June 9, 2003

JOE KATZMAN IS SAVAGING JOHN ASHCROFT for defending — well, indirectly — the use of forced labor in Burma. A commenter to Joe’s post asks for “non-commentary sources” describing the subject. Here’s an article from the Boston Globe on the subject. Excerpt:

For the past 23 years, federal courts have allowed victims of torture and other abuse to file claims under an obscure 1789 statute for violations of human rights norms, commonly known as the Alien Torts Claims Act.

Since a 1980 civil suit against a former Paraguayan police chief accused of torturing and killing a teenage boy, lawsuits have been filed against Ferdinand Marcos, former Philippine president; Bosnian Serb leader Radovan Karadzic; Al Qaeda terrorist leader Osama bin Laden; and banks and other companies alleged to have profited from Nazi war crimes.

But the Justice Department, reflecting an emerging view among conservative legal scholars, argues in a 30-page brief that such lawsuits frequently have no connection to the United States and may complicate foreign policy objectives by targeting allies, including nations helping to fight terrorism. . . .

The government brief was filed in the San Francisco-based US Court of Appeals for the Ninth Circuit in a case involving a gas pipeline in Burma. It said the law ”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 were incurred in a foreign country, often with no connection whatsoever with the United States.”

The filing has prompted an outcry from human rights groups and some lawyers within the State Department, who say that such lawsuits should be encouraged. American University law professor Diane Orentlicher said the brief amounted to ”a profound reversal” on the part of the US government, which has previously been supportive or remained neutral in many alien torts cases.

”There are legitimate questions to be raised about some of the interpretations by some of the courts,” Orentlicher said. ”But what they’ve done with this brief is like treating a mosquito bite by cutting off your arm.”

I think Ashcroft’s position on this is wrong, and that it shouldn’t be that hard to distinguish between bogus and real suits. On the other hand, the willingness of “international human rights” activists who are really anti-American to abuse human rights claims has become pretty apparent, with efforts to prosecute Tommy Franks, Tony Blair, etc. in Belgium. And the story makes clear that the Bush Administration has become hostile to this sort of thing because it fears “activists” using it as a tool to harass the United States’ anti-terrorism efforts.

So while I think that Ashcroft is wrong, I have to note that when a currency is debased, it becomes worth less. The currency of international human rights has been debased. And as a result, it’s worth less. Back when I took International Human Rights Law I remember the professor warning about pushing things too far — the case in question, Filartiga, was pretty new then — and this is why.

UPDATE: Prof. Paul Stephan, who teaches this stuff at the University of Virginia Law School, emails:

With all respect, Glenn, what the Justice Department is saying is that the position of the Second and Ninth Circuits, which the D.C. Circuit has opposed and the Seventh has doubted, rests on an implausible act of judicial lawmaking unhinged from an relevant act of Congresss. The so-called Alien Tort Claims Act is a product of judicial imagination; the 1789 statute from which it is claimed to be derived did something completely different. The Unocal case illustrates the shortcomings of this litigation strategy, apart from its lawlessness: The Burmese government is not being sued because it has sovereign immunity, and otal SA, the big oil company in bed with the Burmese government, is out of the suit because it has no contacts with California. So Unocal, which has a minority interest in a joint venture and no active management role, is subjected to millions of dollars of litigation costs and potential liability. No other country in the world authorizes such litigation. The U.S. civil justice system is wonderful, but more is not necessarily better.

Fair enough. Meanwhile reader John Allison emails:

Geez, I’m with the justice dept on this one with the caveat that I think they could have made the point in the filing that the brand spanking new ICC in Brussells would be much better suited to this sort of suit. That is what they claim to be there for, right? RIGHT?!

Uh, right. Right after they allow a suit against TotalFina ELF.

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