When John Bellinger of Arnold & Porter was the legal adviser to the State Department in the administration of George W. Bush, the Justice Department filed about a dozen amicus briefs addressing the Alien Tort Statute, a 1789 law that has become a modern vehicle for international human rights litigation. Bellinger told me on Thursday that he signed every one. When foreign nationals use the ATS to bring cases in U.S. courts for conduct that took place overseas, foreign policy is implicated, and the State Department wants a voice. That’s why Bellinger believes it’s so significant that when the Justice Department filed its new amicus brief in the reformulated Kiobel v. Royal Dutch Petroleum case at the U.S. Supreme Court, State Department legal adviser Harold Koh did not sign it.
“That seemed to be a not-so-subtle message — more to the human rights community than the Supreme Court — that State did not agree with the Justice Department position,” said Bellinger, who blogged about the DOJ brief on Wednesday night at Lawfare. “The Obama administration was in a tight spot in this one.”
The DOJ brief, signed by Solicitor General Donald Verrilli, argues, tepidly, against the application of the Alien Tort Statute against Shell by Nigerian nationals who claim the oil company was complicit in state-sponsored torture and murder in their country. That’s a switch in sides for the government, which had supported the Nigerians in Kiobel‘s first trip to the Supreme Court, when the issue was whether corporations could be liable under the Alien Tort Statute. The Justice Department said they could, in an amicus brief that State Department adviser Koh signed.
But then the justices changed the question in Kiobel from corporate liability to whether the statute even extends to extraterritorial conduct in the first place. That wasn’t a novel issue for the Justice Department, which had argued in a 2004 amicus brief at the Supreme Court that ATS does not apply overseas (and, according to Bellinger, the Bush administration made the same argument in several other appellate courts as well). So the Obama DOJ was in a bind. To support the Nigerians, it would have to repudiate what Bellinger called “seven years of well-argued briefs” by previous Justice Department lawyers. But to support Shell, it would have to turn its back on the State Department and human rights advocates.
Verrilli and his team searched for some middle ground in a brief that truly deserves the overused description “tortured.” They argued that the ATS shouldn’t apply in Kiobel, which has no connection whatsoever to the United States. But the SG also said there’s no reason to establish an absolute bar on ATS litigation based on conduct on foreign soil. If a foreign official who allegedly engaged in torture now resides in the United States, for instance, that official can be sued under the ATS, according to the brief, because otherwise the United States might be perceived to be harboring the defendant. (Those were the facts in Filartigan v. Pena-Irala, the 1980 Supreme Court case that pioneered use of the ATS in human rights litigation.) “A close examination of the historical context and purposes of the ATS, the modern-day line of cases, and Congressional action suggests that there are circumstances in which it would be appropriate for a court to recognize a cause of action based on the ATS for violations of international law occurring outside the United States,” the brief said.