Suing tyranny?

by Bob Jones IV
World Magazine
April 10, 2004
On March 30, Sudanese Christians finally got their day in court – along with Afghan prisoners of war, Burmese peasants, South American union organizers, and the mothers of Tiananmen Square.

With little fanfare and few picketers, the Supreme Court heard oral arguments in what could be its most far-reaching case ever. If the court sides with the Bush administration to limit the little-known but much-abused Alien Tort Claims Act, it would shut literally billions of potential litigants out of the American justice system.

That’s exactly what needs to happen, according to Carter G. Phillips, the attorney for one of the plaintiffs in the case. “There are too many cases creating too much havoc for no good reason,” he told the court. “Enough is enough.”

The case was so complicated that the court devoted 90 minutes to oral arguments instead of the usual 60. Media outlets, on the other hand, devoted almost no resources to covering an issue that seemed arcane and esoteric. A 200-year-old law originally passed to deal with piracy on the high seas hardly seemed newsworthy compared to recent cases on the Pledge of Allegiance, abortion, or campaign finance.

But human-rights watchers insist that ATCA is literally a matter of life and death for millions around the world. At a Washington press conference on the eve of oral arguments, Dolly Filartiga held up a plastic-covered book, displaying a gruesome photo of a body notched with bloody wounds. As she pointed the book directly into the lenses of the cameras that surrounded her, she bit her lip to keep it from quivering. The body was that of her 17-year-old brother, tortured and killed in 1976 because his father was an outspoken critic of Paraguayan dictator Alfredo Stroessner.

With the help of human-rights organizations, Ms. Filartiga filed a U.S. lawsuit seeking damages from the police inspector who killed her brother. They filed under the Alien Tort Claims Act, a 1789 law that claimed American courts had jurisdiction in “any civil action for an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Originally passed to curb piracy, the one-sentence law had never been used and was long since forgotten. But the Filartiga lawyers argued that brutal regimes violated “the law of nations” in the 20th century just as surely as pirates had in the 18th century. An American court agreed: Although the murder had occurred in Paraguay and the victim was a Paraguayan citizen, it awarded the Filartiga family $10 million.

“I came to this country in 1978 hoping simply to confront the killer of my brother,” Ms. Filartiga said. “I got so much more. With the help of American law I was able to fight back and win. Truth overcame terror. Respect for human rights triumphed over torture. What better purpose can be served by a system of justice?”

In the wake of the Filartiga suit, ATCA quickly became a favorite tool of left-leaning lawyers seeking to use American courts to enforce American-style human rights around the world. Mothers whose children had been run over by tanks at Tiananmen Square had their lawyers serve papers on Chinese Prime Minister Li Peng during a visit to New York. Similar suits were filed against Zimbabwe’s Robert Mugabe, Haiti’s Jean Bertrand Aristide, and Serbian strongman Radovan Karadzic.

When lawyers discovered it was all but impossible to recover multimillion-dollar awards from individual wrongdoers, they turned their attention to a new target: multinational corporations. The list of defendants in the two dozen or so ATCA lawsuits currently pending in federal courts reads like the Fortune 500: Coca Cola, Ford, GM, ExxonMobil, Chevron, Texaco, Pfizer. One suit alone names some 100 companies that did business in apartheid-era South Africa, claiming they were “vicariously liable” for the actions of the white government. Damages could run well into the tens of billions of dollars.

Paul L. Hoffman, representing a Mexican doctor who sued the government after he was kidnapped with the help of the U.S. Drug Enforcement Agency, told the high court that settling such lawsuits is the proper role of the American justice system. “All we’re asking is that courts be allowed to perform the kind of function courts have performed for hundreds of years – provide damage remedies for violations of personal rights,” he said.

But critics like James Copland say ATCA has been abused by “cowboy law professors who want to hijack U.S. human-rights laws. They exploit U.S. courts to get their preferred policies implemented without having to worry about the State Department or Congress.”

Mr. Copland, director of the Center for Legal Policy at the Manhattan Institute, says the current rash of ATCA lawsuits is politically similar to the suits against tobacco companies, gun manufacturers, and fast-food chains. “Activists are not realizing their goals through the political process, so they’re going to the courts. They’re circumventing the democratic process. . . . There’s a fee-driven component, of course, but there’s also a feeling of ‘I want to be the secretary of state’ among these lawyers.”

The real secretary of state, of course, has to worry about international protocol and the concerns of sovereign nations – details that lawyers and judges have little time for. Administration officials fear that setting up U.S. courts as the international arbiter of human rights merely invites reprisals from countries with different views of what constitutes right and wrong. Already several Afghan prisoners of war are suing under ATCA, but if American judges turn down their claims, they could simply shop around for an international court that’s friendlier to their cause. Likewise, Saddam Hussein might sue for damages in, say, France, arguing that he is the victim of an unlawful invasion.

The specter of foreign courts interfering in U.S. foreign policy led the Bush Justice Department to ask the Supreme Court to sharply limit the application of ATCA. As the law is currently interpreted, ATCA “threatens the United States’ ability to conduct law enforcement operations abroad to combat terrorism and international crime,” Solicitor General Theodore Olsen wrote in his friend-of-the-court brief.

Despite all the problems with the ATCA statute, some religious conservatives have mixed feelings about seeing it overturned. It was an ATCA lawsuit, after all, that helped put Sudan’s persecution of its Christian minority in the international spotlight. The case, Presbyterian Church of Sudan vs. Talisman Energy, pits Sudanese Christians against Canada’s largest private energy company. The Christians charge that Talisman built roads and an airport used by the Sudanese army in its brutal crackdown against non-Muslims in the south, in addition to providing vehicles and fuel to the army.

After years of fighting the charges in court, Talisman finally withdrew from Sudan, dealing a big financial blow to the radical Islamic government in the north. That didn’t end the oil company’s troubles, however. A federal court ruled in late March that the Christians’ lawsuit against the company should go forward, and damages could total millions of dollars.

With reporting from Priya Abraham in Washington.

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