Torture Inc.

The Supreme Court term begins with a knotty human rights claim against big oil.

The current justices of the US Supreme Court.
The Supreme Court opened its new term by rehearing Kiobel v. Dutch Royal Petroleum

Photo by Steve Petteway/Collection of the Supreme Court of the United States.

There’s a deep question at the heart of the Supreme Court’s first case of the term today: When can the United States offer a court of last resort to people to whom we’ve granted asylum, who say they’ve suffered human rights abuses abroad?  The satisfying aspect of the morning’s argument was that the deep question got a lot of time. The disturbing thing was that even though the morning went better for the Nigerian plaintiffs than I expected, it will be very hard for them to ever get their day in an American court.

Last year, Kiobel v. Royal Dutch Petroleum Company was about whether Esther Kiobel could sue a corporation—the Dutch-British multinational that makes Shell oil and gas—for allegedly colluding with the Nigerian military in the 1990s to crush protesters who were trying to stop oil exploration in the country. The Supreme Court was poised to decide whether companies, as opposed to individuals, may be held responsible under the Alien Tort Statute, a 1789 federal law that human rights lawyers dug out of storage 30 years ago and have successfully used since then to get their cases into court. The justices asked to rehear the case today, however, so they could consider a more basic question: Can someone like Esther Kiobel sue anyone at all under the Alien Tort Statue? That question appeared to be asked and answered, in a 2004 ruling, Sosa v. Alarez-Machain, in which the court said foreign plaintiffs living in the United States could sue for a “modest set of actions alleging violations of the law of nations.” It is not good news for Esther Kiobel and the other 11 plaintiffs that Sosa now appears to be up for grabs.

What exactly does the Alien Tort Statute say? Not much: It gives courts some power to hear suits brought by aliens—foreigners who are here—over harms “committed in violation of the law of nations.”. In 1789, that probably meant, at a minimum, that the aliens could sue for piracy and attacks on ambassadors. How does this translate in 2012? Or as Justice Stephen Breyer spiritedly puts it, “Who are today’s pirates?”

We’ll get to that in a second. First, Justice Anthony Kennedy wants to know what possible connection there is between Esther Kiobel, the wrongs she says unfolded in Nigeria, and the United States. The answer the plaintiffs’ lawyer, Paul Hoffman, gives is that his clients live here because the U.S. government gave them asylum. Also, Royal Dutch Petroleum does plenty of business here.

Kennedy doesn’t like the sound of that. “Your position is that a U.S. company that allegedly commits a human rights violation could be sued in any court in the world?” he asks. Note the switch—now it’s our homegrown corporation, not a company called Royal Dutch, that’s the pirate.

Justice Antonin Scalia backs up Kennedy, asking whether it will be “some super body that decides what constitutes a violation” of human rights. This is not a superhero kind of super body. It’s the kind that usurps U.S. sovereignty. Hoffman tries to erase the image: The courts of nations around the world have long determined human rights norms, he says. But Scalia is with Kennedy: unhappy about a world in which U.S. corporations can be held liable for human rights abuses in foreign courts. Justice Samuel Alito doesn’t like Hoffman’s notion either, and Chief Justice John Roberts seems skeptical, too.

Hoffman next addresses all the ways his clients could still get kicked out of court, even if they make it past today’s tangle with the Alien Tort Statute. They could be told to file suit in Nigeria, or the Netherlands or the United Kingdom, where Royal Dutch Petroleum is based. Hoffman concedes that it’s not clear from the record whether they’ve done so yet. (This is the doctrine called exhaustion, which is how it feels to be told to go back and start over somewhere else.) Kiobel and the other plaintiffs could also be told that another forum, outside the United States, is simply better. (This is the doctrine called forum non conveniens, the rare Latin phrase that makes sense without translation.)

If Hoffman goes too far in the direction of we-can-be-tossed-later, he could weaken his client’s case in the future. For now, though, his chief task is to make his clients’ suit sound unexotic. Esther Kiobel is just asking for what the court gave in Sosa eight years ago, he argues, and what’s more, her claims could have been brought in state court. In fact, the “obvious reason” that Congress enacted the Alien Tort Statute back in 1789 was to “make sure that the federal courts were available to litigate claims that could be litigated in state court.”

I should say that when Justice David Souter wrote the majority opinion in Sosa, he pointed out that “despite considerable scholarly attention,” to the origins of the Alien Tort Statute “it is fair to say that a consensus understanding of what Congress intended has proven elusive.” This is why the justices are at loggerheads today. It’s also why pirates come up so often—them, at least, we can all grasp.

But Kathleen Sullivan, the former dean of Stanford Law School who is the lawyer for Royal Dutch Petroleum, runs afoul of the pirates when it’s her turn at the podium. Sullivan starts by giving Kennedy what he wanted at the outset: She says that “this case in fact has nothing to do with the United States” because the conduct at issue took place “entirely in Nigeria.” The trouble with this argument is that it may have nothing to do with the Founders’ notion of the Alien Tort Statute. And it definitely has nothing to do with the last 30 years of human rights litigation under the statute, which the Supreme Court essentially accepted in Sosa. Justice Elena Kagan correctly points out that Sullivan is making a broad argument. Sullivan tries another tack: Perhaps the Alien Tort Statute was meant to address only attacks on aliens on U.S. soil or on the high seas.

But here, Scalia pounces. He wants to know of another American statute that applies on the high seas but not on foreign soil.  You can see the strict-interpretation screws turning: Why should the court read one law in a way that’s at odds with all the other laws? Another snag for Sullivan: Among the sparse 18th century references to the Alien Tort Statute is a 1795 written opinion by Attorney General William Bradford, who offered the law as a remedy to a group of British subjects who said that a band of Americans, in cahoots with the French, had attacked their property on land in Sierra Leone. Bradford even mentioned “aiding and abetting,” which sounds like the collusion that Royal Dutch is accused of in Nigeria. Sullivan admits that the Bradford opinion “is the best thing the petitioners have.” It will be interesting to see what Scalia the originalist makes of this history in the final analysis.

Today, though, Scalia’s shoots his sharpest arrow at Solicitor General Donald Verrilli Jr. The solicitor general has executed an about-turn for the government: Last year, the Obama administration supported Kiobel’s claim. Now the government has switched sides. “Why should we listen to you as opposed to the other solicitors general?” Scalia asks.

Verrilli starts a long answer about how it’s his responsibility to balance the competing multiple interests of the United States. Scalia interrupts to point out that Verrilli’s predecessors had the same responsibility “and they took a different position.” Why should the court adopt Verrilli’s instead? “Because we think it’s persuasive, your honor,” Verrilli answers. This produces the first big laugh of the day. But I don’t think that actually boded well for Verrilli, whose position got mushier the more he tried to explain it. The government isn’t against every Alien Tort Statute suit, just the ones against corporations accused of aiding and abetting foreign governments, because those are the suits that foreign nations are highly sensitive to, the State Department says. Scalia asks if that means the courts will delineate categories of cases based on the say-so of the State Department—not a promising route, in his view. Justice Sonia Sotomayor jumps in to say, “I’m having trouble with this.”

And then Breyer, in his role today as the court’s moral conscience, brings the conversation back to the place where it began: Why shouldn’t corporations be held accountable for allegedly committing universally condemned human rights abuses? “What if the torture is done by hiring Torture Incorporated?”

Verrilli says that if Torture Inc. is directly doing the torturing, then yes, someone like Esther Kiobel could go ahead and sue under the statute. This is a concession because TortureInc. cannot be sued under the Torture Victim Protection Act, which Congress passed in 1991 expressly to allow for human rights suits against individuals.

OK, Breyer says next, now what if Torture Inc. is accused of “aiding and abetting” a nefarious dictator? Verrilli says no to this suit, because of the “risk of friction” that comes with subjecting the actions of a foreign government to scrutiny in the U.S. courts.  That is the step that Esther Kiobel ultimately is asking our federal courts to take. That is what it means to be the court of last resort.

If that sounds like a lot to ask, consider the alternative, which Breyer raises by invoking Hitler, and Paul Hoffman underscores by closing with the image of “the modern-day equivalent to IG Farben.” In 1947, the United States tried 24 directors of the German chemical company, which was an engine of the Nazi war effort and manufactured the poison gas used in the concentration camps. Thirteen of the directors were held responsible for war crimes and crimes against humanity, and they went to prison. The case, tried at Nuremberg, is a reminder of the justice the United States has offered in the past for human rights violations on foreign soil. Maybe Esther Kiobel and her fellow plaintiffs won’t be able to prove anything like this against Royal Dutch Petroleum. But if the Supreme Court cuts them off before they can try, they won’t be the only ones who lose.