Posts Tagged ‘Alien Tort Statute’

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The Alien Tort Statute Under the Obama Administration: Executive Suggestions vs. Explicit Requests

December 9, 2009

On December 1st, the United States Government filed a Statement of Interest (SOI) [PDF] in defendants’ appeal from In re S. African Apartheid Litig., 617 F. Supp. 2d 228 (S.D.N.Y. 2009) to the Second Circuit, seeking reversal of the district court’s denial of the defendants’ motion to dismiss. The U.S. brief, in a turn around from its previously voiced opinions on the case, argues that the Second Circuit should decline to find jurisdiction and allow the litigation to continue in the district court.

Background on the case: The South Africa Apartheid Litigation — a combination of the Khulumani and Ntsebeza cases — has been winding its slowly through the courts for a few years, bouncing its way back and forth between the District Court and the Second Circuit. Plaintiffs have alleged that several major multinational corps are guilty of “aiding and abetting” the apartheid South African government, and eight years ago the plaintiffs brought suit under the Alien Tort Statute. After going back in the district court on remand, the defendants filed for dismissal, inter alia, on comity. They lost, and sought interlocutory appeal of the dismissal, with a hearing in the case set for January 6, 2010.

A major issue, however, is whether the Second Circuit can even hear the appeal of the dismissal. For interlocutory appeals, in addition to two other factors not at issue here, a decision by the district court must be effectively unreviewable on appeal from a final judgment.

The U.S. Government’s SOI asks the court of appeals to find it has no jurisdiction over the case because the U.S. has not explicitly asked for its dismissal. Therefore, according to the U.S., requiring defendants to wait until a final order in the case is given does not impair any of the U.S.’s interests (not the defendants’ interests), and accordingly jurisdiction for interlocutory appeal is not present. As stated in the government’s brief,

when a defendant seeks appellate review of a district court’s order denying a motion to dismiss a suit predicated on the adverse consequences on the Nation’s foreign relations, the court of appeals has jurisdiction under the collateral order doctrine only if the district court denied defendant’s motion despite the fact that the Executive Branch explicitly sought dismissal of the suit on that ground. The requirement of an explicit request for dismissal on foreign policy grounds by the Executive Branch is, in our view, critical.

The U.S.’s implicit endorsement of continuing the apartheid litigation was apparently precipitated by a letter recently sent by the South African Justice Minister [PDF]. Previously, South Africa has strenuously objected to having South African apartheid-era torts tried in American courts. However, in September, 2009, Minister Radebe wrote to the district court, unsolicited, stating that “[t]he Government of the Republic of South Africa, having considered carefully the judgement of the United States District Court, Southern District of New York is now of the view that this Court is an appropriate forum to hear the remaining claims of aiding and abetting in violation of international law.” Shortly thereafter, the U.S. filed its own SOI in which it evinced no objections to continuing the case. The impression given is that, once South Africa dropped its objections, all of the U.S.’s objections immediately evaporated as well — and that so long as the foreign sovereign involved is happy, the U.S. has no concerns of its own.

But something more is going on here. Despite the SOI’s careful language, which stresses repeatedly that the U.S. never “explicitly request[ed]” a dismissal, and its framing of earlier U.S. involvement as merely an attempt to express “concerns” about procedural scope, this is in reality a radical shift from the U.S.’s previous stance under the Bush Administration. Let’s take a look at what the U.S. had to say back in 2007:

“[i]t would be extraordinary to give U.S. law an extraterritorial effect in [these] circumstances to regulate [the] conduct of a foreign state over its citizens, and all the more so for a federal court to do so as a matter of common law-making power. Yet plaintiffs would have this Court do exactly that by rendering private defendants liable for the sovereign acts of the apartheid government in South Africa.” Brief of the United States of America Amicus Curiae Supporting Defendant-Appellees, at 21, Khulumani v. Barclay Nat. Bank, Ltd., 504 F.3d 245 (2d Cir. 2007).

This is not a statement given by a government that merely has “concerns” that can be easily resolved with a few tweaks. And according to Jack Goldsmith and Curtis Bradley, “This should have been enough for dismissal.”

However, because Obama inherited this case from Bush, he — or rather, his legal people — are trying to impose their new policy stances in a manner that is not blatantly inconsistent with previous government filings. So in the U.S. Government’s Dec. 2009 SOI, they are forced into using rather cagey language: “[t]he requirement of an explicit request for dismissal on foreign policy grounds by the Executive Branch is, in our view, critical.” Because Bush’s legal team forgot to preface its filings with the legal equivalent of ‘mother may I,’ the U.S. Government can now argue that despite all of their earlier protests and disagreements with allowing the litigation to continue, the government never actually wanted the case to be dismissed. A few years back in Sosa, the Supreme Court stated “there is a strong argument that the federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.” This statement still holds true, save that Obama is clarifying now that “the Executive Branch’s view” means only official requests — in other words, executive suggestions must now be phrased as executive demands.

Essentially, under the legal analysis offered by the government’s SOI, any opinions given by the U.S. Government in an ATS case will be treated as just another voice in the crowd (if perhaps a particularly loud one), unless and until the U.S. tells the Court, “Hey, hold up now, this time we’re actually being serious! We actually want it to be dismissed now! Consider this an explicit request!” If the U.S. opposes an ATS case but merely “reference[s] the adverse foreign policy consequences of recognizing plaintiffs’ claims,” [SOI, p. 10, referring to previous appellate briefs filed by the U.S. in Khulumani], then, according to the government’s filing, the U.S. is just making a legal argument acknowledging that foreign policy concerns exist, it is not actually invoking an Executive Branch smack down.

Unfortunately for Bush, he didn’t know about this new safe word. So instead of making an Official Executive Suggestion That the Court Stop Its Shenanigans, like he thought he was doing, Bush just gave the court a heads up on his personal legal opinion.

As for those wondering why the government’s opinion on the South African apartheid litigation has changed under Obama, well, remember — the State Department’s new legal advisor is Harold Koh, and it seems very likely that the U.S. Government’s brief was partially (or more) a result of his influence. Koh, prior to his current post, had joined a brief in the Khulumani case arguing for a broad aiding-and-abetting standard for corporate liability for complicity in foreign human rights abuses. And, as everyone knows, Koh’s also a Godless, U.N.-worshipping America-hater. With him in charge, the Obama Administration is getting ready to throw an Alien Tort Statute party, and all corporate human rights violators are invited. Until Obama explicitly says they’re not.

-Susan

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Alien Tort Statute Cases Resulting in Plaintiff Victories

November 11, 2009

Earlier today, I was hoping to find a list of Alien Tort Statute (ATS) cases that resulted in plaintiff victories of some sort or another — I figured that would be a pretty handy list to have for reference, so someone must have compiled it before. So while I’m sure another, better list does exist somewhere out there, my Google-fu was too weak to find it, and I had to go and make one myself.

This list is almost certainly incomplete, but it’s all I could scare up after a not-entirely exhaustive search, so if anyone knows of any I’ve missed, by all means tell me! As for total ATS cases ever filed, the official answer from a few sources seems to be “over one hundred,” without anything more specific; if anyone knows of a full listing of ATS cases ever filed, I’d be grateful if they could point me towards it.

A. Successful ATS Claims Against Non-Corporate Entities

  1. Bolchos v. Darrell, 3 F. Cas. 810 (D.S.C. 1795): Suit against French captain who captured a Spanish slave ship in 1794. Defendant was forced to return slaves or pay restitution.
  2. Adra v. Clift, 195 F.Supp. 857 (D.Md.1961): Iraqi mother found in violation of law of nations by refusing to return custody of daughter to her father, and for forging passports for her to be admitted to U.S. However, the Lebanese father was denied relief as court found it to be in daughter’s best interest to remain with mother.
  3. In re Estate of Marcos Human Rights Litigation, 978 F.2d 493 (9th Cir. 1993): This was the first ATS case to go to trial. Defendant liable to the class for over $766 million in compensatory damages, and $1.2 billion in exemplary damages.
  4. Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996): Bench Trial. Case against Ethiopian guard for torture and CITD, affirmed by the 11th Circuit. Plaintiffs each awarded plaintiff $200,000 in compensatory damages and $300,000 in punitive damages. Also note that one of the attorneys for the plaintiffs was Harold Koh.
  5. Alejandre v. Republic of Cuba, 996 F. Supp. 1239 (S.D. Fla. 1997): “Judgment entered on behalf of Plaintiffs and against Defendants the Republic of Cuba and the Cuban Air Force for total compensatory damages of $49,927,911. Judgment entered for Plaintiffs and against the Defendant the Cuban Air Force (only) as punitive damages, the sum of One Hundred Thirty Seven Million, Seven Hundred Thousand Dollars ($ 137,700,000). Total compensatory and punitive damages awarded to Plaintiffs $187,627,911, for which sum execution issued against the Defendants Cuba and the Cuban Air Force and against any of their assets wherever situated.”
  6. Cabello v. Fernández Larios, 205 F.Supp.2d 1325 (S.D. Fla. 2002), aff’d in 402 F.3d 1148 (11th Cir. 2005): Jury verdict on Oct., 2003. Murder of Chilean economist by one of Pinochet’s military commanders, descendants sue for, inter alia, crimes against humanity and CITD. $3 million in compensatory damages ($2 mill. for extrajudicial killing, $1mil. for CAH), plus $1 million in punitive. So far, plaintiffs have recovered $200,000. (Also worth interest — 1th Cir. cited to ICCPR in its decision. It also found Larios could be indirectly liable under either a theory of aiding and abetting or conspiracy.) (Further, defendant in case is the source of one of the creepiest threats I have ever heard: “I will caress the little pigeons.”)
  7. Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006): “The three plaintiffs in this case are Salvadoran refugees who were allegedly tortured by military personnel in El Salvador during a campaign of human rights violations by the Salvadoran military from 1979 to 1983; the two defendants were leaders in the Salvadoran military. All of the plaintiffs sought compensatory and punitive damages under the Torture Victim Protection Act; two plaintiffs sought the same relief under the Alien Tort Claims Act. A jury awarded the plaintiffs a total of $ 54,600,000, and the court entered judgments accordingly. The defendants now appeal, contending that the statute of limitations bars the plaintiffs’ claims. We conclude, based on the doctrine of equitable tolling, that the claims are not time-barred.” Although the 11th Circuit reversed its decision initially, after finding the reversal was based on certain factual errors, the jury verdict was upheld in the entirety.
  8. Jean v. Dorelien, No. 03-20161 (S.D. Fla.) (verdict issued Feb. 23, 2007): $4.3 million verdict. ($580,000 recovered to date).
  9. Chavez v. Carranza, W.D. Tenn. No. 03-2932 M1/P (Nov. 18, 2005) (aff’d by 6th Cir., 17 Mar 2009): Jury verdict for $6 million against commander liable for crimes against humanity.

B. Default Decisions Entered Against non-Corporate Entities

  1. Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984). $10.4 million judgment, as yet unenforced, for torture by Paraguayan official.
  2. Martinez-Baca v. Suarez-Mason, 1988 U.S. Dist. LEXIS 19470 (N.D. Cal. 1988): Defendant initially contested, but default judgment in end.
  3. Paul v. Avril, 901 F. Supp. 330(S.D. Fla. 1994): Default after defendant decline to participate. Defendant Avril, then the elected mayor of Port-au-Prince, Haiti, was found to have “personal responsibility for a systematic pattern of egregious human rights abuses in Haiti during his military rule of September 1988 until March 1990. He also bears personal responsibility for the interrogation and torture of each of the plaintiffs in this case. All of the soldiers and officers in the Haitian military responsible for the arbitrary detention and torture of plaintiffs were employees, representatives, or agents of defendant Avril, acting under his instructions, authority, and control and acting within the scope of the authority granted by him. Many of the tormentors included members of the Presidential Guard and Avril’s personal security detail.” The court granted $41 million in compensatory and punitive damages to six Haitian victims of torture and false imprisonment.
  4. Xuncax v. Gramajo and Ortiz v. Gramajo, 886 F. Supp. 162 (D. Ct. Mass. 1995): Suit by Kanjobol Indians against former Guatemalan Defense Minister. Default judgment award, $47.5 million. Court sustained claims for torture, summary execution, disappearance, and arbitrary detention as obvious bases of ATS jurisdiction, but called cruel, inhumane, and degrading treatment as a “closer question,” before ultimately accepting it.
  5. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995): Default decision on the merits — jury determined damage award of $745 million.
  6. Mushikiwabo v. Barayagwiza, 1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. 1996): Incitement to genocide, based on Rwanda. $103 million awarded.
  7. Mehinovic v. Vuckovic, 198 F.Supp.2d 1322 (N.D. Ga. 2002): Default decision on merits – $140 million.
  8. Doe v. Saravia, 348 F. Supp. 2d 1112, 1156-57 (E.D. Cal. 2004): Case involved the 1980 assassination of Salvadoran Archbishop Oscar Romero (go watch the movie Romero!). ATS liability found for crimes against humanity and extrajudicial killing. Default judgment of $10 million judgment ($5 million compensatory, $5 million punitive). (Note of interest: trial court cited to ICTY cases, as well as to Rome Statute. Court cites credibility of Rome Statute by noting that “four of the five members of the Security Council” have signed it. But irrelevant that U.S. has not.)
  9. Doe v. Liu Qu (N.D. Cal. 2004): Declaratory relief granted.
  10. Reyes v. Grijalba (S.D. Fl. 2006): $47 million to six plaintiffs .
  11. Doe v. Constant (SDNY 2006): Defendant was a leader of a Haitian political police force used to “repress and terrorize” the civilian population. Damages at $4 million total compensatory, $15 million punitive. ($300,000 recovered so far). Point of interest: During a deposition, Constant stated, “I’m not a member of F.R.A.P.H. I’m a leader of F.R.A.P.H.” I am guessing that did not help his case. Also note that the charges in the ATS case were also relevant to his sentencing for a mortgage fraud conviction in People v. Constant, 842 N.Y.S.2d 255, (2007).
  12. Mwani v. Bin Ladin, Mwani v. Bin Ladin, 244 F.R.D. 20 (D.D.C. 2007): Plaintiff, 523 Kenyan citizens, brought an action under the Alien Tort Claims Act (ATCA), 28 U.S.C.S. § 1350, for harm sustained as a result of a truck bomb exploding outside the United States Embassy in Kenya allegedly at the direction of defendants, a terrorist organization and its leader. The citizens filed a motion to set a date for ex parte proof and for entry of default judgment under Fed. R. Civ. P. 55 against defendants. Court later allowed for evidentiary hearing on damages, but found no right to jury trial on the issue.

C. Successful ATS Claims Against A Corporation

  1. Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355 (S.D. Fla. 2008): Defendant did make an appearance but refused to defend himself. Plaintiffs were awarded $80 million in damages total. “The Defendant in this case, one of the largest drydock companies in the Western Hemisphere, with tens of millions if not hundreds of millions of dollars in annual revenues, conspired with the Republic of Cuba to force Cuban citizens to travel to facilities the Defendant owns in Curacao, to hold them in captivity there, and to force them to work repairing ships and oil platforms.” The court also found that an ATS claim was sustainable as, “Forced labor constitutes a violation of a well-established, universally-recognized norm of international law. It is widely recognized as one of the handful of serious claims for which the ATS provides jurisdiction in U.S. district courts regardless of where it occurred. It is a brutal offense condemned by the civilized world. This Court is compelled to act strongly to punish and deter it.”
  2. Chowdhury v. Worldtel Bangladesh Holding, Ltd., 588 F. Supp.2d 375 (E.D.N.Y. 2008) (Aug. 2009): Plaintiff’s verdict for $1.5 million compensatory damages and $250,000 in punitive damages. Appeal planned.

D. Ongoing Claims

  1. Lizarbe v. Rondon, 642 F. Supp. 2d 473 (D. Md. 2009): Claims arise out of defendant’s participation in the Peruvian “Accomarca Massacre.” Defendant filed for dismissal based on personal jurisdiction, statute of limitations, immunity under FSIA, exhaustion of remedies, political question doctrine, act of state doctrine, failure to state a claim, that plaintiffs were nor “aliens,” whether venue was proper, and whether plaintiffs had standing as personal representatives for decedents’ estates. The District Court denied them all, and the certificate of appealability was likewise denied.

E. Plaintiffs Receiving Out of Court Settlements for ATS Claims Against Corporations or State Actors

  1. Jama v. U.S. I.N.S., 22 F.Supp.2d 353 (D.N.J. 1998). Court granted motion to dismiss of ATS claims against INS, but denied motion to dismiss against INS agents in their personal capacity. (Judge must’ve been predicting Samantar.) Later, United States settled some of the claims including ATS claims.
    The settlement agreement provided: “In this Settlement Agreement, plaintiffs and the government defendants settle any and all claims filed against the INS and/or the United States, including those stated in the first amended complaint filed on September 23, 1997, in Jama, et al. v. INS, et al., Civ. No. 97-3093 (DRD) (D.N.J.) (the “lawsuit”), alleging, inter alia, tort liability for damage to property and for emotional damages, violations of United States obligations under various international treaties, and violations of the Religious Freedom Restoration Act of 1993 (RFRA).” No word on how much the settlement was for.
  2. Doe v. Unocal, 248 F.3d 915 (9th Cir. 2001): Undisclosed Sum, various sources cite “millions.”
  3. Wang Xiaoning vs. Yahoo!: Undisclosed, but did cover Plaintiff’s legal fees.
  4. Wiwa v. Shell, 2009 U.S. App. LEXIS 11873(2d Cir.) (June 3, 2009): $15.5 million settlement.
  5. Abiola v. Abubakar, 2008 U.S. Dist. LEXIS 2937 (N.D. Ill., Jan. 15, 2008): “Based on discussions with the parties, it appears that the settlement in the case, the amount of which is evidently confidential, is being funded by the government of Nigeria, which is not a party to the lawsuit. It further appears that the government of Nigeria is the driving force behind the request to vacate the June 27, 2006 decision. The parties have adopted the request because it appears to be important, and perhaps necessary, to finalize the settlement.”

F. Defeated ATS claims after jury trial

  1. Ford v. Garcia, aff’d in 289 F.3d 1283 (11th Cir. 2002), cert. denied, 537 U.S. 1147, (2003): (TVPA) Jury trial held October, 2000, verdict to Defendants due to apparent constraints in jury instructions. First jury verdict in a contested trial under the TVPA only.
  2. Romero v. Drummond Co., 552 F.3d 1303, 2008 U.S. App. LEXIS 25861 (11th Cir. Ala., 2008): Verdict given July, 2007, finding Drummond not liable for deaths of the three union representatives.
  3. Bowoto v. Chevron, 312 F. Supp. 2d 1229 (N.D. Cal. 2004).

    4. In December 2008, a jury unanimously found for Chevron. Chevron then, somewhat ridiculously, requested attorney’s fees, which the court denied, noting allowing the Defendant to recover fees would have a “chilling effect” on future human rights litigation. The court was not particularly impressed with the request that Nigerian villagers should pay a billionaire corporation for its attorneys fees, as seen from the following discussion:

    Defendants argue that plaintiffs have not provided sufficient evidence to establish that plaintiffs are indigent. According to defendants, plaintiffs should also have provided the court with evidence of their assets. Defendants’ objection is not well taken. It can reasonably be assumed that plaintiffs do not earn pensions or accrue other significant assets through their work as, for instance, fish sellers in a Nigerian village. Defendants also argue that, because of the low cost of living in Nigeria, plaintiffs’ incomes “place them well above the average.” [FN2: Defendants cite a World Bank resource that lists the gross national product of Nigeria as amounting to $ 930 per capita in 2007]. While the Court accepts that the cost of living is lower in Nigeria than in the United States, defendants’ bill of costs seeks reimbursement for witness per diems, service of subpoenas, court reporters, videotaping, transcription, and photocopying in this county. The lower cost of living — and correspondingly lower incomes — in Nigeria would therefore suggest that plaintiffs are less able, not more able, to pay these fees, which are calculated according to U.S. standards. The Court finds that the declarations filed in conjunction with the instant motion, as well as evidence at trial about the abject poverty of villagers in Nigeria’s Ondo State, is sufficient to establish that plaintiffs are indigent. Bowoto v. Chevron Corp., 2009 U.S. Dist. LEXIS 38174 (N.D. Cal., Apr. 22, 2009).

  4. Hawa Abdi Jama v. Esmor Corr. Servs., 2009 U.S. App. LEXIS 17950 (3d Cir. N.J., Aug. 12, 2009): Jury trial, no liability under ATS.

Updated, July 3, 2010: Still slowly working my way through updating this list, although it remains incomplete. I’m working on a master list of all ATS cases — wins, losses, and settlements — which is about halfway done, and eventually I’ll post that up instead.

-Susan

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Magic Bomb Wands, Corporate Liability, and the Alien Tort Statute

November 9, 2009

Continuing with the discussion from a previous post, there are currently a number of companies, many of them based in the UK, selling fraudulent bomb and narcotic testing devices to nations such as Iraq, Mexico, and Thailand. These “bomb detectors” are worthless, although the governments who purchase them believe they can do all sorts of miraculous feats, based upon the manufacturers’ claims. As a result of the sniffer devices’ failure to detect the presence of bombs, and the subsequent failure of authorities to identify and prevent the detonation of car bombs and other explosive devices, documented human deaths have resulted.

Potentially, then, fraudulent sniffers such as the ADE651 and the GT200 provide the basis for a civil claim in U.S. courts against the devices’ manufacturers, based upon the Alien Tort Statute (ATS).

Under Sosa v. Alvarez-Machain, the ATS provides a jurisdictional basis for causes of action that are “specific, universal, and obligatory.” This means, roughly, violations of international law such as torture, genocide, slavery, crimes against humanity, and other acts of a similar level of “badness” can be targeted (“subject to vigilant gatekeeping,” etc.).

While fraud on its own, with only commercial damages, clearly won’t qualify as the sort of international norm violation that creates ATS jurisdiction, fraud on the scale of the GT200 or ADE651 that leads, directly or indirectly, to human deaths is more in line with previous international law violations that U.S. courts have recognized as valid ATS causes of action. But showing that the sale of fraudulent bomb detectors is a tort in violation of international law isn’t the only obstacle — any would-be ATS plaintiff would also have to contend with the fact that Global Technical and other producers of the dowsing rods are private corporations run by private individuals. Although corporate liability under the ATS been the subject of intense scrutiny over the past few years, and gallons of academic ink have been spilled in debating the validity of corporate responsibility for human rights violations, almost all previous ATS cases have been based upon some sort of joint venture theory, alleging that a corporation bears secondary liability as a result of the corporation’s joint action with or aiding and abetting of a state actor.

Although ATS jurisprudence is currently in the midst of Circuit disarray, if the Supreme Court accepts the cert petition pending before them for Pfizer v. Abdullahi, we should get a much better idea on how the issues in a hypothetical ADE651 case would play out.

The two major legal hurdles in Pfizer v. Abdullahi would be similar to the two predominant issues in an ADE651 case, although the facts between the two differ significantly. First, did the companies that produced the dowsing rods violate an international norm capable of violation by a private party, or, if not, did they act sufficiently in concert with foreign states so as to be considered a “state actor”? Second, is the selling of fraudulent and potentially deadly ‘bomb detectors’ a violation of international law which is actionable under the Alien Tort Statute?

Can selling fraudulent bomb detectors result in private actor liability?

Starting with Kadic, ATS suits against a private actor must show either (1) the tort does not require state action to be a violation of international law, or (2) if state action is required, whether the private actor can be hooked for joint action or aiding and abetting with a state actor. From Unocal, the best precedent we have to date, we have a rough guide that although most violations of international law can only be conducted by states and not individuals, certain “egregious” acts are a violation of CIL even if conducted by a private party. Such acts include slavery, genocide, and war crimes, or, to a limited extent, other bad acts (like rape) that are committed in furtherance of the primary egregious crimes, like genocide.

Whether or not international law violations by private actors will always be limited to that category is uncertain; at any rate, not-completely-ludicrous arguments could be made that the act of knowingly procuring dangerous military equipment for foreign states that results in needless civilian deaths is a violation of international law even absent state complicity.

Even if the above can’t be shown, a joint act or aiding and abetting theory of liability would still be a possible option. From the facts know, there does appear to be substantial evidence that state governments have been acting in concert with dowsing rod suppliers to carry out the scheme. From the original article,

Aqeel al-Turaihi, the inspector general for the Ministry of the Interior, reported that the ministry bought 800 of the devices from a company called ATSC (UK) Ltd. for $32 million in 2008, and an unspecified larger quantity for $53 million. Mr. Turaihi said Iraqi officials paid up to $60,000 apiece, when the wands could be purchased for as little as $18,500. He said he had begun an investigation into the no-bid contracts with ATSC.

Essentially, there is a conspiracy going on here between ATSC, Ltd. and the Iraqi government to sell useless plastic objects at a grossly inflated price. From here, it isn’t too far a leap to reach the conclusion that ATSC knowingly sold dangerously defunct equipment to corrupt government officials, therefore placing civilians in imminent danger due to their faulty belief that they will be able to know when explosives are present.

Recently in The Presbyterian Church of Sudan v. Talisman Energy, Inc., the Second Circuit announced that “the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone.” In contrast to most other ATS cases, showing that an ADE651 defendant possessed the requisite mental state will not be a particularly tricky proposition. I think it’s a more than fair assumption that ATSC and Global Techniques’ owners know damned well that the products they are selling are worthless snake oil, and that it wouldn’t be all that difficult to convince a jury of that fact.

Granted, dowsing rod producers could argue that their “purpose” was simply to sell a product, not commit human rights violations. The Talisman case was dismissed “because plaintiffs presented no evidence that the company acted with the purpose of harming civilians.” However, this is not the case of a corporation engaging in a legitimate business in a region where its partners conduct human rights abuses as a means of carrying out that business enterprise. As with the Zyklon B Case , you can’t argue you aren’t guilty of genocide because you “only intended to sell lice-remover,” when you know damned well your customers ain’t concerned with delousing.

A bigger concern would be that it appears the governments that are buying ADE651 sensors genuinely believe the devices work as advertised. Therefore, the States do not have the necessary intent of purposefully or knowingly endangering their population. So in essence, ATSC is only assisting governments to engage in corrupt acts — they are not aiding and abetting a state’s intentional endangerment of its citizens. At the very least, that would rule out Conspiracy liability, which requires furtherance of a “joint purpose.” However, although it’d take a lot more space to discuss the issue than I have here, I’m going to assume for now that courts are not going to accept the “it’s not a violation of international law because we were tricking states into killing their own citizens” defense. (And anyway, if the Court takes cert on Pfizer, we’ll shortly have an authoritative answer on the question of whether there can be corporate liability when there’s only cursory state involvement.)

Was there a violation of a norm of international law with the requisite specific, universal and obligatory character?

I’ve been jumping the gun a bit by asking whether or not ATSC or Global Techniques can be held up on a theory of primary or secondary liability. That’s all meaningless until it’s also shown that the tort they are alleged to have committed is also a violation of a “norm of international character accepted by the civilized world and defined with a specificity comparable to the features” of such founding-era international crimes of piracy and beating up diplomats for sport.

Courts have held that the specificity and ease of definition of the international norm alleged to be violated are the “meat and potatoes” of ATS claims. Courts don’t really like plaintiffs with harebrained theories alleging that a corporation’s random activities violated a nebulous “right to health” or “right to not have their environment destroyed,” or other similar claims.

In Pfizer, the tort that plaintiffs alleged was committed in violation of international law is “the norm against nonconsensual medical experimentation.” Thanks to Nuremberg and the general legacy of the Holocaust, for the Pfizer plaintiffs, it will be slightly easier to prove that international law prohibits experimenting upon humans without their consent, and possibly that this norm is so firmly entrenched as to be capable of violation by private actors alone. Throw around the word “Mengele” a few times, and heck, you might even cause Scalia to at least pause for a couple seconds before he goes ahead and rejects the claim.

In contrast, there is not really any similar international condemnation of “selling bomb detecting devices that don’t work.” So the norm used as the basis of the tort will necessarily be of a more generalized character, based either in humanitarian or human rights law. Although humanitarian law might offer some possibilities, at least in Iraq or for other cases where the dowsing rods are bought for use in quasi-combat zones, that would still be pretty tricky to pull off. Though not completely analogous, the problems of applying war crimes to private military contractors shows the sort of international legal morass that results in. Or, if you wanted to get even more creative, you might borrow provisions from the Rome Statute, such as Art. 8(2)(b)(xx), which prohibits “employing… materials and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering.” Selling and using phony bomb detectors is, if you squint at it funny, employing materials that cause unnecessary suffering to civilians who are killed or maimed in resulting bomb blasts.

As for human rights violations, they are probably just as unsatisfactory. Although a “right to security” appears in seven international and regional human rights treaties, such as Art. 9(1) of the ICCPR, these norms are “universal but not obligatory,” and thus do not provide a firm enough basis for ATS claims.

Still, many ATS claims have been brought alleging violations of international norms far stranger than the ADE651 hypo. Like the suit against UAE officials for abuses of underage camel jockeys, Mother Doe ex rel. R.M. v. Al Maktoum, (S.D. Fla., July 30, 2007)(and no, “underage camel jockeys” is NOT a euphemism), and claims against companies selling bulldozers that were used to mow down Palestinian buildings, Corrie v. Caterpillar, Inc., (9th Cir. 2007). So it wouldn’t be the most objectionable ATS claim ever brought, at least, and if Pfizer does go before the Supreme Court, and an expansive opinion is returned (highly unlikely), then there would be plenty of wiggle room available for an ADE651 case to be brought forward. However, as things currently stand, the odds of such an ATS suit succeeding are not particularly good.

-Susan

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The ADE651 Bomb Detector Fraud and the Potential for an Alien Tort Statute Claim

November 5, 2009

This article in the New York Times,* on the worthless bomb-detective divining rods currently being used by Iraqi forces to deter terrorists, might provide the basis for an extremely interesting lawsuit under the alien tort statute. Assuming you could get personal jurisdiction, and ignoring the fact that practically speaking there are much better alternatives out there, could an alien suffering some kind of legal injury bring suit in the U.S. against the manufacturer of the device?

The bomb-sniffing rod at issue in the NYT article is the “ADE651® device,” produced by ATSC, Ltd., a UK company. The device is essentially a divining rod or ouija board; it has no external power source, no apparent means of explosives detection, and is only operable by those who have been “carefully trained” in its use. Oh, and Iraq has apparently spent $85 million on them.

The Lebanon distributor of the ADE651, Prosec, provides this handy picture of the device, along with the accompanying description:

“The range of detection is around 50 meters with obstacles and up to 600 meters in outdoor areas, the unit can also detect explosives submerged in water or buried underground. Detection from a hovering helicopter is also possible.”

The Prosec spokesperson then added, “It can also receive free cable, make perfectly popped popcorn every time, and roast a 9 lb. turkey in under an hour.”ade651 snakeoil

The principle behind ADE651′s ability to detect explosives has been variously described as “electrochemical (Thermo-Redox) detection,” “nuclear quadrupole resonance,” “electrostatic ion attraction,” or, as Jim McCormick, the owner of ATSC, explained it, “The principal is Electrostatics. It is more akin to Coulomb’s Law than Gauss’.”

Now, where would the Alien Tort Statute (ATS) claim lie in all of this? Clearly in a purely US-domestic matter this would be grounds for a pretty heavy fraud action, but the ATS is not an open ended jurisdictional grant. It provides only 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.”

So in the hypothetical of a case brought by an Iraqi against ATSC, Ltd., the “by an alien” requirement is clearly met, as is the “for a tort only” requirement, as fraud can be the basis of a tort claim. However, given current ATS jurisprudence, fraud is not the kind of tort that is “committed in violation of the law of nations or a treaty of the United States.”

So rather than the ADE651, a better test case would be provided by the GT-200, which is by produced by Global Technical, a UK corporation. (Global Technical, by the way, alleges on its website to be a “United Nations Registered Supplier.” Anyone out there know what the hell this means? I’m assuming it’s fraudulently made up by Global Technical, in which case the UN needs to do something about it now.) The GT-200 is a dowsing rod device much like the ADE651. It needs no external power source and runs off of the “electro-static electricity” created by the human holding it.

The FAQ of the product contains the following gems:

Q: Can GT200 detect all types of narcotics and explosives?
A: Yes.

Q: Is there anything that can stop or block the GT200 from detecting substances?
A: To date, we have not found anything that will totally block or stop the substance signal being detected.

Q: What is the maximum distance that the GT200 can detect?
A: The detection distance for general search is up to 700 meters. It can detect substances in water (fresh or salt) up to a depth of 850 meter. In the case of buried substance it can detect up to 60 meter deep. For aerial reconnaissance, the distance extends to 4 kilometers.

While fraud is clearly at work with the GT-200, there’s something else important about it as well: the deaths of three policeman in Thailand have been attributed to the ‘malfunction’ of a GT-200:

As for an explosive-detection device, called the GT-200, that malfunctioned in detecting bombs and preventing an attack, the police chief said he would discuss with technicians, but needed more information before commenting.

A fourth death caused by the device occurred last month, also in Thailand:

Recently, the GT200 showed false negative results on 6 October 2009 at a bombing near Merlin Hotel, Sungai-Kolok district, Narathiwat province which caused one death and several injuries, as well as on 19 October 2009 during a bombing at the Pimonchai market, Muang district, Yala. During these two incidents, officials were called beforehand to check a car and motorcycle under suspicion. The device was not able to detect any dangerous substances. The bombs exploded a few minutes after the examinations.

Unlike the hypothetical case alleging mere commercial fraud, if the GT-200 can be attributed to human deaths, whether in the course of war or in police actions, the jurisdictional basis for a claim under the alien tort statute just got a whole lot stronger.

Next up: Magic Bomb Wands, Corporate Liability, and the Alien Tort Statute.

Update: Jim McCormick, chief director of the company that makes the ADE651, has finally been arrested.

-Susan

*This is completely unrelated to anything above, but while writing this post I was amused to find that the author of the NYT piece apparently did some of his own research on web message boards, as you can see from his post here, asking one of the forum contributors (“DubiousDick”) to contact him. Isn’t contacting random internet commenters for a story something blogs do, rather than major national newspapers?

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