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Looking past government arguments that the primary tool for vindicating overseas human rights abuses in U.S. courts should be put to rest, an en banc panel of the Ninth Circuit U.S. Court of Appeals focused instead on what standards courts should use when analyzing the Alien Tort Claims Act. In a case involving Unocal Corp.’s investment in a Myanmar natural gas pipeline project, 11 judges focused on whether the company should be held liable for the government-sanctioned use of forced labor, rape, torture and murder to help build the pipeline through rural communities that sometimes resisted its construction. Unocal argues that it had no control over that country’s military. It was clear that the panel was looking past the case at bar and forward to how similar cases should proceed, if at all. A win by Unocal could curtail a growing area of litigation where human rights advocates are attempting to hold U.S. corporations accountable for their actions abroad through the ATCA. “We think that aiding and abetting [liability] has been a part of the Alien Tort Claims Act since the beginning,” said Paul Hoffman of Venice’s Schonbrun, DeSimone, Seplow, Harris & Hoffman, who represents several anonymous Burmese citizens who have looked to U.S. courts to vindicate their rights. “There isn’t any doubt that aiding and abetting has been used in the most egregious crimes.” The ATCA is more than 200 years old, but the act lay dormant until 20 years ago. It gives federal courts jurisdiction over any tort arising under U.S. treaties or “the law of nations” — no matter where the alleged activities took place. Human rights lawyers have used it to win judgments against despots such as Bosnian Serb Radovan Karadzic and Ferdinand Marcos of the Philippines, but lately the act has been used against corporations that do business with similarly repressive regimes. Last year a three-judge panel, led by Judge Harry Pregerson, held that the case against Unocal could go to trial. But Judge Stephen Reinhardt wrote separately to argue that, although violations of international law can give rise to cases under the ATCA, courts should use federal common law principles in determining the nuts and bolts of liability. That was the question under scrutiny Tuesday. Reinhardt argued against relying on new and evolving standards of international law, which sometimes derive from ad hoc international tribunals. Implementing timeworn federal common law standards, his concurrence implied, would be a choice of order over chaos. Judge Alex Kozinski picked up on that after Hoffman argued that international standards could be appropriate. Kozinski pointed out that they are sometimes far more relaxed than federal common law. “A tribunal that comes up with a standard that includes ‘moral support’ maybe isn’t a great authority to incorporate into our law,” Kozinski said. It is a seemingly unusual position for the liberal Reinhardt to argue for a more restrictive reading of a law that human rights groups have spent two decades expanding. “The concurrence has many aspects that are commendable,” said Unocal lawyer M. Randall Oppenheimer, a partner at O’Melveny & Myers. “It has notions of control.” But Reinhardt went further and suggested that the standard to apply to aiding and abetting liability should be civil, not criminal — making it easier for plaintiffs to prove their case. However, the district court (and, seemingly, a handful of judges on Tuesday’s panel) took that a step further. Since the case involves actions of the military, the lower court compared the claims to civil rights litigation against police officers — a kind of civil law boomerang that makes the case, once again, much more difficult to bring. Unocal has publicly adopted that argument. The company has compared its situation with the hypothetical owners of a refinery within the scandal-ridden Ramparts Division of the Los Angeles Police Department. And so, Oppenheimer argued, “we have the benefit of 1983 [civil rights] jurisprudence,” and it should be implemented. Reinhardt was not willing to go that far. “Isn’t the law developed in a wholly different context?” he asked. There’s no democracy in Myanmar, he pointed out. The police aren’t controlled by the people. The government argued in a brief that the ATCA merely provides jurisdiction but no cause of action. ATCA cases, it argued, interfere in an area of foreign policy that should not be the province of the courts. But two weeks before the decision, another Ninth Circuit en banc panel decided, 6-5, to allow a suit to go forward under the ATCA that was brought by a Mexican doctor abducted in Mexico at the direction of the Drug Enforcement Agency. The doctor was wanted for his alleged role in the torture and murder of a DEA agent. Alvarez-Machain v. United States, 03 C.D.O.S. 4624, effectively foreclosed that line of argument. That didn’t stop Oppenheimer from trying to make the argument. Several times when he was asked about aiding and abetting standards, he responded with the caveat that he was only engaging the question hypothetically, since he believes the case cannot be brought under the ATCA. The judges seemed to pay little mind to his protestations. The rest of the panel — Chief Judge Mary Schroeder and Judges Pamela Rymer, Thomas Nelson, Susan Graber, M. Margaret McKeown, William Fletcher, Raymond Fisher and Johnnie Rawlinson — struggled with finding legal standards for ATCA cases. Overall, they seemed interested in reaching the same goal Reinhardt argued for in his concurrence — order. At one point, McKeown even told Hoffman that his proposals seem “to have no predictability or uniformity.” In conclusion, plaintiff lawyer Terrence Collingsworth, of the International Labor Rights Fund, argued in Doe v. Unocal, 00-56603, that the standards mattered little. “We meet any standard that has been discussed here today,” Collingsworth said. With that, Collingsworth began poring over facts supporting his position that Unocal knew the pipeline would involve forced labor. Kozinski, who spent most of the day listening, stepped in with a hypothetical. What if Unocal simply sent one ship, docked it at a harbor and paid the government for a shipment of natural gas? “It seems to me that what you’re proposing has no limits,” Kozinski said. What about people who buy shoes made in overseas sweatshops? Would they be liable under the plaintiff’s aiding and abetting theory? Collingsworth said no, pointing to a level of coordination between the government of Myanmar and Unocal. “This went on for seven years,” Collingsworth concluded.

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