On April 24, the United States Supreme Court ruled in Jesner v. Arab Bank that foreign citizens cannot sue foreign corporations for civil damages in U.S. federal courts for serious violations of international law, such as torture or extrajudicial killings. See Jesner et al. v. Arab Bank, PLC, No. 16–499, slip op. (April 24, 2018). The case was brought against Arab Bank by victims of several terrorist attacks occurring in Israel and the occupied territories. See id. at 1. The plaintiffs alleged that Arab Bank supported numerous terrorist attacks, including those that harmed the victims, by knowingly providing financial services to terrorists, such as accepting deposits it knew were donations used to fund the attacks and pay money to the families of suicide bombers. See id. at 1-3. The plaintiffs brought their case under the Alien Tort Statute (ATS), which provides that United States federal courts may hear cases, brought by non-nationals, of tort committed in violation of international law. See id. at 1-2. The ATS is an exercise in universal civil jurisdiction, as it extends domestic judicial jurisdiction over actions that occurred abroad to foreign plaintiffs; it has historically been a means for non-U.S. citizens to seek redress for serious human rights violations committed outside of the U.S., although the Jesner decision and previous rulings limit the scope of the statute. See, e.g., Jesner, No. 16–499, slip op. at 1; Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). Notably, the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum limited the scope of the ATS to cases that touch and concern the United States with sufficient force to overcome a presumption against the U.S. extending jurisdiction extraterritorially. See Kiobel et al. v. Royal Dutch Petroleum et al., 569 U.S. 108 (2013); Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). International human rights bodies disagree over whether States must exercise universal civil jurisdiction over specific human rights abuses, mainly torture, that occurred abroad and by a foreign defendant. [IJRC] See Naït-Liman v. Switzerland [GC], Judgment of 15 March 2018; CAT, General Comment No. 3 (2012), UN Doc. CAT/C/GC/3, 13 Dec. 2012, paras. 22, 26.
Category Archives: ATCA litigation
- Ahead of a constitutional referendum scheduled for September, Azerbaijani authorities have arrested several activists critical of the government within the last week. [RSF]
- In order to make room for civil society members arrested after the coup, Turkey announced that it will release inmates convicted of nonviolent offenses from its prisons. [NYT]
- Following the recent re-election of Zambia’s president, the police arrested over 130 people demonstrating against his election. [Al Jazeera]
- Guatemalan authorities broke in and ransacked the house of Ramón Cadena Rámila, a human rights attorney and the Central America director of the International Commission of Jurists. [Guardian]
- Authorities in Zimbabwe broke up an anti-government protest of about 200 people earlier this week with teargas, a water cannon, and batons. [Guardian]
- Amnesty International closed its offices in India this week out of concern for the safety of staff members after demonstrators accused the organization of inciting hatred. [Reuters]
Humanitarian Crises and Conflicts
- Following recent violence in South Sudan, the former vice-president, Riek Machar, fled in July and is now reported to be in the Democratic Republic of Congo. [BBC]
- The UN has deployed forces to the eastern part of the Democratic Republic of the Congo after 36 civilians were killed in Beni. [UN News Centre]
Inter-American Commission for Human Rights
- The Inter-American Commission’s former and incoming Executive Secretaries met this week. [IACHR Press Release]
- The Inter-American Commission and United Nations experts jointly issued a statement this week on the danger to human rights defenders in Honduras. [IACHR Press Release]
- The Inter-American Commission congratulated Costa Rica on its ratification of the Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance. [IACHR Press Release]
The United Nations
- As his term comes to a close, Ban Ki-moon, the United Nations Secretary-General, announced that he thinks his successor should be a woman, which would be a first for the UN position. [Al Jazeera]
- The Committee on the Rights of Persons with Disabilities this week concluded its review of Ethiopia and will publish its concluding observations on the State’s compliance with the Convention on the Rights of Persons with Disabilities on Monday September 5. [OHCHR Press Release]
- Two UN special rapporteurs reminded the Philippines this week to protect people from extrajudicial executions after over 850 people have been killed since Rodrigo Duterte was elected president and started his campaign to crackdown on crime. [OHCHR Press Release]
National Policy and Legal Developments
- The United States Department of Justice announced this week that the federal government will end its use of privately owned prisons. [Washington Post]
- Cambodian plaintiffs have filed suit against United States companies that bought seafood from Thai factories at which the plaintiffs were allegedly forced to work after being trafficked. [Guardian]
- The United States government announced the transfer of 15 Guantanamo detainees to the United Arab Emirates. [Al Jazeera]
- A Nigerian court is trying 20 soldiers for several offenses, including murder and assault, allegedly committed while fighting Boko Haram. [World Bulletin]
- Egypt’s law placing attacks on public buildings and facilities within the jurisdiction of military courts was extended this week for the next five years. [Mada Masr]
- After the leak of several reports that revealed the physical and sexual abuse that occurs in offshore detention centers, Australia announced this week that it will close the Manus Island detention center where it holds refugees. [Guardian]
Family members of Iraqi civilians killed by Blackwater security contractors in Baghdad’s Nisoor Square in 2007 have agreed to a settlement offered by Academi, Blackwater’s successor (also recently known as Xe Services). [Washington Post] On September 16, 2007, Blackwater employees guarding U.S. diplomats opened fire into a crowd, killing seventeen Iraqi civilians in what was alleged by prosecutors to be an unilateral and unjustified attack. The family members of some of the victims filed suit against the security company and five individual contractors in state court in North Carolina in 2009 for wrongful death and other torts (complaint in Brady et al v. Xe Services et al. here).
The defendants argued they were essentially U.S. government employees, and that the U.S. government should take their place as defendant. The defendants also argued that the U.S. federal court
Eleven Falun Gong practitioners have filed suit against computer networking company Cisco Systems for allegedly facilitating human rights abuses by the Chinese government against Falun Gong members, by developing and providing Internet surveillance technology known as Golden Shield or Policenet. [Wall Street Pit] The suit, filed by the Human Rights Law Foundation in the U.S. District Court for the Northern District of California last Thursday, alleges that as a result of the Chinese government’s ability to monitor Falun Gong members’ Internet activity, individuals were arbitrarily detained, tortured and killed. [CNET] A cisco representative has publicly denied the allegations and said that Cisco does not operate any network. [NYT]
Similarly, twenty-two plaintiffs have prevailed in a challenge to the District Court for the Northern District of California’s personal jurisdiction over Daimler AG in a suit against the company alleging its civil liability, through its subsidiary Mercedes-Benz, for international crimes committed by Argentine officials during that country’s Dirty War. [SFAppeal] The plaintiffs based the company’s liability on its Argentine employees’ participation or acquiescence in the detention, kidnapping, torture and killings of workers at a Mercedes plant near Buenos Aires. The plant officials allegedly permitted Argentine military and police agents to be stationed there and identified workers who sympathized with the opposition. The U.S. Court of Appeals for the Ninth Circuit reversed the district court’s holding that it lacked personal jurisdiction over Daimler AG.
U.S. Court Rules Corporations Cannot be Held Civilly Liable for Torture and Other Violations of International Law under ATCA
Last Friday’s Second Circuit ruling in Kiobel v. Royal Dutch Petroleum, if upheld, could be the death knell for litigation seeking to hold corporations accountable for torture and other violations of customary international law under the Alien Tort Claims Act.
The plaintiffs, Nigerian nationals, brought suit against Royal Dutch and Shell Petroleum for aiding and abetting the Nigerian government in extrajudicial executions, torture, arbitrary arrest, and other acts of suppression against those protesting the environmental effects of oil exploration.
In affirming dismissal of the suit, the Second Circuit held that corporations cannot be held liable under the ATCA (or ATS) because customary international law only confers jurisdiction over natural persons. [WSJ] As in the recent Ninth Circuit ruling in Bowoto v. Chevron, which held that the Nigerian plaintiffs could not recover under the ATCA (because a different federal statute preempted their claims) or the Torture Victims Protection Act against Chevron for the wrongful deaths of protesters, the Second Circuit’s decision ends the plaintiffs’ possibilities for relief.
In Kiobel, the Second Circuit seems to have turned on their head historic justifications for individual criminal (as opposed to State) liability for grave violations of international law. The majority cites the Nuremberg tribunal as stating: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”, in order to support the majority’s dismissal of the suit based on its finding that international law “has never extended the scope of liability to a corporation”.
However, as the dissenting judge in Kiobel argues, “on many occasions [U.S.] courts have ruled in cases involving corporate defendants [in ATCA suits] in a manner that assumed without discussion that corporations could be liable”.
- In a heartbreaking blow to Afghan hopes for peace, several U.S. soldiers are under investigation for murdering at least three Afghan civilians last year as part of a rogue “kill team” that was allegedly formed when a staff sergeant who had served in Iraq in 2004 joined the platoon stationed in Kandahar province. [Washington Post]
- The French Senate has approved a ban on the use of full-face veils in public, subject to a fine of 150 Euros ; the legislation will now be reviewed by the Constitutional Council [Impunity Watch; BBC]
- France faces widespread criticism for its destruction of Roma settlements and forced repatriation of Roma to other European nations – including from the UN High Commissioner for Human Rights, the Council of Europe’s Commissioner for Human Rights, and the EU Justice Commissioner Viviane Reding. [HRW]
- On Thursday, the U.S. state of Virginia will execute Teresa Lewis, following her conviction for the 2002 deaths of her husband and stepson; she will be the first woman to be executed in the state in 98 years and is reported to have “severe learning difficulties”. [Guardian]
- Polish police have detained exiled Chechen leader Akhmed Zakayev, who was granted asylum in the United Kingdom in 2003, but Polish authorities have not determined whether he will be extradited to Russia, where he is sought on charges of armed revellion, murder and kidnapping. [BBC; RNW]
- Italy and Libya’s joint agreement to intercept would-be migrants at sea has led to several incidents where Libyan patrols have fired upon Italian boats in the mistaken belief that they were carrying migrants. [Impunity Watch; Human Rights Watch]
- Ecuador and Colombia have met to discuss the plight of the approximately 135,000 displaced Colombians living in Ecuador, due to ongoing violence [Impunity Watch; ADN]
- Leading Russian gay rights activist, Nikolai Alekseyev, has been released after being held by Russian authorities for two days while they allegedly pressured him to withdraw a complaint before the European Court of Human Rights. [Radio Free Europe]
- A U.S. citizen has been released from Iranian custody after inadvertently crossing Iranian border from Iraq while hiking; meanwhile, while Amnesty calls attention to 30,000 held in Iran without trial and prominent Iranian human rights activist Shiva Nazar Ahari has been sentenced to six years’ imprisonment. [Guardian; NYT; Amnesty]
- The Philippine National Police will support the installation of a human rights desk in every police station, following torture accusations levied against the police. [Manila Bulletin]
- In Kyrgyzstan, human rights reporter Azimjon Askarov has been sentenced to life imprisonment on charges the Committee to Protect Journalists says are completely unfounded. [CPJ]
- Peruvian President Alan Garcia approved a repeal of recent Legislative Decree 1097, amidst fears that the law would provide amnesty for security forces members accused of human rights violations. [Peruvian Times] The repeal was viewed favorably by the IACHR, which had criticized the decree. [IACHR]
- Citing “the lack of the right to legitimate defence in Rwanda today”, a French court has rejected Rwanda’s request to extradite Eugene Rwamucyo, a doctor wanted for his alleged involvement in the Rwandan genocide. [RNW]
- Hamas and UN Relief & Works Agency clash over human rights curriculum in schools. [NPR]
- The Observatory for the Protection of Human Rights Defenders has released its annual report, Steadfast in Protest, provides a region-by-region analysis of government protection (or repression) of the media and civil society (note that the Table of Contents is at the end of the 500-plus page report). The report is choc-full of individual examples of human rights defenders who were subjected to harassment or prosecution, and instances of dissent which were stifled – particularly during elections – in 2009. [FIDH]
- Human Rights Watch calls for the establishment of an international Commission of Inquiry for Burma, to investigate past abuses by the military and armed groups. [HRW]
- The U.S. Senate is poised to vote on legislation, which has been approved by the House of Representatives, and which would repeal the military’s “Don’t Ask, Don’t Tell” policy towards gay and lesbian members of the military. [ACLU]
- Kashmiri separatists protest curfew laws and Indian occupation in bloody battles with Indian troops, in which at least three protesters have lost their lives, while Human Rights Watch calls for the repeal of the Armed Forces Special Powers Act, which protects members of the Indian military from prosecution and grants broad powers to use force and conduct warrantless arrests. [BBC; HRW]
- UN Special Rapporteur on the right to adequate housing warns of the high rate of forced evictions in Kazakhstan. [OHCHR]
- The IACHR has presented a case to the Inter-American Court involving Chilean courts’ denial of parental custody rights to a lesbian mother because of her sexual orientation. Karen Atala’s petition is the first to be decided by the Commission relating to discrimination on the basis of sexual orientation. [IACHR]
- UN expert calls on Sudanese authorities to investigate the September 2nd killing of dozens of civilians in North Darfur. [OHCHR]
- A Reprieve investigator reports that the FBI has been deeply involved in the questioning and detention of individuals connected to the World Cup bombings in Kampala this year, the investigation of which has included the arbitrary detention of two Kenyan human rights defenders arrested in Uganda last week. They had been working on behalf of three Kenyans subjected to extraordinary rendition and charged in Uganda for their alleged role in the Kampala World Cup bombings. [Huffington Post]
- UN Deputy High Commission for Human Rights calls for greater protection of civilians against attacks in Somalia, following her visit to the country.
- Organizations call for the immediate release of 19-year-old blogger being held incommunicado in Syria for nine months now. [AFP; HRW]
- Attacks against journalists threaten lives and freedom of expression in Mexico. [Impunity Watch]
- The Costa Rican Supreme Court has ruled that the high crime rate in the country cannot justify arbitrary police checkpoints on public roads, which may be established only when there is substantiated evidence or actual notice of a crime having been committed. [CEJIL]
- 18 protesters were injured, and one killed, in a confrontation between Peruvian police and protesters opposed to a dam and agricultural irrigation system which residents of Espinar fear would leave them without water. [Reuters; AlertNet]
- In Thailand, planning for anti-government protests is underway as the fourth anniversary of the military coup approaches. [Democracy Now]
- The UN Representative on the Human Rights of Internally Displaced Persons calls for increased efforts to improve the lives of the internally displaced in Armenia.
Economic, Social and Cultural Rights
- Syria welcomes its first visit from a UN special rapporteur, the Special Rapporteur on the right to food, in a showing of increased participation with the UN Human Rights Council’s monitoring mechanisms, including its upcoming Universal Periodic Review. [The National; OHCHR] The Special Rapporteur estimates that 2 to 3 million people face food insecurity in Syria.
- The UN General Assembly has adopted Resolution A/RES/64/292, which declares that access to safe and clean drinking water and sanitation is a human right essential to the full enjoyment of life and all other rights. Bolivia introduced the text and 122 of the 192 Member States voted in favor, while 41 – including the United States – abstained from voting. [UN]
- The UN General Assembly recognizes the right to education in emergency situations in Resolution 64/290.
Conflict and Humanitarian Emergencies
- The UN General Assembly has urged greater support for emergency relief and reconstruction in Pakistan, following widespread flooding which continue to affect up to 20 million people. [UN; BBC]
- In New York and across the United States, victims of the 9/11 attacks are honored as President Obama advocates tolerance and President Karzai warns that continued NATO involvement in Afghanistan endangers innocent civilians. [New York Times; AP] Ongoing violence in Afghanistan threatens the stability of the upcoming parliamentary election. [HRW]
- Human Rights Watch calls attention to massive, ongoing attacks and abductions by the Lord’s Resistance Army in CAR and DRC. [HRW] The UN recently prepared a report on the human rights violations committed in DRC between 1993 and 2003, to be released in October. [UN]
- The ICJ has issued an advisory opinion finding that Kosovo’s declaration of independence did not violate international law, a decision requested and acknowledged by the UN General Assembly. [UN]
Prosecutions and Impunity
- Although reports of impunity and discrimination continue, the conviction of a Honduran police officer in the stabbing of a transgender sex worker is seen as an important victory. [HRW]
- Human Rights Watch calls on Uganda to investigate and prosecute security officers’ use of lethal force during the September 2009 Kampala riots. To date, no officer has been successfully prosecuted for the dozens of deaths caused by security forces. [HRW]
- In the Philippines, 19 defendants are facing trial for the 2009 Maguindanao massacre of 57 people. [HRW]
- The Extraordinary Chamber in the Court of Cambodia has issued its first conviction, sentencing Kaing Guek Eav to 35 years’ imprisonment for war crimes and crimes against humanity for his role in running an infamous detention camp under the Khmer Rouge in the late 1970s. [UN]
- Human Rights Watch has issued a new report, Dignity on Trial, urging overhaul of India’s treatment of victims in rape investigations.
- The complexities of the use of private military contractors, or mercenaries, are evident in the UN independent experts’ concern regarding the execution of four mercenaries in Equatorial Guinea following their trial – by a military tribunal – for their participation in an armed attack against the government in 2009. [OHCHR]
- On September 10, the Ninth Circuit issued its judgment on plaintiffs’ appeal in Bowoto v. Chevron, affirming the jury verdict in favor of Chevron and the district court’s pre-trial rulings that the Alien Tort Statute claims were preempted by the Death on the High Seas Act and that corporations could not be held liable under the Torture Victims Protection Act- in connection the 1998 deaths and torture of Nigerians protesting the environmental damage caused by Chevron’s drilling of the Nigerian coast.
- CEJIL questions the Colombian government’s commitment to the investigation of the deaths and disappearances following security forces’ seizure of the Palace of Justice from guerrillas in 1985, in light of the recent firing of the prosecutor in charge of the investigation. [CEJIL]
- ICTR sentences Rwandan official to 25 years’ imprisonment for a 1994 massacre. While the tribunal convicted the former provincial sub-prefect, Dominique Ntawukulilyayo, of genocide, it acquitted him of complicity and incitement to commit genocide, for his role in the April 23, 1994 attack by soldiers in which thousands of Tutsis died. [UN]
Treaty and Tribunal Developments
- At the third session of the Conference of States Parties to the Convention on the Rights of Persons with Disabilities, participants advocate greater enforcement of the convention’s protections at local levels, while top UN official urges wider ratification. [UN]
- Seychelles and Saint Lucia have ratified the Rome Statute, bringing the number of States Parties to the International Criminal Court to 113. [ICC]
- The UN Security Council and General Assembly have elected two new judges to the bench of the International Court of Justice -American citizen Joan E. Donoghue and Chinese citizen Xue Hanqin – to replace judges Thomas Buergenthal and Shi Jiuyong, who resigned this year. [ICJ] Donoghue is currently Principal Deputy Legal Adviser at the U.S. Department of State, while Xue is a diplomat. [UN; Radio Netherlands]
- The Inter-American Commission on Human Rights has designated Jorge Taiana as its Special Representative for the Strengthening of the Inter-American Commission, with the central purpose of resolving the chronic lack of resources necessary to carry out its mandate. [IACHR]
- On August 1, 2010, the Convention on Cluster Munitions took effect, prohibiting the use of cluster bombs in the 40 State Parties. [UN; BBC]
Universal Periodic Review
- The United States has submitted its first national report to the UN Human Rights Council as part of the Universal Periodic Review process. [Human Rights First] See the UN and stakeholders’ reports on the U.S. here.
Security and the Rule of Law
- The Inter-American Commission on Human Rights has strongly condemned the forced transfer of Guantanamo Detainee Abdul Aziz Naji to Algeria, in spite of the precautionary measures granted in favor of all Guantanamo detainees in 2002, as a violation of the principle of non-refoulement. [IACHR]
- The ACLU and CCR have filed a federal lawsuit challenging presidential authorization of targeted killings of U.S. citizens outside of conflict zones, without requiring that the killing be necessary in the face of an imminent threat, or providing for due process of law or judicial oversight. The ACLU and CCR sought to represent Anwar al-Aulaqi, a U.S. citizen, because it learned that he was named on the Specially Designated Nationals List of suspected terrorists whose assets have been frozen by the Office of Foreign Assets Control (OFAC) of the U.S. Department of Treasury, as well as on a “kill list” list of individuals to be targeted for killing by the U.S. government. OFAC requires that attorneys must first obtain a license from the government in order to provide legal services to individuals named on its Specially Designated Nationals List. After OFAC initially failed to respond to their request for a license to represent Mr. Aulaqi, the ACLU and CCR filed a second lawsuit challenging the license requirement for attorneys. [CCR; ACLU] The ACLU has also filed a FOIA request seeking documentation related to the legal basis for the use of predator drones to conduct targeted killings. [ACLU]
- A recent Peruvian Legislative Decree No. 1097 would appear to essentially grant amnesty to those responsible for crimes against humanity committed before November 9, 2003 and has drawn intense criticism. [IACHR; CEJIL] The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism completed a week-long official visit to Peru on September 8. [OHCHR] Among other observations, the Special Rapporteur called attention to the broad definition of terrorism-related crimes in Peruvian law and welcomed the government’s report that a new counter-terrorism law that would take into account international standards has been drafted. [OHCHR]
- In July, the U.S. military transferred roughly 1,500 detainees to Iraqi custody by handing over control of Camp Cropper to the Iraqi government. Those transferred included former representative of the Hussein government, Tariq Aziz, whose son expressed concerns that his father would die in Iraqi custody. [Washington Post] Approximately 200 individuals deemed “too dangerous” to hand over remained in the custody of the U.S. military. Four of those prisoners escaped this week from the Baghdad detention center where they were being held. [Washington Post]
Dissent and Freedom of Expression
- Swaziland Prime Minister proposes severe corporal punishment of dissidents and foreign protesters, following arrest of 50 protesters. [Impunity Watch]
- NGOs call attention to the arbitrary detention and prosecution of human rights defenders around the world, in Angola, Morocco, Israel, Colombia, China, DRC, Kyrgyzstan, Cambodia, Russia, [HRW; Human Rights First]
- Bahrain suspends human rights NGO’s board, replacing board members with State representative, in run-up to October elections, drawing criticism from Amnesty International. [AFP]
Equal Rights and Discrimination
- Mexico’s Supreme Court has recognized that same-sex couples in Mexico City have the right to adopt children, rejecting the federal government’s constitutional challenge to last year’s legislation allowing gay marriage. [BBC]
- U.S. immigration policy continues to receive criticism on several fronts, as the Inter-American Commission on Human Rights issues its merits report in Smith and Armendariz v. United States, holding that the deportation of two foreign nationals without consideration of their family ties in the U.S. violated their rights to respect for family life and due process; the ACLU files suit challenging the lack of adequate procedures for dealing with people with mental disabilities in detention and removal proceedings; Human Rights Watch submits an amicus curiae brief before the Board of Immigration Appeals (BIA) alleging that current U.S. practices with regard to individuals with mental disabilities violate international standards; a new report details sexual abuse and harassment in immigration detention; the Ninth Circuit reverses and remands a BIA decision for appropriate consideration of whether “women in Guatemala” may constitute a particular social group for purposes of asylum; documents obtained through FOIA litigation allegedly demonstrate that immigration officers use the ‘Secure Communities’ immigration enforcement program to detain and deport non-criminals or petty criminals using racial profiling, rather than as a highly limited mechanism to target the worst criminals for deportation [CCR]; and the Third Circuit strikes down a city ordinance punishing landlords nad employers for renting to or hiring “illegal aliens” [ACLU].
- A federal judge granted the federal government’s request for preliminary injunction against some provisions of Arizona’s immigration law, SB 1070, temporarily prohibiting enforcement of the requirement that police check immigration status of individuals they stop, the provision allowing, warrantless arrests of suspected unlawful immigrants, and the requirement that immigrants carry registration papers. [Washington Post]
- New U.S. legislation ends marked inequality in drug sentencing for powder cocaine and crack cocaine, which was a significant factor in racial disparities in prison populations because of the mandatory five-year minimum sentence previously required for possession of 5 grams of crack cocaine (versus 500 grams of powder cocaine) and the fact that those prosecuted for crack offenses were predominantly African American. [HRW] The Fair Sentencing Act of 2010 increases the amount of crack cocaine required to trigger the mandatory minimum sentence, eliminates the mandatory minimum for simple possession, and requires the U.S. Sentencing Commission to adopt new guidelines to take into account aggravating and mitigating circumstances in cases of drug trafficking.
Ninth Circuit Dismisses Rendition Lawsuit against Boeing Subsidiary, Granting Government’s Invocation of State Secrets Privilege
On September 8, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit dismissed a civil suit filed under the Alien Tort Claims Act by five extraordinary rendition victims against a Boeing subsidiary, Jeppesen DataPlan, Inc. for its role in their rendition. [Amnesty International USA ; ACLU] The federal government intervened in the suit, arguing that any divulgence of information relating to Jeppesen’s work for the CIA would make public privileged information. The district court granted the government’s motion to dismiss. On appeal, a three-judge panel of the Ninth Circuit Court of Appeals reversed and remanded. An eleven-judge panel of the Ninth Circuit took up the case en banc, the majority then “reluctantly” concluding that the state secrets privilege applied and, on the facts of the case, required dismissal.
The five plaintiffs are non-U.S. citizens who were detained in Sweden, Pakistan, Gambia and Jordan before being rendered to Egypt, Morocco, and Afghanistan, where they allegedly suffered torture and inhumane conditions of detention. Several allege that they were sentenced to lengthy prison terms after giving false confessions under severe torture. Two of the plaintiffs, Binyam Mohamed and Bisher al-Rawi, were eventually transferred to Guantanamo, where they spent years in detention.
Unlike the district court, the circuit court relied on the privilege established in Reynolds (state secrets evidentiary privilege) rather than on the Totten bar (barring adjudication where the very subject of the litigation is a state secret). The state secrets privilege is intended to protect information when “strictly necessary to prevent injury to national security”. See, e.g., Mohamed v. Jeppesen Dataplan, Case 08-15693, Slip Op. at 13538 (9th Cir. Sept. 8, 2010), quoting Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983). The effect of a sustained claim of the state secrets privilege is the excision of the protected evidence from the litigation. In Mohamed, the Ninth Circuit held that dismissal was required because the privileged evidence could not be separated from nonprivileged information, creating an “unacceptable risk of disclosing state secrets” were the case to continue. Id. at 13540 et seq. In spite of the hundreds of pages of nonprivileged documents offered into evidence by the plaintiffs (listed in the dissent’s appendix), the majority concluded that Jeppesen’s response to such evidence would require disclosure of privileged information. Id. at 13551-52. The majority also took note – on two occasions – that the Obama administration had revised the federal standards for invocation of the state secrets privilege and certified to the court its compliance with those standards in this case. Id. at 13528-29, 13552-53. [See Michael Isikoff’s critical Newsweek article on that issue here].
With regard to the plaintiffs’ possibilities for relief, the majority wrote:
Our holding today is not intended to foreclose — or to prejudge — possible nonjudicial relief, should it be warranted for any of the plaintiffs. […].
First, that the judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs’ human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II. See Mochizuki v. United States, 43 Fed. Cl. 97 (1999).
Second, Congress has the authority to investigate alleged wrongdoing and restrain excesses by the executive branch. “ […]
Third, Congress also has the power to enact private bills. See Nixon v. Fitzgerald, 457 U.S. 731, 762 n.5 (1982) (Burger, C.J., concurring) (“For uncompensated injuries Congress may in its discretion provide separate nonjudicial remedies such as private bills.”) […] When national security interests deny alleged victims of wrongful governmental action meaningful access to a judicial forum, private bills may be an appropriate alternative remedy.
Fourth, Congress has the authority to enact remedial legislation authorizing appropriate causes of action and procedures to address claims like those presented here. When the state secrets doctrine “compels the subordination of appellants’ interest in the pursuit of their claims to the executive’s duty to preserve our national security, this means that remedies for . . . violations that cannot be proven under existing legal standards, if there are to be such remedies, must be provided by Congress. That is where the government’s power to remedy wrongs is ultimately reposed.” Halkin v. Helms, 690 F.2d at 1001 (footnote omitted).
Id. at 13553-56 (internal citations omitted).
The Ninth Circuit’s decision is an interesting echo of the Second Circuit’s dismissal of Maher Arar’s suit against U.S. government officials alleging wrongful detention and torture in connection with his extraordinary rendition to Syria. While the Second Circuit did not reach the questions of qualified immunity or the state secrets privilege, the court placed primary importance on non-judicial remedies in the resolution of such cases, explaining that “if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress”. The U.S. Supreme Court recently declined review of the Second Circuit’s dismissal.
In their sharply worded opinion, the five dissenting judges argued that the majority’s holding was procedurally flawed, in that the plaintiffs’ allegations were sufficient to survive dismissal and the state secrets privilege should not have been used to prevent plaintiffs from proving (through non-secret evidence) the veracity of allegations “that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute.” Id. at 13559. Rather, review of the privilege’s application should have taken place with regard to specific pieces of evidence, once the complaint had been answered and discovery had begun (not, as in this case, immediately after the complaint was filed), so as to avoid that the privilege trump due process of law. Id. at 13559-61. The dissent’s – highly compelling – argument is that the majority allowed the state secrets privilege to apply to facts, rather than to evidence, prohibiting the plaintiffs from alleging certain conduct and knowledge by Jeppesen rather than barring the introduction of pieces of evidence that could jeopardize national security (without having regard to whether privileged information could also support their allegations). Id. at 13568. The dissent concludes by arguing that the alternative remedies identified by the majority fly in the face of the notion of judicial review and the concept of checks and balances.
The tie-breaking concurring opinion argued in favor of applying the Totten bar to dismiss.
- Protocol 14 to the European Convention on Human Rights enters into force today, introducing a number of changes to decrease the Court’s backlog, strengthen enforcement in order to reduce repetitive applications, concentrate its efforts on cases where applicants have suffered a “significant disadvantage”, and allow the European Commissioner for Human Rights to intervene as a third party [ECHR]
- Amnesty International releases its 2010 report, State of the World’s Human Rights
- UN Special Rapporteur on Extrajudicial Executions reports continuing killings by Brazilian police [UN]
- UN Security Council calls for impartial investigation of deaths on Gaza flotilla [Washington Post]
- Efforts by Jamaican police to arrest suspected drug dealer, wanted for extradition by the U.S., claim dozens of lives, raising concerns of the Inter-American Commission on Human Rights [IACHR, Washington Post]
- U.S. Supreme Court decides Samantar v. Yousuf, holding that the Foreign Sovereign Immunities Actdoes not grant immunity to former Somali prime minister against torture suit brought by victims of abuse [CJA, SCOTUSblog, Washington Post]
- IACHR grants precautionary measures to indigenous communities affected by Goldcorp’s Marlin mine in Guatemala, in order to prevent environmental contamination [IACHR]
- UN experts condemn attacks against religious minority in Pakistan [UN]
- UN High Commissioner on Human Rights urges creation of internationalized mechanism to investigate Sri Lanka conflict, over newly-created governmental Commission on Lessons Learnt and Reconciliation[AFP]
- Tropical Storm Agatha claims lives in Central America, as flooding and landslides continue [Washington Post]
- UN Working Body on Enforced and Involuntary Disappearances expresses concern over suspension of Spain’s Judge Garzón
- Human rights defenders at risk in Russia, the Philippines, Colombia and Mexico, UN and European Union warn
- Bahrain prohibits news outlet Al Jazeera from operating within its territory [Impunity Watch]
- UN Special Rapporteur on the Right to Food highlights progress and proposes tactics for the integration of the right to food, in recent reports [UN]
- U.S. Supreme Court decides Berghuis v. Thomkins, holding that Miranda waiver was implied by man’s admission after over two hours of silence, reinterpreting Miranda to require explicit invocation of right to remain silence [Washington Post, SCOTUSblog]
- UN High Commissioner for Human Rights calls for investigation of crackdown on political protesters in Thailand [AFP]
The trial of Radovan Karadzic for acts of genocide, crimes against humanity and war crimes resumed yesterday before the International Criminal Tribunal for the former Yugoslavia, in The Hague. The trial, which first began in October 2009, was suspended when Karadzic refused to participate. See the ICTY’s fact sheet on the trial here.
Karadzic had previously been sued in the United States by victims of his alleged crimes. The Second Circuit Court of Appeal’s resolution of that civil claim is considered a landmark decision on the reach of the Alien Tort Claims Act and Torture Victims Protection Act (available here and here).