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The Supreme Court of the United States before dawn
(Courtesy of Mark Noel)
This morning, the Supreme Court ruled unanimously that Nigerian victims of torture, extrajudicial executions, and other crimes against humanity could not sue in the United States against Shell, the oil company alleged to have aided and abetted the Nigerian military in its widespread, systematic campaign against opponents of its oil exploration efforts. On top of yesterday's ruling by the United States Court of Appeals for the Second Circuit which largely closed access to relief to 9/11 victims seeking to sue al Qaida's foreign funders, it's pretty bad all around for those of us who believed that the courthouse doors should be open to hear these victims' claims.

I previewed Kiobel v. Royal Dutch Petroleum before its reargument last fall, so go there for more of the backstory. The bottom line today is that there are four justices who really don't want American courts open to these human rights cases (guess who!), four justices who are open to such cases as a general matter, but not necessarily this one (oh, guess!), and one Justice in the middle who could be open to such cases, but only if Congress is really, really, super-clear about it, maybe (oh, come on, this is the easy one).

We're dealing today with the Alien Tort Statute, passed as part of the Judiciary Act of 1789, which reads:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
The chief justice, writing for the five you'd expect, relied on the presumption that Congress doesn't intend for its statutes to have extraterritorial reach unless it say so explicitly:
To begin, nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach. The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach—such violations affecting aliens can occur either within or outside the United States. Nor does the fact that the text reaches “any civil action” suggest application to torts committed abroad; it is well established that generic terms like “any” or “every” do not rebut the presumption against extraterritoriality.

Petitioners make much of the fact that the ATS provides jurisdiction over civil actions for “torts” in violation of the law of nations. They claim that in using that word, the First Congress “necessarily meant to provide for jurisdiction over extraterritorial transitory torts that could arise on foreign soil.”... The reference to “tort” does not demonstrate that the First Congress “necessarily meant” for those causes of action to reach conduct in the territory of a foreign sovereign. In the end, nothing in the text of the ATS evinces the requisite clear indication of extraterritoriality.

More, including pirates, below the fold:

Not the text, and not the history either:

Nor does the historical background against which the ATS was enacted overcome the presumption against application to conduct in the territory of another sovereign. We explained in Sosa that when Congress passed the ATS, “three principal offenses against the law of nations” had been identified by Blackstone: violation of safe conducts, infringement of the rights of ambassadors, and piracy. The first two offenses have no necessary extraterritorial application....

The third example of a violation of the law of nations familiar to the Congress that enacted the ATS was piracy. Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the United States or any other country.... Applying U. S. law to pirates, however, does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction. We do not think that the existence of a cause of action against them is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign; pirates may well be a category unto themselves.

The majority also rejected the notion that the United States would have wanted such a role, upon its founding:
Finally, there is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms. As Justice Story put it, “No nation has ever yet pretended to be the custos morum of the whole world . . . .” United States v. The La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (CC. Mass. 1822). It is implausible to suppose that the First Congress wanted their fledgling Republic—struggling to receive international recognition—to be the first. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.

The United States was, however, embarrassed by its potential inability to provide judicial relief to foreign officials injured in the United States. Such offenses against ambassadors violated the law of nations, “and if not adequately redressed could rise to an issue of war.”

On the other hand, opening our courthouse doors widely could lead to all sorts of international tsuris:
Indeed, far from avoiding diplomatic strife, providing such a cause of action could have generated it. Recent experience bears this out. See Doe v. Exxon Mobil Corp., 654 F. 3d 11, 77–78 (CADC 2011) (Kavanaugh, J., dissenting in part) (listing recent objections to extraterritorial applications of the ATS by Canada, Germany, Indonesia, Papua New Guinea, South Africa, Switzerland, and the United Kingdom). Moreover, accepting petitioners’ view would imply that other nations, also applying the law of nations, could hale our citizens into their courts for alleged violations of the law of nations occurring in the United States, or anywhere else in the world. The presumption against extraterritoriality guards against our courts triggering such serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches.
Justices Alito and Thomas concurred to suggest an even narrower holding, that "unless the domestic conduct is sufficient to violate an international law norm that satisfies ... requirements of definiteness and acceptance among civilized nations," there would be no ATS jurisdiction even if it occurred here.

Justice Breyer, for the four justices you'd expect, would maintain access to the courts for cases with a stronger United States nexus, but not this one:

I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.
Pirates? Yar, where be pirates today?
The majority also writes, “Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction." I very much agree that pirates were fair game “wherever found.” Indeed, that is the point. That is why we asked, in Sosa, who are today’s pirates? Certainly today’s pirates include torturers and perpetrators of genocide. And today, like the pirates of old, they are “fair game” where they are found. Like those pirates, they are “common enemies of all mankind and all nations have an equal interest in their apprehension and punishment.” And just as a nation that harbored pirates provoked the concern of other nations in past centuries, so harboring “common enemies of all mankind” provokes similar concerns today.
But that's not enough for these plaintiffs, unfortunately:
The defendants are two foreign corporations. Their shares, like those of many foreign corporations, are traded on the New York Stock Exchange. Their only presence in the United States consists of an office in New York City (actually owned by a separate but affiliated company) that helps to explain their business to potential investors. The plaintiffs are not United States nationals but nationals of other nations. The conduct at issue took place abroad. And the plaintiffs allege, not that the defendants directly engaged in acts of torture, genocide, or the equivalent, but that they helped others (who are not American nationals) to do so.

Under these circumstances, even if the New York office were a sufficient basis for asserting general jurisdiction, it would be farfetched to believe, based solely upon the defendants’ minimal and indirect American presence, that this legal action helps to vindicate a distinct American interest, such as in not providing a safe harbor for an “enemy of all mankind.” Thus I agree with the Court that here it would “reach too far to say” that such “mere corporate presence suffices.”

Which leaves, yes, Justice Kennedy, with his own concurrence to make clear that he thinks this torture is bad, and there's plenty more cases he'd like to decide later:
The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.
(That's the entirety of the concurrence. The Court did not address the question for which cert was initially granted, as to whether liability for corporations existed under the ATS.)

In other lousy news, the Second Circuit on Tuesday largely rejected claims by 9/11 victims against the so-called charities, financial institutions, and individuals who are alleged to have financed al Qaida in the decade leading up to the attack, largely on grounds that their activities were neither intentionally directed towards nor took place here. The panel also rejected claims under the Anti Terrorism Act of 1991 seeking to find aiding-and-abetting liability for the financial institutions which al Qaida allegedly employed. Claims against 12 defendants remain, including various charity officials and other alleged individual financiers. To read the opinions, go here and search for docket number 11-3294. (I was involved in this litigation for seven years, and will keep my comments to myself.)

Originally posted to Adam B on Wed Apr 17, 2013 at 11:19 AM PDT.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics, Black Kos community, and Daily Kos.

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