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Ashcroft: Amicus for Slave Labour?!?

| 22 Comments | 5 TrackBacks

Oxblog wants us to "flood the zone" on Myanmar. Fine - have we got a doozy for you. On Friday, Armed Liberal ran a story about business lobby groups opposing sanctions against this regime and others. Meanwhile, Randy of Beautiful Horizons broke a story that needs more attention on the Right side of the aisle.

John Ashcroft has filed an amicus brief seeking to get Unocal off the hook for using forced labor in the construction of an oil pipeline in Myanmar, one of the world's most despotic regimes. More commentary can be found here. As for my take...

First of all, I'm trying to see the difference here between the kind of behaviour Armed Liberal describes and shilling for Saddam's regiume because he had favourable oil contracts with your state oil company. Bluntly, I can't because it's the same damn thing.

Is it worse to shill for evil because it puts money in your pocket, as opposed to being motivated by political onanism? At least the former benefits someone, but in the end the result is similar. It's not possible to credibly hate the Saddam appeasement crowd while excusing this sort of thing. Just as ANSWER, Galloway et. al. need to be exposed as shills, so do these people.

As for Ashcroft - buddy, this is slave labour we're talking about. Is there something about "land of the free and home of the brave" you're not getting here? America may not be able to close the laogai, gulags, and related practices that fester in the world's totalitarian hellholes, but that doesn't mean you have to file legal briefs on behalf of those who profit from them.

It's (remotely) possible that there's a reasonable explanation for this, but it will have to come from somewhere else because I sure can't think of one. Maybe it is time for a new Attorney General down there. I initially wrote off the attacks on Ashcroft as typical leftist hysteria given their content and style, but an accumulation of events is starting to convince me that maybe they were right and I was wrong. Whatever was Ashcroft thinking in this case? Was he thinking?

Bueller? Anyone... Anyone?


· Law student Unlearned Hand comes through, with a case link and a additional background.

· Instapundit also weighs in with a useful Boston Globe article, and some trenchant observations.

· Max Power says Ashcroft's intervention is the right thing to do: "Simply put, the DOJ is right: the Ninth Circuit has interpreted a jurisdictional statute to create a private cause of action, and it's an incorrect view of the law that has allowed the hijacking of the courts to make extraterritorial claims for political purposes." He also distinguishes the case from Filartiga. Is he right? Read this, read him, and decide.

· Oxblog comments. Their dilemma is mine, too, but I might lean the other way on this one.

5 TrackBacks

Tracked: June 9, 2003 12:59 PM
John Ashcroft, from Gweilo Diaries
Excerpt: Fresh from banning Gay Pride Day at the Justice Department, the US Attorney General files an amicus brief in a
Tracked: June 9, 2003 5:00 PM
Doe v. Unocal from Unlearned Hand
Excerpt: In my class on Human Rights Law, we spent some time on Alien Torts Claim Act cases and on Doe v. Unocal in particular. This is a case in which Burmese peasants are suing Unocal to recover damages for the...
Tracked: June 10, 2003 12:10 AM
Stupid Idea from Kloognome.Com
Excerpt: Joe Katzman posted about the Justice Department brief against a suit filed by slaves against the company that paid for the "security" service that enslaved them. I asked for sources that weren't editorial in nature, and got them, including a...
Tracked: June 10, 2003 1:06 AM
Rambling Burma Post from Matthew Yglesias
Excerpt: Joe Katzman slams John Ashcroft (note that he really should be slamming Bush, Ashcroft is just a flunky) for favoring US corporate interests over the interests of Burmese slave laborers. Unlearned Hand has the legal backstory and David Adesnik chimes...
Tracked: June 11, 2003 2:00 AM
Are We Endorsing Slave Labor? from The Anti-Idiotarian Rottweiler
Excerpt: I really don't know, but it smells. I don't have the time to dig into it, nor am I a...


No defense of Ashcroft's amicus brief could satisfy me. The real problems arise from the attempt to determine how far the responsibility for the participation of slave labor extends.

Many products consumed in the U.S. are made in countries that tolerate or actively employ slave labor. To what extent does the individual consumer bear the odium for the enslavement of a worker whose products he buys? Does it matter whether the purchase is made knowingly or unknowingly?

The question is important, because it bears on whether the use of government's ability to close the borders to such goods would be morally defensible -- or morally obligatory.

I can't find it in me to hold consumers responsible for conditions they did not know about and would not knowingly support, but once knowledge is added to the balances, the situation becomes much murkier. And of course, a multinational corporation that uses forced labor has no moral defense.

But does this add up to a case for embargoing goods made in other countries, if they might have been made, in whole or in part, by forced labor? Suppose forced labor wasn't involved in "proximate" production, but was used in producing the raw materials that went into the products? What about subassemblies? How certain do we have to be about the knowing, willing collusion of responsible executives with slavemasters before we place blame and penalties? Ought the penalties to affect only knowledgeable executives, or ought the stockholders to be held responsible as well, whether they knew or not? Where does the line properly go?

I'm still not sure -- and I'd be extremely wary of anyone who delivered a simple, uniform answer in a tone of moral righteousness.

Do you have a non-commentary source for this?

I don't know enough at this point to have an opinion on whether Ashcroft is wrong on this one. However, it might not be as simple and straightforward as some would have it.

The US courts should not become a forum for foreign nationals to slug out their legal disputes with one another that have no real nexus with the US. To allow this to happen will lead to a couple of bad results.

First, it will tend to legitimate the intervention of the courts of other nations in matters to which they have no real nexus. Exhibit A here is, of course, the attempts to sue US nationals in Belgian courts for alleged human rights abuses in Iraq and Afghanistan. Just as the Belgian courts have no business hearing cases against US citizens for alleged violations in foreign countries that have not harmed any Belgian citizens (that we know of, anyway), the US courts have no business hearing cases against, say, Burmese citizens for alleged violations in Burma that have not harmed US citizens.

The second reason has to do with maintaining the legitimacy of US courts. A court is only legitimate when deciding matters within its jurisdiction. Just as the Belgian courts have no jurisdiction over matters involving US nationals in Iraq and Afghanistan, it is hard to see the basis for any US jurisdiction over matters which are purely internal to, say, Burma. Overextending your jurisdiction is a good way to piss away your legitimacy.

Now, there may be good reasons for US courts to exert jurisdiction over Burmese scumbags, but their mere status as scumbags does not make them subject to the jurisdiction of any court with a hankering to smack them around. We have jurisdiction over Osama bin Laden because he, or his agents, committed a tort on US soil. I'm not sure what basis we have for exerting jurisdiction over these Burmese warlords, but the question should not be passed over lightly in our eagerness to open up a can of legal whupass on them.

Now, Unocal we do have jurisdiction over, so if Unocal can be shown to be legally responsible for the abuses in Burma, they should fry. There may be a tryable case here, but at some point we have to recognize limits to the jurisdiction of US courts, unless we truly do want to be globocop.

T. Hartin, your last 2 paragraphs summarize my position well.

If this is the position, however, then the Amicus brief should seek simply to prevent extension of the existing legal doctrine and let Unocal stand or fall on its own after that. Yet that doesn't seem to be what Ashcroft has done.

Of course, I'm not a lawyer and I could be wrong. Any lawyers out there who think that IS what Ashcroft did here?

As always, the critical legal issue is buried in weasel words. In my post, I posed the question as "if Unocal can be shown to be legally responsible for the abuses in Burma." I don't really know what it would take for Unocal to be "legally responsible," but as a rule you are legally responsible for the actions of anyone that you hire to do something, such as provide security, for you. The basic idea is that the employer is vicariously liable for the actions of their employee.

How that would play out in the context of a case where the "employee" is a sovereign government that is generally immune from lawsuits is a mystery to me, but generally speaking, there has to be primary liability on the employee before the employer can be held vicariously liable.

I am not a lawyer, either, but I think that there are two issues here that merit attention.

1.) The issue of timing or in other words, why now, why this case? As I mentioned in my original post, the Reagan administration did not fle an amicus brief on the Filartiga case, this administration did not file an amicus brief in Presbyterian Church of Sudan, et al. v. Talisman Energy Inc. and they haven't filed an amicus brief in Raymonde Abrams v. Societe Nationale Des Chemins De Fer Francais.

2.) The fact that an amicus brief has been filed at all. What is so compelling about this case that the DOJ has to address this issue on behalf of an American oil company now, especially after the administration is touting its accomplishments as a protector of human rights in Iraq and vigorously asserting that the Iraq war had nothing to do with oil? Are they that blind to perceptions?

It just doesn't pass the smell test for me.

Regarding universal jurisdiction, I do know that this has been in existence for some time. Piracy has for centuries been subject to universal jurisdiction. The Convention Against Torture and the Convention Against Genocide also call for universal jurisdiction by the state parties that are signatories and have ratified these documents. The Pinochet case in the UK confirmed that regarding the CAT.

While the Torture Victims Protection Act may provide some relief in certain circumstances, it seems it would be time barred in this case, and secondly, it requires proof that the victim has exhausted all remedies in their home nation. How can these peasants in Burma attempt to pursue their claims in a Burmese court?

According to Earth Rights, "in September of 2002, a federal appeals court held that the plaintiffs had presented evidence that Unocal knowingly provided substantial assistance to the military in its commission of forced labor, murder and rape, while the military secured the project and built project infrastructure. Accordingly, the court held that Unocal could be held liable for aiding and abetting the military’s abuses."

Why not let it go forward?

Randy - Works for me.

A defense of the DOJ position on my blog.

Definitely check Instapundit, Max Powers, and the rest. It turns out that the real wrong-doer, the government of Burma, is not a party because it has sovereign immunity. It also turns out that TotalFina ELF, the corrupt French oil company, ran the joint venture, and is also not a party. Unocal is named solely because it is the only person remotely involved that the US can claim any jurisdiction over, and is being asked to pay for the actions of a joint venture that it had no control over.

It also turns out that the 9th Circuit's position is, yet again, contary to that of the majority of other courts that have considered the issue. The basic problem here is that the 9th Circuit is trying to convert a statute that gives jurisdiction into a statute that creates a claim.

The problem with "universal" jurisdiction is that it severs jurisdiction from nexus and accountability, leaving the court open to politicization. If a US court can try and convict someone from, say, France, who has no connection to the US, then there are no checks or balances, no accountability of any kind, on what the court does. This is not true when courts are limited to trying only people who have real connections to the court's community.

It is exceedingly odd, isn't it, that (a) universal jurisdiction is a project of the left, and (b) it has only ever been invoked against conservative or right-wing governments and individuals. This is even odder when you realize that in recent years most of the blood has been shed, and most of the worst human rights violations have been committed, by left governments and individuals. Why no universal jurisdiction lawsuit against Castro, or Pol Pot, or Kim Sung Il, or Kaddafi, or Yasir Arafat, or the Red Chinese, or any of the many many surviving members of the Communist regimes of Eastern Europe? Why only universal jurisdiction lawsuits against Pinochet and the US?

A court is perceived as political has lost its legitimacy. Until universal jurisdiction can get beyond being a political tool, and I don't think it can because the critical elements of accountability are not there, it won't be legitimate.

Re: TotalFina ELF, The ATCA has also been used in cases against Talisman, a Canadian Oil Company as well as Societe Nationale Des Chemins De Fer Francais, a French Company. I don't know why then it couldn't be used against TotalFina ELF.

>It is exceedingly odd, isn't it, that (a) universal jurisdiction is a project of the left, and (b) it has only ever been invoked against conservative or right-wing governments and individuals.

Really? Slobodan Milosevic and some of his cohorts were communists when Yugoslavia was communist and there have been successful prosecutions in these cases.

I don't know the political leanings of those who have been successfully prosecuted in Rwanda, but Hussein Habre, the former dictator of Chad is under indictment as well as Charles Taylor of Liberia and I don't believe they are right-wingers.

True enough, Randy, although Slobo no longer bills himself or is really called a communist by anyone (I note on a quick Google search that various Communist parties have come to his defense). I don't think the African kleptocrats really register on a left-right scale.

And none of this really answers the question of why lefty dictators have gotten a free pass from the human rights prosecutors, which in turn tends to politicize and thus delegitimize the whole project.

There are a plethora of brutal human rights abusers living out their lives in peace right there in Europe, all of whom happen to have done their dirty work in the service of left-wing governments. Eastern Europe is a target-rich environment for human rights prosecutors asserting universal jurisdiction, so they have to cross the ocean and go after Pinochet? Pinochet, after he has been out of power for decades, is a target, but its hands off Castro while he is actively violating human rights? C'mon. Legitimacy is earned, and so far the supporters of universal jurisdiction haven't earned it in my book.

>And none of this really answers the question of why lefty dictators have gotten a free pass from the human rights prosecutors, which in turn tends to politicize and thus delegitimize the whole project.

Well, as I said Milosevic and his ilk did not get a free pass, Pincohet never faced justice for his crimes, so your claim on its face is not accurate. Also Mengistu, the former communist dictator of Ethiopia fled South African exile facing prosecution to shelter by Mugabe in Zimbabwe.

Czechoslovakia (back when it existed in that form) agreed not to pursue action against it's former communist leaders, largely at the behest of Vaclav Havel. It was wrong, wrong, wrong for Erich Honecker to be released from custody to go to Chile, but at least he was prosecuted.

The right has also been openly hostile to universal jurisdiction. When Pinochet was being detained in London, his supporters said that it was a matter for Chile to decide, ignoring the fact that through self-amnesty and creation of the Senator for Life position with parliamentary immunity, he couldn't be prosecuted there.

What would be more constructive would be for the right to support such efforts instead of seeking to undermine them as they dd in the Pinochet case. It will certainly make the efforts to go after the Castros of the world a lot more credible and I'm all for going after him.

Randy Paul said: "the Reagan administration did not fle an amicus brief on the Filartiga case."

This sentence is technically true, but vastly misleading:

1. The Filartiga case was argued in the fall of 1979 and decided by mid-summer 1980. During this time period, the Reagan administration did not even exist. So while it's technically true that the Reagan administration didn't file an amicus brief, well, you get the point.

2. The Carter administration, on the other hand, DID file an amicus brief. It's not available online, so I can't say what position they took.

Here's the headnote from LEXIS, for your information:

630 F.2d 876, *; 1980 U.S. App. LEXIS 16111, **

DOLLY M.E. FILARTIGA and JOEL FILARTIGA, Plaintiffs-Appellants, v. AMERICO NORBERTO PENA-IRALA, Defendant-Appellee

No. 191, Docket 79-6090


630 F.2d 876; 1980 U.S. App. LEXIS 16111

October 16, 1979, Argued
June 30, 1980, Decided


Appeal from a judgment of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, District Judge, dismissing appellants' complaint for want of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12©.


CORE TERMS: torture, international law, human rights, inhuman, degrading, treaty, cruel, declaration, alien, federal jurisdiction, customary, criminal proceeding, binding, civil action, public official, national law, universal, instigation, civilized, domestic, common law, Law of Nations, custom, usage, subject matter jurisdiction, jurisdictional, transitory, conveniens, offender, observe

LexisNexis™ HEADNOTES - Core Concepts - Show Concepts

COUNSEL: Peter Weiss, New York City (Rhonda Copelon, John Corwin and Jose Antonio Lugo, Center for Constitutional Rights, New York City, and Michael Maggio, Goren & Maggio, Washington, D. C., of counsel), for plaintiffs-appellants.

Murry D. Brochin, Newark, N. J. (Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, P. C., Newark, N. J., of counsel), for defendant-appellee.

Irving Gornstein, Atty., Dept. of Justice, Washington, D. C. (Drew S. Days, III, Asst. Atty. Gen., John E. Huerta, Deputy Asst. Atty. Gen., Roberts B. Owen, Legal Advisor, William T. Lake, Deputy Legal Advisor, Stefan A. Riesenfeld, Charles Runyon and Linda A. Baumann, Attys., Dept. of State, Washington, D. C.), for the U. S. as amicus curiae.

Donald L. Doernberg, New York City, and David S. Weissbrodt, Minneapolis, Minn., for Amnesty International-U. S. A., Intern. League for Human Rights, and the Lawyers' Committee for Intern. Human Rights as amici [**2] curiae.

Allan Abbot Tuttle, and Steven M. Schneebaum, Washington, D. C., for The Intern. Human Rights Law Group, The Council on Hemispheric Affairs and the Washington Office on Latin America as amici curiae.

Very good research, Stuart. Thanks! If anyone out there can tell us where the Carter administration came down on this one, let us know. It could be decisive to this controversy.

TotalFina is being sued, but in Paris (in the French courts) and Brussels (the European courts). They were originally a part of the suit in the US too, but they somehow got out of it; I'm not sure what happened.


My mistake. My chronology was off as I thought the final appeal at the 2nd Circuit level was denied in 1981 and that it was not pursued any further as Pena-Irala had fled back to Paraguay. I apologize.

In any event, the present Bush administration did not (to my knowledge) file an amicus brief with regard to the Talisman Energy case filed in 2001, nor have they done so (to my knowledge) with the Raymonde Abrams v. Societe Nationale Des Chemins De Fer Francais case which is on appeal.

The lawyers Committe for Human Rights has a short backgrounder here (Acrobat reader required). They mention that the 2nd Circuit, 11th Circuit and 9th Circuit having supported actions based on the ATCA. They mention that the plaintiffs would have to meet a high standard to prevail when the defendant is a corporation, but "At the same time, we reject the claims of those who contend – without any compelling evidence – that courts and corporate defendants are facing a proliferation
of ATCA lawsuits, when in fact there have been only a small number of such cases filed to date, with most still at only a preliminary stage."

Having actually looked at the DOJ brief, at, it is not clear that the Justice Dept. is right, but it does seem intellectually defensible.

I don't know what past administrations have done in other cases, but I don't see that the question is relevant. The Buchanan administration did not try to prevent the Confederate seccession, therefore Lincoln should have allowed it to go forward because Buchanan didn't act? That's the kind of argument being made there.

I note for the record that, even if Unocal pays through the nose on this, it is not clear that anyone still stuck in Burma will be any better off.

That said, if the Supreme Court ultimately finds that U.S. courts have jurisdiction, then the suit would seem to turn on questions of fact: did Unocal know the Burmese military would behave the way it did? Should it have known? Did it make any attempts to stop their atrocious behaviour?

Stuart Buck says:
"But I have a visceral trust for the sort of 'legal analysis' that consists merely of 1) deciding ahead of time which side you like better, 2) claiming that your preferred side should automatically win regardless of what the law actually says (this is 'prejudice' in the most literal sense) and 3) claiming that anyone with a different view of what the law says must be an evil person because they didn't like your preferred outcome. You'd think the left would be more attuned to the vacuousness of this sort of argumentation; think of how many left-wing defense lawyers have been accused of supporting criminals when they got someone off 'on a technicality' [i.e., by following the law]."

But claiming that Ashcroft and Co. are defending the use of slave labor would appear to be a lie.

Stuart, also, to his credit, acknowledges that he has not read the brief in response to the DOJ brief (which was also easy to find). It's in MicroSoft Word format here.

Mr. Paul: Perhaps your Google skills are better than mine. I gladly cede you that point, although I'm not sure why you deem it so significant.

I can't get your link to the plaintiff's brief to work. Can you try again?

I'll let the entire URL get listed rather an HTML link this time:

It's not so much googling skills. I just note that Earth Rights, the Lawyers Committee for Human Rights and Human Rights Watch, three organizations backing the use of the ATCA under these circumstances also provided a link to the DOJ brief.

*More on Unocal* (scroll down to "Unocal can stand trial for benefiting from Burma's slaving regime", and check out Forbes reference)

Great link, Nikita.

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