The ATS and the USG Government Response, a Query

by Kenneth Anderson

An additional puzzle about the Alien Tort Statute is that there seems to be no satisfactory account, so far as I know, of the US government response to ATS cases.

Sometimes the US government responds with a statement of interest; sometimes it does not.  Even when it does offer a statement of interest, my anecdotal impression (if there was data collected, I’d be very interested) is that the US government often responds late in the proceedings.  So far as I can tell – indeed, I’ve never heard anyone contradict this – there is very little about the USG response in ATS proceedings to suggest that it seeks to protect executive power or authority or authoritative expertise in pronouncing on international law or the foreign policy interests of the executive in ensuring, as a matter of principle, that these matters remain with the executive and not the courts.  There is little if anything in USG behavior to suggest that successive administrations since Filartiga have taken a stand on principle of seeking to rein in or otherwise narrow the ambit of the courts in these matters.  That seems to be true across decades and multiple administrations of each party.

I find this quite puzzling.  I would have thought that as a matter of principle or even just as a matter of institutional interests or institutional choice, successive executives would have sought on general grounds to restrain ATS suits.  At a minimum to assert at the beginning of cases that courts have to respect the interpretations of international law as given by the executive.  But administrations do not do so.  When they offer statements of interest, those declarations seem to be very much about the facts of particular cases.  Some litigators in this area have told me they think that the government wants to wait and see how the facts develop in order not to be caught in the position of having strongly taken the side of some party that turns out to have been genuinely awful.  I don’t really see this – it seems to me that you can still insulate yourself from that by asserting executive prerogative in every case without regard to the facts and prior to their exposition.

The persistence of this executive fade-out before the courts seems to me to require explanation, and I have not seen a good one forthcoming.  One can look for explanations that show the executive’s behavior to be rational in some way – easier to satisfy various interest groups while not appearing oneself to be involved, for example.  Or it can be explained on some view of disaggregated government among the various departments of government – lack of coordination or lack of consensus among key players within the executive.  But I am not at all sure these are persuasive as they stand, particularly given the general hands-off attitude by administrations of both parties over generations and what would otherwise seem to be a fundamental interest of the executive in turf protection if not something more principled.  Without some more granular explanation, they feel a bit like just so stories.

But the question takes on much greater importance – becomes more than merely an intellectual puzzle – as ATS suits potentially reach out to ensnare corporations from newly assertive places in the world, China or perhaps even India or other places.  Without any other connection or basis for jurisdiction except that ground of the ATS itself.  This I have discussed before.  But it thrusts the question of the role of the USG forward in a political sense.  It would perhaps be ironic – or perhaps instead merely a confirmation of other trends – if the Obama administration were to be the administration that succeeded in focusing the executive on reclaiming authority and ground from the courts in pronouncing on the content of international law and diminishing the power of the courts, in order to protect Chinese corporations working, say, in Africa, and by extension protect American government debt markets.

In the meantime, what accounts for the hands-off behavior of the executive toward what otherwise look encroachments upon the traditional turf of executive agencies and departments?

http://opiniojuris.org/2009/10/26/the-ats-and-the-usg-government-response-a-query/

4 Responses

  1. Could the explanation not simply be that the ATS is something that is primarily cared about by legal academics, and that the executive branch simply hasn’t been concerned enough to do more than respond if and when a particular case manages to catch its attention?

    That fits the pattern for government responses to ATS cases. At an institutional level, the government doesn’t  view “ATS cases” as a whole as an important subject for executive policy making, as cases are relatively rare and so far have lead to no drastic harm, so the government only gets involved when it happens to have a preferred outcome for an individual conflict.

  2. Of course, the Second Circuit in Filartiga benefited from an important Amicus Brief signed by lawyers from State and DOJ.  In the Kadic case, the Second Circuit took note of a letter denying immunity.  Our casebook (Paust, Van Dyke, Malone, International Law and Litigation in the U.S. (3 ed. 2009 — Thomson-West) at p. 473 notes that a Bush Admin. statement of interest was foolowed by a d. ct. to find “political question” but this was later reversed by the 9th Cir. in 2007.

  3. Jordan: Quite right, and in other cases as well – the government’s important statement in Agent Orange for example.  The sharpest version of my question is why successive administrations have not submitted briefs from the very beginning, and why they have not asserted some version of executive authority or authoritative interpretation.  Why not more protective of foreign policy prerogatives than any of the post-Filartiga administrations have been?

    SueSimp: It’s a fair point that it’s an academic’s thing, not so important to administrations.  But I would have thought that from the moment in which plaintiffs began to win corporate liability holdings, the issue was far more  important.  Maybe not.
  4. In my book, Justice Across Borders (Cambridge 2008), I conduct an extensive quantitative and qualitative analysis of US involvement in ATS cases (among other ATS issues).  The analysis includes interviews with lawyers from the Departments of State and Justice including the Legal Adviser.  For example, in District Court cases defendants prevail in 65% of ATS judgments without support from the US government and they prevail in 75% of judgments with US support.  At the Court of Appeals, defendants prevail in 70% of judgments without US support but only in 64% of judgments with US support.  I examine the motivations for filing statements/briefs and their effect in detail – both qualitatively and through regression analysis.  See the Law and Politics Book Review here and the H-Net Review here.

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