In the late afternoon of October 17, United States Senator Dianne Feinstein took an unlikely position, given her liberal Bay Area constituency. She introduced a Senate bill to amend the Alien Tort Claims Act, a law written in 1789 that lets foreigners sue in American courts.
Her bill might once have been politically safe, but over the past decade human-rights lawyers have dusted off the antiquated statute and used it to go after US corporations for their complicity in overseas abuses. Burmese villagers, for instance, used it to sue Unocal for allegedly enslaving them during construction of a pipeline -- the company settled for an undisclosed amount in 2004.
The human-rights community, which now views the statute as an indispensable counterbalance to multinational power, reacted with outrage to Feinstein's bill. Her move was a betrayal, they say, and it showed she was taking marching orders from her corporate donors.
In her statement introducing the bill, Feinstein said it was high time that Congress step in and clarify the act's limits: "This two-hundred-year-old law has spawned dozens of legal cases involving US multinational companies, human-rights groups, foreign plaintiffs, the State Department, and millions of dollars in litigation costs," she said. "Numerous companies in California are in the midst of these lawsuits as defendants."
One of those companies is locally based oil giant Chevron, which is embroiled in litigation over alleged murders and human-rights abuses in Nigeria in the late 1990s. When attorneys for the Nigerian plaintiffs examined Feinstein's bill, they discovered serious ramifications for their lawsuit. "There were about eight different ways that her proposal would have gutted this case," says Cindy Cohn, one of the attorneys. "It's clear this was written by a lobbyist for somebody on the other side of the Alien Tort Claims Act cases, and I think it's likely that somebody was Chevron -- although I don't know for sure," she says. Chevron has contributed about $30,800 to Feinstein's electoral campaigns since 1989, according to the Center for Responsive Politics.
A Chevron spokesman wouldn't say whether the company participated in the bill's writing. However, its lobbying disclosure reports from 2004 and 2005 list "Nigerian litigation effort -- pending litigation regarding alien tort statute" as a specific lobbying issue.
With the media consumed by Harriet Miers, natural disasters, and pending White House indictments, the senator's proposal hardly made a blip on the national radar, but it set off such a furor among human-rights groups that Feinstein quickly backpedaled, and essentially withdrew the bill eight days after introducing it. She now doesn't care to talk about the short-lived anomaly that was the Alien Tort Statute Reform Act.
The bill's origins and the senator's motivations are no longer relevant, insists Feinstein's spokesman, Howard Gantman. "The bill is not moving at this time; that's the current status," he says. "She said that she does not want any action on this legislation until she can meet with the folks who have raised concerns. She will be meeting with folks as time allows." Gantman says he doesn't have a list of the interest groups or lobbyists Feinstein's staff met with to prepare the bill, and declined to make any staff members available for questions, citing time constraints.
Human-rights advocates believe Feinstein's staff is simply embarrassed. "I think they weren't paying attention," Cohn says. "It looks like this was sold to her as a slight correction to the Alien Tort Claims Act. ... I think they sold her a pig in a poke. They tried to convince her this was a tiny little correction, when in fact it was a complete gutting of the law."
America's founders saw fit to include the alien tort statute in the Judiciary Act of 1789, but they left it vague. The entire statute is one sentence: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." At the time, it was intended primarily to give legal recourse to foreign ambassadors attacked on US soil, and to allow foreign sea captains to prosecute American pirates. Now human-rights advocates and corporations are snarled in a quarrel over how to interpret that sentence -- and who should interpret it.
"We don't think Congress needs to jump in," says Eric Biel, deputy director of DC operations for the nonprofit Human Rights First. "The courts are continuing to weed out the strong claims from those that are lacking. Decisions are coming down on a regular basis. This is not a situation where the courts are clamoring for advice from Congress."
Biel notes that it's been only 25 years since a landmark case revived the alien tort statute, and only ten years since it was first used to sue a corporation. With a number of cases now winding through the court system, Biel and his colleagues are inclined to let upcoming decisions by judges and juries define the law.
Corporate America, however, is less sanguine about leaving matters to the courts. In dramatic human-rights cases, juries are likely to be swayed by emotion, says Gary Clyde Hufbauer of the Institute for International Economics: "The traditional thing that happens when you get to the jury is, if there's a harm, juries tend to think someone should pay." In Awakening Monster, his 2003 monograph regarding the alien tort statute, Hufbauer argued that talented trial lawyers would sue the biggest US corporations, threatening years of bad publicity and court costs and demanding massive settlements. "Legislation can most efficiently correct the unlimited sweep of [alien tort statute] claims," he wrote.
Feinstein's bill proposed drastic changes. It allowed the president to dismiss any case that might have a negative impact on foreign policy. It also mandated that plaintiffs exhaust all legal avenues in their home countries before seeking recourse here, which raised the possibility of plaintiffs forced to spend years battling corrupt legal systems in countries such as Burma and Sudan, where suing government-favored corporations can have deadly repercussions.
Finally, and perhaps most seriously, Feinstein's bill upped the defendant's standard for liability from the current "aiding and abetting" of a crime to "direct participation with specific intent to commit the alleged tort." Such a provision, advocates say, would doom most suits against corporations, including the Chevron case.
Bowoto v. ChevronTexaco, which is scheduled for trial in federal court next October, hinges on two incidents in which armed Nigerian soldiers attacked villagers who protested Chevron's environmental practices there. The soldiers killed at least seven people, wounded others, and set fire to two villages. Plaintiffs allege that Chevron officials organized, authorized, and paid for the attacks, even if they didn't do the dirty work themselves. Feinstein's liability provision, if passed, might have given Chevron a way out.
In the days after Feinstein introduced Senate Bill 1874, a variety of human-rights groups mobilized their supporters to phone and e-mail the senator's office. Eric Biel and his allies called her legislative director, Peter Cleveland, and got a meeting that week. "We were very concerned coming in, and frustrated that this bill had been introduced without the potential to comment on it before," he says. "But it was very cordial and productive. [Cleveland] listened, and he acknowledged that we were raising some legitimate concerns."
On October 25, Feinstein wrote to Senator Arlen Specter, chairman of the judiciary committee, asking him to schedule no hearings until she could clarify certain provisions. "I believe that the legislation in its present form calls for refinement in light of concerns raised by human-rights advocates," she wrote.
The jury is out on whether Feinstein will let the proposal die quietly or attempt revisions later. But even if she opts out, a more conservative senator with less to lose in his district could revive the proposals. "Certainly that has always been a threat," says attorney Paul Hoffman, who represents plaintiffs in several pending alien tort cases. "We're taking on powerful interests that have the resources and the ability to get to legislators. On the other hand, we're supported by a pretty strong human-rights community that feels very strongly about this statute. It would be hard for Congress to pass something like the Feinstein bill, because it's such a clear anti-human-rights position."
As long as opponents remain vigilant, he implies, they may be able to use the shame game to their advantage.
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