2. Ashcroft vs. the Human Rights Law that Holds Corporations Accountable

by Project Censored
Published: Updated:

Title: “Ashcroft goes after 200-year-old human rights law”
Author: Jim Lobe

Faculty Evaluator: Meri Storino, Ph.D.
Student Researchers: Brian Ferguson, Lawren Lutrin

Attorney General John Ashcroft is seeking to strike down one of the world’s oldest human rights laws, the Alien Torts Claim Act (ATCA) which holds government leaders, corporations, and senior military officials liable for human rights abuses taking place in foreign countries. Organizations such as Human Rights Watch (HRW) vehemently oppose the removal of this law, as it is one of the few legal defenses victims of human rights violations can claim against powerful organizations such as governments or multinational corporations. The attempt to dismiss the law comes less than a year after the Ninth Circuit Court of Appeals ruled that Unocal Corporation could be held liable for human rights abuses committed against Burmese peasants near a pipeline the company was building. By attempting to throw out this law, the Bush Administration is effectively opening the door for human rights abuses to continue under the veil of foreign relations.

The ATCA dates back to 1789 when George Washington signed legislation for an anti-piracy bill. An obscure segment of the bill gave foreign citizens the right to sue in United States courts over violations of international law. After being used only twice in its first two hundred years of existence, the law has been the basis of some 100 lawsuits since 1980. A landmark ruling in that same year awarded a Paraguayan woman $10 million dollars for the torture and murder of her brother committed by a Paraguayan police official, who was living illegally in the U.S. That ruling effectively opened the door for foreign citizens to seek justice through litigation in U.S. courts.

Business groups argue that human rights lawyers and courts that interpret the ATCA too broadly have wrongly exploited the law. The Bush Administration agrees stating the law interferes with foreign policy. Non-citizens would be allowed to file lawsuits that could potentially embarrass foreign governments the U.S. needs cooperation from in the war on terrorism. Critics of recent ATCA suits also argue that the original statute provides no actual authority to file suit and only paves the way for Congress to do so – should it adopt a separate act defining which violations can be addressed in court.

According to a Wall Street Journal article, upholding the law could jeopardize aspects of the war on terrorism. “A U.S. government employee or contractor working in a high-risk law enforcement, intelligence of military operation could be sued for their participation,” says Mark Rosen, a retired U.S. Navy captain and specialist in defense and homeland-security issues.

UPDATE BY JIM LOBE: The Foreign Tort Claims Act has been used as an important tool for human rights activists to keep raising the issue of impunity for severe abuses committed abroad, ordinarily by repressive governments, but increasingly by the U.S. and other corporations that are at the least, condoning abusive practices by local governments and their security forces. At the end of March, for example, a federal judge in San Francisco refused to throw out claims that the Chevron-Texaco Corporation might be liable for abuses at a Nigerian oil platform operated by a subsidiary of the company. Of course, Unocal and Exxon Mobil face similar suits.

ATCA – or more accurately the campaign against ATCA – has drawn increasing attention over the past two years. In fact, I’ve seen some recent ads on the New York Times op-ed page attacking ATCA on behalf of a coalition of multinational corporations.

A number of lawsuits are continuing to make it through the federal judicial system, but only one has reached the Supreme Court. It involves a lawsuit brought under ATCA by a Mexican national who was kidnapped by bounty hunters and taken to the U.S. where he was held – wrongly – in connection with the murder of a DEA agent in Mexico. He sued the US government and the bounty hunter under ATCA. A jury awarded him $25,000 in damages. For more on this case, which could be very important to ATCA’s fate, I refer you to a New York Times piece written on March 31, 2004, by Linda Greenhouse, which summarizes the oral argument and background. At the same time, Dolly Filartiga, the plaintiff in the first ATCA case from 1980, had an op-ed in the New York Times on March 30, 2004, entitled ‘American Courts, Global Justice.’

Some background is also included in an editorial in the Washington Post published a week later (4/6/04) called ‘Human Rights in Court.’

Unocal’s case was re-argued to appeals judges sitting en banc just about one year ago, but a decision has not yet been rendered. It usually takes about a year, but there is speculation. The appeals court also wants to wait until the Supreme Court decides the Mexico case.

There has been some coverage of the Unocal case in the mainstream media but mainly about the state court case, which doesn’t rely on ATCA. There has been much more attention paid to what ATCA is and why it is being attacked.

Earth Justice and the Center for Constitutional Rights are extremely involved in the campaign against ATCA. For more information, these organizations, as well as the Human Rights Watch, are good sources.