Ashcroft Moves To End Victims' Rights Law

by Jim Lobe

Ashcroft's Justice Department has filed a "friend of the court" (amicus curiae) on behalf of California-based oil giant Unocal in a civil case brought by Burmese villagers who claimed that the company was responsible for serious abuses committed by army troops who provided security for a company project.

But the Department's brief was not limited to defending the company against the plaintiffs. Instead, the document, which was submitted last week to the Ninth Circuit Court of Appeals in California, asked the court to reinterpret the 1789 Alien Tort Claims Act (ATCA) in a way that would deny victims the right to sue in U.S. courts for abuses committed overseas.

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

Other rights activists agreed. "The brief is a broadside attack designed to wipe the law off the books," said Elisa Massimino, director of the Washington office of the Lawyers Committee for Human Rights (LCHR), while Terry Collingsworth, director of the International Labor Rights Fund (ILRF) and one of the lead attorneys in the Burma case, called the move "shocking."

"They're not just saying a bunch of Burmese peasants can't sue a U.S. oil company," said Tom Malinowski, director of HRW's Washington office. "They're saying Holocaust survivors were wrong to have sued German companies for enslavement during World War II, and that victims of genocide in Bosnia were wrong to try (Serb leader Radavan) Karadzic in U.S. courts. I don't think this administration wants to be seen as denying victims rights in these cases."

ATCA, which was enacted by the first U.S. Congress as a tool for piracy on the high seas, permits non-citizens to sue foreign and domestic individuals or companies in the United States for abuses "committed in violation of the law of nations or a treaty of the United States."

Since 1980, the Act has been used successfully by victims of abuses committed by foreign governments and militaries overseas against individual defendants who were served with notice while living or visiting in the United States.

The first case was brought by the father and sister of Joel Filartiga, a 17-year-old Paraguayan who was kidnapped and tortured to death by a Paraguayan police officer who subsequently came to the United States. In that case, another appeals court ruled that ATCA permitted victims to pursue claims based on violations of international human rights law.

Subsequent cases have been brought against national leaders, such as former Philippine President Ferdinand Marcos, and senior army officers from Guatemala, Indonesia, Argentina, Ethiopia and El Salvador, among other countries. While damages have been awarded in almost all those cases, they have rarely been collected, primarily because defendants fled the United States once they received legal notice.

Attorneys began bringing cases against U.S. and foreign corporations -- usually involving, as in the Unocal case, alleged abuses committed by foreign armies or police that provided security for the companies -- under ATCA in 1993. About 25 such cases have since been filed, although most of them have been dismissed by the courts.

The most successful have been brought by survivors of the Nazi Holocaust against foreign companies and banks, which rejected their efforts at recovering their money or insurance claims after World War Two. While the case was never fully tried, it helped induce Swiss banks to negotiate settlements worth more than one billion dollars.

The Unocal case was originally filed in 1996. Last September, the Ninth Circuit Court overturned the dismissal of a trial-court judge and ruled that the company could be sued for such abuses as forced labor, rape and murder committed by Burmese soldiers guarding the Yadana gas pipeline, if plaintiffs produced evidence showing that the company knew about and benefited directly from the troops' conduct.

In its brief, the Justice Department was far less concerned about the specific case than about all litigation under ATCA which, it said, "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 occurred in a foreign country, often with no connection whatsoever with the United States."

The brief said that ATCA could not be used as a basis to file civil cases and that victims should sue under other laws; that the "law of nations" covered by the Act did not include international human rights treaties; and that abuses committed outside the United States should not be covered by the law.

"Although (ATCA) is somewhat of a historical relic today, that is no basis for transforming it into an un-tethered grant of authority to the courts to establish and enforce (through money damage actions) precepts of international law regarding disputes arising in foreign countries," the brief said.

Moreover, it warned, the use of the Act "bears serious implications for our current war against terrorism, and permits (ATCA) claims to be easily asserted against our allies in that war." In that respect, it "raises significant potential for serious interference with important foreign policy interests."

But human rights activists pointed out that if U.S. foreign policy interests were at risk, the State Department always has the option of intervening in an ATCA case -- as it did last summer when it asked a judge to dismiss a case brought by plaintiffs from Aceh, Indonesia, against oil giant ExxonMobil.

Indeed, the State Department was explicitly asked to comment on the foreign-policy implications of the Burma case and reportedly prepared a letter that said it had no problems with the action proceeding. But the Justice Department, which represents the rest of the government, failed to deliver the letter and instead filed its own brief, which makes no reference to a State Department position.

"I don't think this has anything to do with the war on terror," said Malinowski. "I think this is motivated by a very hard-core ideological resistance within the Justice Department to the whole concept of international law being enforced. The notion that international norms are enforceable by anyone is repugnant to some in the Justice Department."

Collingsworth agreed that the move contradicted the administration's avowed aim to end terrorism. "Particularly today, with all this talk of the war on terror, to remove one of the few tools we have to address human rights violations is the epitome of hypocrisy," he said, adding that he thought the Ninth Circuit Court would reject Ashcroft's arguments. "The Department of Justice filed the almost identical brief in the Marcos case in the late 1980s, and it was rejected."