The Longer Arm of the Law

The Bush administration has repeatedly gone out of its way to encourage American firms to conduct business in Iraq. But a Supreme Court decision Tuesday permitting foreigners to use U.S. courts to seek redress for serious human rights violations may have wide-ranging implications for organizations doing business overseas--especially private companies hired to assist the U.S. military.

The case decided by the Supreme Court yesterday was an appeal of an earlier decision by the United States Court of Appeals for the Ninth Circuit. That ruling permitted a Mexican doctor, Humberto Alvarez-Machain, to sue a Mexican national who assisted the federal Drug Enforcement Administration in kidnapping him from his office in Guadalajara to bring him to trial in the United States on charges relating to the murder of a federal narcotics agent. The case relied on the obscure Alien Tort Statute, which was among the laws enacted by the First Congress in 1789. The oddly-worded statute, which says federal court has jurisdiction over "any civil action...committed in violation of the law of nations or a treaty of the United States," has only been used successfully in court about 20 times.

In a milestone decision, the Supreme Court denied the specifics of Alvarez-Machain's case, but affirmed the authority of US courts to hear cases brought by foreigners alleging egregious human rights violations abroad--potentially including mistreatment by employees of American companies. "The decision is very welcome news to victims of human rights abuses who have been looking for a way to recover damages from those who violated their rights, no matter where it happened," says Eric Biel, senior counsel at Human Rights First, the new name of the Lawyer's Committee for Human Rights. "Through [the Alien Tort Statute], victims of serious human rights violations will continue to have their day in court."

Earlier this month, a consortium of Ivy league law professors and the Center for Constitutional Rights used the same statute to file a federal lawsuit alleging that two private corporations hired to assist with Iraqi prisoner interrogations abused detainees in order to maintain lucrative government contracts. The two companies named in the suit are Titan Corporation and CACI, which provide the Department of Defense with translation and other communication services. Both have denied the charges.

Legal experts say the ruling was a slap in the face to the Bush administration's attempts to limit the American judicial system's ability to hear human rights cases. "The Bush administration lost a lot of ground this week on their agenda, which is getting U.S. courts to not hear these kinds of international claims," says Harold Hongju Koh, the dean of Yale law school and expert on international law. In addition to the Alien Tort case, the Supreme Court decided Monday that detainees being held at Guantanamo Bay had the right to a court hearing. In related cases, the justices also rejected the Bush administration's claim that it could detain indefinitely those it deemed to be 'enemy combatants' without giving them access to a lawyer. "They were outvoted two days in a row, so that's pretty solid confirmation that U.S. courts can participate in the development of international human rights law," says Koh.

Earlier the Bush administration had urged the Supreme Court to hear the case involving Dr. Alvarez-Machain and interpret the Alien Tort statute in a way that would limit the liability of private companies doing business abroad. In the majority opinion, Justice David Souter said that the authors of the 1789 law had every intention of making sure U.S. courts could enforce "paradigms" of international norms with "definite content and acceptance among civilized nations." "It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals," he wrote.

Although the ruling was carefully worded to prevent all but the most clearly defined human rights cases from entering the court, international business interests are already worried. "This ruling didn't cut the filing of these cases off at the pass, and that's what we had been hoping," says Robin Conrad, the senior vice president of the legal arm of the U.S. Chamber of Commerce. Experts say law-abiding businesses have no reason to worry. "If they're not committing torture or genocide, they're okay," says Yale's Koe. "But if they are, then they should have something to worry about."