Tuesday, May 7, 2013

Why US courts won't be hearing cases involving torture so much anymore

In Kiobel v. Royal Dutch Petroleum (No. 10-1491, April 17, 2013), the Supreme Court unanimously decided that US federal courts could not hear a case contending that Royal Dutch Petroleum and Shell Transport and Trading Company had violated the law of nations by helping Nigerian troops ferociously suppress opposition to the companies' oil extraction activities in the Ogoniland region of Nigeria.

That's an important decision, and a debatable one, but as I said all 9 justices of the Supreme Court agreed on it. What they didn't agree about was the rationale.

The dispute among the justices can be summed up bluntly: they disagreed about whether US courts could hear a case about torture, if the torture took place outside the US. (If some justices did feel torture outside the US could be the basis for a suit - as they did - why was the court unanimous about rejecting this case? The answer is that the lawsuit wasn't brought against the alleged government wrongdoers, but only against private entities accused of aiding them. Bad as aiding another government's "atrocities" is, no one on the Court saw it as a sufficient basis for federal court action.)

What was the basis of the justices' disagreement? Much of what they say is focused on a rather dry legal question: does the "presumption against extraterritoriality" apply to interpretation of the Alien Tort Statute? That statute, 28 U.S.C. 1350, on the books since 1789, reads as if it allows anyone to sue anyone, in US court, for violations of international law. But the presumption against extraterritoriality says that ordinarily Congress' statutes should be assumed to be aimed at regulating events in the US, not abroad. If that presumption applies to the Alien Tort Statute, then the law's seemingly broad language would be read much more narrowly.

The strongest argument against applying this presumption to this statute is that everyone agrees that one thing the statute was meant to allow is suits against pirates, and pirates undoubtedly acted primarily outside the US - so Congress must have wanted to act extraterritorially at least to some extent.

But what about torturers? Chief Justice Roberts, writing for the majority, says that "pirates may well be a category unto themselves," whose legal status has no lessons for the treatment of other wrongdoers today. Justice Breyer and three other liberal justices maintain, in contrast, that torturers are today's pirates, "'common enemies of all mankind,'" and equally within the statute's reach.

But the most startling point the majority makes has very little to do with the pirate analogy. Instead, it is the observation that accepting this lawsuit "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 in the world."

This observation is quite correct. Justice Breyer argues that a number of limiting doctrines that he would apply "should obviate the majority's concern," but I don't think he is right. if the United States has a special interest in not becoming a sanctuary for torturers, as he argues, then so would other countries. And it is one of the undeniable  legacies of the past decade of war that there are quite a number of Americans, including former President George W. Bush and former Vice President Dick Cheney, who were involved with conduct, notably water boarding, that many people in the world regard as torture.  

Whether that reality justifies reading the Alien Tort Statute narrowly can be debated. The majority argues for such a narrow interpretation so as to leave to today's lawmakers the question of whether to now write an expansive statute whose existence might encourage other nations to claim similar authority over Americans. We might think, instead, that those who adopted this statute in 1789 already made the decision about how to position the US with respect to international law, and that they did not anticipate, and so did not seek to guard against, the possibility that we would someday find ourselves on the wrong side of international law.

But what is clear is that we have arrived very much on the wrong side of the law, in the view of many people around the world. And our fear of Americans' being haled into court around the world now seems to contribute to our own courts stepping back from contributing some measure of justice in suits against other enemies of all mankind. That result strikes me as yet another of the sad results of our losing our bearings in the war on terror.

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