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Washington�In the wake of a recent U.S. Supreme Court ruling, big business and human rights groups are preparing to battle over just how wide the door remains open to federal court suits by aliens with foreign human rights claims. They disagree that last week’s decision requires dismissal of recent pending suits against corporations, such as one against oil giant Unocal for alleged slavery, rapes and murder in the construction of a pipeline in Myanmar. But they agree that the justices painted a “big bull’s eye” on a suit in New York against corporations for alleged abuses during the apartheid regime in South Africa. “If there are very specific and limited circumstances where international law has been violated, there may be appropriate instances where those claims can be adjudicated,” said Daniel M. Petrocelli of O’Melveny & Myers, who filed an amicus brief on behalf of the National Foreign Trade Council and other corporate interests in the high court case. “These are not the sort of claims that have been brought against American companies and certainly not claims brought against Unocal,” he insisted. “I’m not sure either side really knows that,” said human rights litigator Paul L. Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman of Venice, Calif. “I think what the court is saying is they are only opening the door to claims that have very solid support in international law,” he added. “Our corporate claims do have that and deal with very serious human rights violations.” Hoffman represented Humberto Alvarez-Machain in the high court case, Sosa v. Alvarez-Machain, No. 03-339, and U.S. v. Alvarez-Machain, No. 03-485. The justices were asked whether Alvarez-Machain could recover damages against the United States and Mexican national Jose Sosa under the Federal Tort Claims Act and the Alien Tort Statute (ATS) for his kidnapping from Mexico by Sosa and others at the instigation of the Drug Enforcement Administration. Alvarez-Machain was brought to the United States and acquitted in a criminal trial of charges that he assisted in the torture and murder of a DEA agent. Although the case had nothing to do with corporations, it galvanized the business community, which has been up in arms over the spate of lawsuits under the ATS in the last decade charging corporations with human rights violations committed abroad. The high court denied relief to Alvarez-Machain under both statutes. But the court also rejected arguments by business and the Bush administration that any claim for relief under the ATS, a jurisdictional statute only, requires a separate statute by Congress expressly authorizing a cause of action. International law scholars and others say Hoffman and his supporters lost the battle but won the war in the Alvarez-Machain case. Whether that is true will be learned as pending cases unfold. Last week, the high court in its decision allowing Guantanamo Bay detainees access to federal courts on their habeas challenges said those courts also had jurisdiction to hear their claims under the ATS. Rasul v. Bush, No. 03-334. And the Center for Constitutional Rights, whose litigation more than 20 years ago awakened the long-dormant Alien Tort Statute, recently filed an ATS suit in California on behalf of former prisoners at Iraq’s Abu Ghraib prison against two corporations that provided interrogation and language services at the prison. “They discovered the planet Pluto by seeing strange aberrations in the orbits of other planets around Pluto,” said international law scholar William Casto of Texas Tech University School of Law, whose writings were cited by the court in Alvarez-Machain. “I think there’s a Pluto in this opinion and obviously it’s the war on terrorism.” The ATS, also known as the Alien Tort Claims Act, originally appeared in Section 9 of the first Judiciary Act of 1789, which created the U.S. judicial court system. The statute provides that “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 act was largely dormant until 1982, when the 2d U.S. Circuit Court of Appeals decided Filartiga v. Pena-Irala, 630 F.2d 876. Represented by lawyers at the Center for Constitutional Rights, Dolly Filartiga filed a civil suit under the ATS against her brother’s murderer, the former Inspector General of Police in Asunci�n, Paraguay, seeking compensatory and punitive damages. Her lawyers argued that just as piracy was a violation of the law of nations when the ATS was enacted, torture was a crime against the law of nations in 1979. The 2d Circuit agreed. Since then, there have been three waves of alien tort litigation: Filartiga-type cases�torture, killing or disappearance abroad committed by one alien against another alien; suits against U.S. corporations and some foreign corporations for participating in human rights abuses abroad; and suits against U.S. government officials or those acting at their direction, a wave that now includes the Abu Ghraib abuse litigation. In the high court last week, Justice David H. Souter, writing for a 6-3 court, carefully examined the history, cases and other legal materials surrounding the ATS. He rejected the government’s “stillborn” argument about the ATS. He said that “there is every reason” to suppose that the first Congress did not pass the ATS as a jurisdictional convenience “to be placed on the shelf” for the future when a Congress might authorize the creation of causes of action. History, he added, indicates that the ATS furnished jurisdiction for a relatively modest set of actions alleging violations of the law of nations, such as assaults on ambassadors, violations of safe conduct and piracy. In the last two centuries, Souter said, Congress has done nothing to preclude federal courts from recognizing a claim under the law of nations. “Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th Century paradigms we have recognized,” he held. Souter also directed that courts be extremely cautious in recognizing new causes of action, that they consider whether a claimant has exhausted any remedies available in the domestic legal system, and give serious weight to the executive branch’s view of the impact on foreign policy. The latter factor, he noted, was particularly relevant in the litigation, In re South African Apartheid Litig., 238 F. Supp. 2d 1379 (J.P.M.L. 2002), where both the U.S. and South African governments have said the litigation interferes with domestic and foreign policy. Causes of action The court’s ruling was the first substantive high court decision on the ATS in the statute’s history, said international law scholar William Aceves of California Western School of Law. “I think there are going to be a subset of international claims that are universal and that are well defined,” he said. “When you begin to focus on these very narrow claims, you can readily identify them-genocide, torture, summary execution, slavery.” Human rights activists, he predicted, will not disregard the high court’s concern about the foreign policy implications of this litigation, which could doom ATS claims filed by Guantanamo detainees. But, he added, courts should balance that concern with the reality that Congress has spoken and believes these lawsuits should proceed. Aceves noted that the Bush administration has increased the number of occasions where the government has intervened in ATS litigation. And, he added, the administration has intervened almost exclusively on behalf of multinational corporations. O’Melveny’s Petrocelli said he expects many of the ATS cases against corporations to be dismissed as a result of the high court ruling. In Unocal, for example, which is pending in the 9th Circuit, he said plaintiffs are trying to hold the corporation vicariously liable for actions by Burmese soldiers guarding the pipeline construction against Burmese residents. Those are local claims, he said. Paul Kamenar of the Washington Legal Foundation agreed, adding that the high court decision “would certainly take care of Unocal and cases like it where you have this third-party liability tort action so attenuated it would not be recognized at federal common law.” Many of the suits against corporations involve claims of violations of international law and could subject government officials to liability under the statute, said Casto. “The real issue is not whether there is a cause of action against the government or individual officers, but whether we are going to create a cause of action for conspiracy or aiding and abetting that would bring in U.S. corporations,” he said, adding that only English-speaking countries recognize the conspiracy theory. But Hoffman said, “There’s no reason to believe vicarious liability claims or complicity claims will not succeed. Claims against industrialists go back as far as Nuremberg.” Casto and others believe the justices had the war on terror clearly in mind as they decided the ATS case. In rejecting Alvarez-Machain’s ATS claim for arbitrary arrest, said Casto, how could the justices not be thinking of a possible kidnapping by the United States of Osama bin Laden in a foreign country and the arrival of enemies of the U.S. in the federal courts to sue American officials? And in allowing the courthouse doors to remain open to some ATS claims, he added, certainly the justices had the Abu Ghraib situation on their minds and the Department of Justice’s torture memo. “Do we give the president carte blanche when this is the sort of advice he is receiving from his lawyers, when we know there are instances of beatings and even death?” Casto said the justices may have thought. “They don’t want the president to feel there is no possibility of judicial review.”

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