The next Citizens United, in the view of some of that decision’s most vigorous critics, may have nothing to do with campaign finance or the First Amendment.

Instead, corporations in a case the justices will hear this month seek not to spend their money but to avoid doing so by arguing that they have no liability under a 1789 statute for torts committed abroad in violation of international law or U.S. treaties.

The case, Kiobel v. Royal Dutch Petroleum Co., involves the Alien Tort Statute (ATS) and is scheduled for argument on Feb. 28. Kiobel will be heard in tandem with Mohamad v. Palestinian Authority, which raises a similar question involving claims against non-natural persons under a different statute — the Torture Victim Protection Act. Kiobel starkly pits the business community against human rights organizations.

“What is being asked of federal courts in these ATS cases is to create an international law not just for American corporations, which would be one thing, but international law for all foreign corporations that we could get jurisdiction over,” said international law scholar Michael Ramsey of the University of San Diego School of Law. “I don’t think that’s a role for federal courts or what the ATS was intended to do.”

But Katherine Gallagher of the Center for Constitutional Rights, which pioneered Alien Tort Statute litigation, countered, “Citizens United recognized rights of corporations. It’s important in this case that we’re also discussing obligations of corporations. It is particularly important as we see multinational corporations operating across borders and we see the role corporations now have globally and here at home.”

Galvanizing Corporate America

The Alien Tort Statute, 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. 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 1980 when the U.S. Court of Appeals for the 2d Circuit decided Filartiga v. Pena-Irala. Represented by lawyers at the Center for Constitutional Rights, Dolly Filartiga filed a civil suit under the Alien Tort Statute against her brother’s murderer, the former Inspector General of Police in Ascension, Paraguay, seeking compensatory and punitive damages. Her lawyers argued that just as piracy was a violation of the law of nations when the Alien Tort Statute was enacted, torture was a crime against the law of nations in 1979 when her brother was murdered. The 2d Circuit agreed.

Since then, there have been three waves of alien tort litigation: the prototypical Filartiga case — 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 included the Iraq Abu Ghraib prison litigation.

In 2004, the Supreme Court ruled in its first substantive look at the scope of the Alien Tort Statute in Sosa v. Alvarez-Machain. The justices were asked whether Alvarez-Machain could recover damages against the United States and Mexican national Jose Sosa under the Alien Tort Statute and the Federal Tort Claims Act for his kidnapping from Mexico by Sosa and others at the instigation of the Drug Enforcement Administration. Alvarez-Machain was brought to the U.S. and acquitted in a criminal trial of charges that he had assisted in the torture and murder of a DEA agent.

The high court denied relief to Alvarez-Machain under both statutes. But the justices also rejected arguments by business and the then-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.

Although the case had nothing to do with corporations, it galvanized the business community, which saw a serious threat in the increasing number of Alien Tort Statute lawsuits charging corporations with human rights violations committed abroad.

Writing for the Sosa majority, Justice David Souter said history indicates that the Alien Tort Statute 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. Since Congress had done nothing in more than 200 years to preclude federal courts from recognizing a claim under the law of nations, he wrote, “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.”

Ground Shifts

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