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Justice Kennedy Is Back for More Torture

By Noah Feldman Sep 30, 2012 11:34 PM GMT+0100

Hard as it may be to believe, the new U.S. Supreme Court term is already upon us. In the balance first is the future of human rights litigation in U.S. courts — and whether torture committed by foreigners abroad is any of our business.

Although the last term ended with the unexpected emergence of Chief Justice John Roberts as the court’s wild card, this one begins with fevered speculation about what is on the mind of Associate Justice Anthony Kennedy.

The case being heard Oct. 1, Kiobel v. Royal Dutch Petroleum, has been full of surprises from the start. It concerns whether Royal Dutch Shell Plc (RDSA) aided the Nigerian government in rapes and murders of people living in the oil-rich Ogoni region. It came to the Supreme Court with the narrow question of whether corporations could be held liable under a 1789 statute that says the federal courts have jurisdiction over suits brought by a foreigner for torts “in violation of the law of nations.”

The assumption going in was that private individuals who tortured foreigners abroad could be sued under the law — the result of a carefully crafted 2004 decision by Justice David Souter in Sosa v. Alvarez-Machain. The only issue was supposed to be whether corporations, too, were liable under international law.

Punted Case

But at oral argument in March, Roberts and Justice Samuel Alito speculated openly that the U.S. had no authority at all to adjudicate events that took place between foreigners entirely outside its territory. Instead of deciding the corporate liability question that the case originally presented, the justices punted. They announced they would revisit the much larger question of whether such suits are ever allowed — against companies or people — and ordered the parties to reargue the case this week.

The court’s choice to revisit the settled precedent took human rights activists by surprise. Since the 1980s, the 1789 law, known as the Alien Tort Statute, has become a crucial tool for taking gross human rights violations into U.S. courts. The suits rarely yield any money for plaintiffs — their real purpose is to shed light on outrageous abuses in a trustworthy venue. Even among activists and victims around the world who hate the U.S. and wouldn’t trust a word a president says, our courts retain prestige as honest brokers of the facts.

The original intent of the statute is obscure; deciphering it has become a cottage industry of legal academia. Regardless, its modern use has been inspiring and significant for the cause of human rights. Human rights violators such as Radovan Karadzic, the Serbian genocidaire, have been exposed by suits under the statute long before international justice caught up with them.

So why is the court now revisiting settled law? It started with a single amicus brief supporting the defense filed on behalf of Chevron Corp. (CVX) and several other U.S. companies. Traditionally, critics had argued that the original meaning of the statute didn’t bear out its extension to human rights claims, or, more arcanely, that the statute authorized the courts to hear cases but didn’t provide a body of law to decide them. Yet this brief, written by Jack Goldsmith of Harvard Law School, took a totally different tack.

Goldsmith made the creative, counterintuitive argument that it would in fact violate international law for a U.S. court to reach judgments on matters that took place outside its territory and involved no U.S. citizens. His argument relied on the principle of extraterritoriality, which, roughly, says that each sovereign is responsible for what takes place within its own borders.

Perverse Brilliance

The perverse brilliance of this argument is that it turns international law on its head. For human rights activists, international law is a sword with which to pursue evildoers, and the statute makes the U.S. courts the field of battle. Goldsmith’s argument transformed that sword into a shield for human rights violators, who could hide behind the sovereignty of their own nation states.

In reality, international law is schizophrenic about borders. Sometimes, in a grand tradition begun at the Nuremberg trials of Nazi war criminals, international law looks beyond the limits of sovereignty and punishes crimes against humanity that would go unpunished in the torturers’ home courts. Much of the time, however, international law serves the interests of the sovereign states that make it. And states typically hate interference from the outside, preferring to address or ignore domestic human rights violations according to their own interests.

So, who will win? Will the Supreme Court overturn an eight- year-old precedent, removing the federal courts from the realm of international human rights?

In the section of the 2004 Sosa opinion that affirmed a cause of action under the Alien Tort Statute, Souter was joined by Kennedy and Justice Sandra Day O’Connor in the 6-3 majority. O’Connor has since been replaced by Alito, and it seems safe to say he will vote to block future human rights use of the Alien Tort Statute. Which leaves Justice Kennedy, once again, as the likely swing vote. Will the precedent-loving justice who once wrote that “liberty finds no refuge in a jurisprudence of doubt” vote to reverse a decision that he himself joined?

Goldsmith, who was once Justice Kennedy’s law clerk, has provided his old boss with a possible way out, precisely because he introduced international law in his legal argument. Unlike his conservative colleagues, Kennedy has been fairly friendly to international law. So, while it would be hypocritical for them to rely on international law to reach a conservative decision here, he could do so without inconsistency.

Legal Imagination

At the oral argument in March, Kennedy referred to a 1980 appellate decision applying the Alien Tort Statute in human rights case as “a binding and important precedent.” It would take a feat of legal imagination to overturn the 2004 precedent without appearing to violate the principle of stare decisis.

Having opened Pandora’s box by considering the viability of human rights suits, the court could close it by affirming that although individuals remain subject to the statute, corporations are outside its purview. Kennedy, who wrote the much-reviled opinion in the Citizens United campaign-finance case, would perhaps need to explain why corporations are persons when it comes to free speech but not when it comes to torture. But he would at least maintain the status quo. At this point, with their entire strategy in the balance, human rights advocates might count even such a depressing result as a victory.

(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)

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To contact the writer of this article: Noah Feldman at [email protected]

To contact the editor responsible for this article: Tobin Harshaw at [email protected].

About Noah Feldman

Noah Feldman is a professor of constitutional and international law at Harvard and the author of five books, most recently “Scorpions: The Battles and Triumphs of FDRs Great Supreme Court Justices.”

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