Entity Liability Under the TVPA and the ATS: Why the Supreme Court’s Decision in Mohamad Is Probably Irrelevant to Kiobel

Last week, the Supreme Court issued its opinion in Mohamad v. Palestinian Authority, et al., the TVPA case that was argued on the same day as Kiobel. The majority opinion, written by Justice Sotomayor, is a rather prosaic summary of Statutory Interpretation 101, and the opinion as a whole deftly avoids grappling with any of deeper questions of law that the TVPA could potentially implicate.

This is not entirely surprising, as the question before the court in Mohamad was relatively straightforward: does the TVPA’s authorization of suit against “[a]n individual” extended liability only to natural persons? The Court unanimously answered yes, citing the dictionary as its predominant authority for its conclusion. The Court also relies heavily on the perceived “ordinary usage” of the word ‘individual,’ noting that “no one, we hazard to guess, refers in normal parlance to an organization as an ‘individual.’”

Although Mohamad may be a heavily formalistic opinion, it is a hard to disagree with its conclusions. Given then TVPA’s structure, there just isn’t much need, or room, for nuance. Justice Breyer, in the decision’s only concurring opinion, did make a mild qualification of his decision, noting that the TVPA’s use of the specific word “individual” is insufficiently determinative by itself to justify a limitation on liability to natural persons. Breyer quickly moves to conclude, however, that the legislative history of the TVPA erases any doubt, and fully supports the Court’s ultimate decision.

In all likelihood, then, the decision in Mohamad will not give us much insight into how the Court will handle the question of corporate liability under the Alien Tort Statute. Although Mohamad v. Palestinian Authority, et al. and Kiobel v. Royal Dutch Petroleum have strong superficial similarities — a similarity plainly acknowledged by the Court through its decision to hear arguments for both on the same day — it seems likely that the Court’s ultimate decisions in those cases will have little relevance to one another. Sotomayor’s opinion in fact openly acknowledges the two cases’ dissimilar postures, noting that the ATS “offers no comparative value here regardless of whether corporate entities can be held liable[.]“

This is because entity liability under the TVPA, as addressed in Mohamad, involves a straightforward question of statutory interpretation. Entity liability under the ATS, in contrast, involves an extremely convoluted question of statutory interpretation coupled with an equally convoluted interpretation of  the law of nations. It doesn’t matter which side of the argument you take in Kiobel — for that, you’re never going to find the answer to prove your case in the pages of a dictionary.

And the statutory interpretation element is the less important prong, in examining the question of entity liability under the ATS. As the class of defendants is not defined by the ATS, the issue of corporate liability is not determined by reference to the legislator’s choice of language, but rather by reference to either Federal common law or to international law, or, more likely still, to some admixture of both.

Ultimately, the TVPA, unlike the ATS, is an almost purely domestic instrument. Although the TVPA indirectly incorporates international law in its definition of extrajudicial killing, and, in its preamble, specifically cites that the statute’s purpose is to carry out the U.S.’s obligations under international treaties, the TVPA is simply not a creature of the law of nations.

The TVPA was specifically designed by the U.S. Congress to accomplish certain specified domestic goals. If instead the TVPA had been drawn directly from international instruments, however, it seems very likely that a different conclusion would have been reached in Mohamad. In particular, Article 14 of the UN Convention Against Torture (“the CAT”) would seem to lobby in favor of vicarious liability in civil claims brought by torture victims:

 “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”

The CAT’s specification that states are to implement civil claims that provide for “an enforceable right to fair and adequate compensation” suggests that the CAT is concerned not simply with imposing punitive, quasi-criminal measures against torturers, but rather with implementation of an effective means for torture victims to be compensated for their injuries. A system of vicarious liability for torture is therefore more consistent with goals of the CAT as expressed in Article 14, as this would increase the likelihood of full reparations being made to torture victims. This is because vicarious liability is specifically geared towards making tort victims whole, whereas a system of pure individual liability emphasizes concern at seeing a wrong-doer punished.

Instead of incorporating this broad goal of repairing torture victims to the fullest extent possible, as articulated by the CAT, the U.S. Congress made plain its desire to see that only morally culpable wrong-doers were to be held financially culpable under the TVPA. This same legislative background is nonexistent when it comes to the ATS, however, making the Court’s analysis in Mohamad irrelevant to their ultimate determination of the similar question posed by Kiobel.

-Susan

Why Royal Dutch Petroleum is Wrong About the Liability of Pirates, Inc.

During the Kiobel oral arguments, following a discussion between Breyer and counsel for the Respondents Royal Dutch Petroleum/Shell regarding whether corporations could ever be liable under international law, the example of “Pirates, Inc.” was predictably trotted out for a hypothetical test drive. Justice Breyer asked Shell whether Blackbeard could have avoided liability for any claims on his booty from pirate victims bringing civil actions against him, simply by turning his pirate enterprise into an incorporated entity. Respondents answered with an emphatic “yes,” claiming that damages for a tort alleging piracy in violation of the law of nations were limited to the value of the ship that carried out the piracy:

JUSTICE BREYER: […] Do you think in the 18th century if they’d brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, oh, it isn’t me; it’s the corporation — do you think that they would have then said: Oh, I see, it’s a corporation. Good-bye. Go home.

MS. SULLIVAN: Justice Breyer, yes, the corporation would not be liable.

[…]

JUSTICE BREYER: What source have you for that proposition?

MS. SULLIVAN: [L]ook to Justice Story in U.S. v. Smith, cited in the Respondents’ brief at footnote 12. It looks to piracy. And piracy is allowed — in rem actions. You could seize the ship with which the piracy was committed, as you could later slave trading ships. But you could not seize another ship, and you could not seize the assets of the corporation.

But Royal Dutch Petroleum was mistaken in its account of civil liability for piracy; both international law and U.S. law have repeatedly held that just the opposite is true.

As an initial matter, Respondents’ citation to U.S. v. Smith is inapposite. In rem jurisdiction plays no part in that case; rather, it concerned jurisdiction to define the crime of piracy.

But Respondents were also wrong in asserting that civil liability for piracy was limited to the value of the ship that made the illegal capture. Yes, in rem jurisdiction did play a part in admiralty and prize law, but not in the context Respondents are asserting. Eighteenth century U.S. case law is clear: the owners of ships that violate international law are liable to the full extent of the damage caused. You could indeed seize another ship beyond the one that engaged in the piratical act, and any other assets of the principal besides, to recover for damages caused by the torts of an agent.

In any event, Pirates, Inc. is a poor hypothetical for considering questions of corporate liability, because the way 18th century law dealt with pirates was a rather strict affair, leaving little room for derivative liability to play a significant role: when you captures pirates, you don’t sue them, you simply kill them and claim their booty for your own. A better example would be Privateers, Inc. — because such entities did in fact exist in the 18th century, and owners of privateers were frequently sued for the acts of the privateer’s captain. As discussed in a previous post, New York state law authorized the incorporation of privateer enterprises, and before that, the Dutch West India Company, unlike its cousin the Dutch East India Company, was a notorious 17th century example of a corporation whose primary source of profits was privateering, not trade. Privateering, although legal, was regulated by the law of nations, and unauthorized captures were a violation of that law, and a frequent source of disputes. Moreover, in many cases, ships that portrayed themselves as “privateers” while in port often had little compunction about turning pirate on the high seas, if a tempting enough opportunity were to arise. And whether it involved incorporated privateers or unincorporated groups who owned or held shares in privateers, owners’ of privateers were frequently held to have derivative liability for their privateers’ breaches of the laws of nations.

The law in this regard was not uniform, and there was some deviation in domestic practice, but the overwhelming weight of authority provided for agency liability for violations of international law. Bynkershoek, for example, in Questions of Public Law (1737), Book I, Chapter 19, discusses a decision that reached an opposite conclusion. He then goes on, however, on to state that such a holding was plainly incorrect, as owners of privateer ships that have made a wrongful capture “are to be held liable until complete reparation has been made.” Although bondsmen — whose only role is to post a security bond for the privateer at the start of the voyage — cannot be liable beyond the amount of their bond, the owner of a ship in violation of the laws of nations is liable in full:

[I]f the owner sent the captain out to take prizes, and he carries out his commission wrongfully, the owners are liable to the full amount of the damage caused. The captain who takes prizes under a commission is appointed for that purpose, and he who appoints him is by the act of appointment liable for all, whether good or bad, that his appointee does under the commission. Thus we permit an actio institoria against the owner of a shop who has placed an agent in charge of it, and if the agent has made a contract we do not distinguish in what manner he has made it. In the same way we give an exercitorian action against the owner of a vessel for the act of a captain, provided the captain was acting in a matter for which he was engaged; for if he was not, he does not bind the owner, as Ulpian has fully explained. The appointment is the sole cause why owners of shops and of ships are bound: that is to say, they are liable if the act was committed in the performance of a task for which the agent was appointed, but not otherwise. He who has placed a captain on a privateering vessel, knows that the captain’s duty was to make captures, and if the captain performs this task improperly, the fault lies with the owner who employed an unskilful and dishonest man for the task. If a captain, having borrowed money for the repairing of his ship, applies it to his own use, Ofilius properly says: ‘the owner is liable, and must impute it to himself that he employed such a person.’ With this agrees the opinion of the States-General expressed in their decree of October 22, 1627: ‘that the shipowners must take care to employ good captains.’

If owners of shops and of vessels are responsible for the acts of their agents, it is evident that they are responsible to the full extent of the damages, and that they are not discharged by the surrender of the shop or the vessel in question. I do not remember that I have ever read an opinion contrary to this; nor would such an opinion be reasonable, since those who are responsible for the acts of their agents are responsible to the full extent; hence owners of vessels are liable to the full for unjust captures made by their captains.

See also Blackstone, Book I, Ch. VII (“Therefore, to encourage merchants and others to fit out privateers or armed ships in time of war, by various acts of parliament, the lord high admiral, or the commissioners of the admiralty, are empowered to grant commissions to the owners of such ships; and the prizes captured shall be divided according to a contract entered into between the owners and the captain and crew of the privateer. But the owners, before the commission is granted, shall give security to the admiralty to make compensation for any violation of treaties between those powers with whom the nation is at peace.”).

And Justice Story, in The Amiable Nancy, 3 Wheaton 546 (1818), contrary to Respondents’ assertions regarding Smith, outright rejected the idea that the wrongful acts of a privateer are limited to in rem damages. Story did agree, however, that punitive damages, being intended as a punishment, may only be issued against the moral actors responsible for the conduct:

Under such circumstances, the honor of the country and the duty of the court equally require that a just compensation should be made to the unoffending neutrals, for all the injuries and losses actually sustained by them. And if this were a suit against the original wrong-doers, it might be proper to go yet further, and visit upon them, in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. But it is to be considered, that this is a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet from the nature of the service, they can scarcely ever be able to secure to themselves an adequate indemnity in cases of loss. They are innocent of the demerit of this transaction, having neither directed it, nor countenanced it, nor participated in it, in the slightest degree. Under such circumstances, we are of opinion that they are bound to repair all the real injuries and personal wrongs sustained by the libellants, but they are not bound to the extent of vindictive damages.

This rule had previously been laid out by the Supreme Court in Del Col v. Arnold, 3 U.S. 3 Dall. 333 (1796):

[T]he right of seizing and bringing in a vessel for further examination, does not authorize or excuse any spoliation or damage done to the property, but that the captors proceed at their peril, and are liable for all the consequent injury and loss. On the third point, that the owners of the privateer are responsible for the conduct of their agents the officers and crew to all the world, and that the measure of such responsibility is the full value of the property injured, or destroyed.

James Kent, in his Commentaries on American Law (1826), likewise agreed that the American rule required Privateers, Inc. to be liable to the full extent of damages caused, although in his view this was a rule that could be modified by domestic law:

It has been a question, whether the owners and officers of private armed vessels were liable in damages for illegal conduct beyond the amount of the security given. Bynkershoek has discussed this point quite at large, and he concludes that the owner, master, and sureties are jointly and severally liable, in solido, for the damages incurred; and that the master and owners are liable to the whole extent of the injury, though it may exceed the value of the privateer and her equipment, though the sureties are bound only to the amount of the sums for which they become bound. This rule is liable to the modifications of municipal regulations; and though the French law of prize was formerly the same as the rule laid down by Bynkershoek, yet the new commercial code of France exempts the owners of private armed vessels in time of war from responsibility for trespasses at sea, beyond the amount of the security they may have given, unless they were accomplices in the tort. The English statute of 7 Geo. II. c. 15, is to the same effect, in respect to embezzlements in the merchants’ service. It limits the responsibility to the amount of the vessel and freight, but it does not apply to privateers in time of war; and where there is no positive local law on the subject (and there is none with us), the general principle is, that the liability is commensurate with the injury. This was the rule as declared by the Supreme Court of the United States, in Del Col v. Arnold; and though that case has since been shaken as to other points, it has not been disturbed as to the point before us. We may, therefore, consider it to be a settled rule of law and equity, that the measure of damages is the value of the property unlawfully injured or destroyed, and that each individual owner is responsible for the entire damages, and not ratably pro tanto.

In short, Pirates, Inc. and Privateers, Inc. would both have been civilly liable for their agents’ torts in violation of international law. Although they would not have been morally culpable if they had not personally authorized the violation, and were therefor immune from punitive measures, they nevertheless remained civilly liable in cases where domestic principles of agency law would attribute liability to them.

-Susan

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

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

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

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?