypothesis that would explain why the Justice
and State departments seemingly came down on different sides.
The brief included what Kaufman called "a laundry list" of
factors that courts should consider when they decide whether to
dismiss Alien Tort cases, including some that would protect
U.S.-based corporations. Attorney General Eric Holder and Deputy
Solicitor General Sri Srinivasan had both defended U.S.
corporations in ATS litigation when they were in private
practice. (At Covington & Burling, Chiquita Brands was one of
Holder's most important clients; Srinivasan worked on ATS cases
for Exxon Mobil and Ford when he was a partner at O'Melveny &
"The brief read like a roadmap for getting rid of cases
Srinivasan and Holder had worked on previously," Kaufman said.
"Given those clues, we were interested in anything that could
shed light" on how the Justice Department formulated its
position. (As a reality check, neither Holder nor Srinivasan
signed the DOJ brief, which lists Solicitor General Donald
Verrilli as counsel of record.)
To follow the clues it detected in the amicus brief, in the
last two weeks EarthRights has sent Freedom of Information Act
requests to the Justice Department, the Solicitor General's office and the State Department, asking for any records related
to Holder, Srinivasan and the Kiobel case, including any
communications from business groups that sought to influence the
Justice Department. "Information about the process by which the
U.S. government developed its position in the Kiobel case would
contribute to the public's understanding of the operations of
government because it implicates a fundamental question of the
influence of corporate interests in public decision making," the
FOIA filings said. "The question of whether Mr. Holder or Mr.
Srinivasan recused themselves -- or if not, should have recused
themselves -- from the development of the brief could thus shed
significant light on the influence of corporate interests on
government officials who have prior and potential future ties to
Kaufman said EarthRights expects to know what information,
if any, it will receive in response to its requests before
Kiobel is reargued. I sent a detailed email request for comment
to the Justice Department's Office of Public Affairs but didn't
immediately receive a substantive reply.
(Reporting by Alison Frankel)
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