PLANK OCTOBER 2, 2012
When Kiobel v. Royal Dutch Petroleum first came before the Supreme Court last February, the lawyers for the Dutch and British-owned petroleum company argued that corporations couldn't be sued for acts of torture and extrajudicial killings—Shell was accused of complicity in such crimes allegedly committed by the Nigerian government—because international human rights law applies only to individual persons, not corporations. This was a position that was, at the very least, rhetorically at odds with the Supreme Court’s much criticized holding in the Citizens United case: that corporations are persons for the purposes of exercising First Amendment rights. It seemed that it would be left to the Supreme Court justices to reconcile the incongruity of holding that corporations aren’t persons when they support torture abroad but are when they want to spend millions to influence U.S. elections.
But when the case came before the Court again on Monday, the apparent contradiction was no longer the central issue. Justice Anthony Kennedy—who wrote Citizens United and may have been especially sensitive on the question—had successfully changed the subject earlier in the year. At the previous term's oral arguments in February, Kennedy said that, in his mind, the case turned an argument made in an amicus brief by Jack Goldsmith of Harvard Law School: that “no other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.” The following week, the Supreme Court expanded the case to address the question Goldsmith had raised: Does the Alien Tort Statute, which allows people who aren’t U.S. citizens to bring suits in U.S. courts for violations of the law of nations, apply to conduct that took place outside the U.S.? That’s the question the justices took up on the first day of the new Supreme Court term. And the justices focused on the fact that the Obama administration, in a remarkable policy shift, changed positions in the case, moving from the anti- to the pro-corporate side.
In its initial brief last year, signed by Verrilli and State Department Legal Advisor Harold Koh, the White House took the position that any corporation could be held liable for crimes committed abroad under the Alien Tort Statute, even though the U.S. government's longstanding view had been the opposite. But after the oral argument in February, Edwin Kneedler, the deputy solicitor general who has served as a highly respected apolitical appointee in the office for more than three decades, argued in internal debates with the State Department that the government’s traditional view—that the Alien Tort Statute should not apply extraterritorially—was correct. Koh, the state department advisor, continued to vigorously argue the opposite position: In his view, as a scholar, human rights activist, and government official, U.S. courts need to be open to foreign victims of human rights abuses who can’t get justice in their own countries. But Verrilli, the Solicitor General, essentially sided with Kneedler rather than Koh. The second brief the government submitted to the Supreme Court argues that the Court should not allow the suit to go forward in this case because it involved Nigerian plaintiffs suing Dutch and British corporations for allegedly aiding and abetting the Nigerian military. The claim that civil suits alleging torture abroad shouldn’t proceed because both the plaintiffs and corporations are foreign was a compromise position because it left open the possibility that some suits against corporations might proceed if the parties had closer ties to the U.S. Nevertheless, Koh’s dissatisfaction with having lost this internal battle can be inferred from the fact that his name doesn’t appear on this second brief.
In the Supreme Court oral argument on Monday, the justices made much of the fact that the Solicitor General’s new compromise position was inconsistent not only with the one Verrilli took last February but also with the position of some of his predecessors who had argued even more broadly that the Alien Tort Statute doesn’t apply to extraterritorial human rights violations in any circumstances. “Your successors may adopt a different view,” Chief Justice John Roberts told Verrilli. “Whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.”
But the nuance of Verrilli’s position may be the point. His argument gives the justices an option for ruling narrowly against allowing the Nigerian torture victims’ suit to proceed in U.S. courts, without foreclosing the possibility that the result might be different if a U.S. corporation were involved. That’s an option that Chief Justice Roberts, who has pledged to try to persuade his colleagues to converge around narrow, unanimous opinions whenever possible, might be inclined to embrace. But Justice Kennedy, who almost never rules narrowly when he can rule expansively, seems more persuaded by Goldsmith’s sweeping argument that allowing any suits by aliens against corporations for human rights violations abroad, far from being a vindication of international law, is in fact a violation of international law.
If the Court does rule that these lawsuits are completely out of bounds, the battle will shift to Congress. In theory, Congress could, if it chooses, explicitly authorize human rights suits against foreign or domestic corporations, in the same way that that Congress, in the Torture Victims Protection Act of 1992, authorized suits against foreign individuals by torture victims who were prohibited from seeking remedies in the countries where they had been abused. In practice, however, thanks to Citizens United, corporations have even more influence in protecting their own interests in Congress than in the Supreme Court. That’s why, in the end, the Kiobel decision may have the effect of ensuring that corporations are treated like persons when they seek to influence elections but not when they aid and abet torture after all.