Kiobel Insta-Symposium:The Pyrrhic Victory of the Bush Administration Position in Kiobel

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs filed by the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

My friend John Bellinger over at Lawfare can rightly claim credit for keeping the extraterritoriality issue before the Supreme Court in Kiobel. Indeed, the Supreme Court’s conclusion that “principles underlying” the presumption against extraterritoriality apply to claims under the Alien Tort Statute (ATS) represents a victory for the Bush Administration’s legal position in ATS cases, an administration John served with distinction.

That Bush Administration legal position, however, marked a sharp break with past positions of the United States Government regarding extraterritorial application of the ATS. In 1980, the Carter Administration argued in Filartiga v. Pena-Irala that the ATS reaches claims by one alien against another alien for torture committed abroad. Indeed, the United States said that “a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation’s commitment to the protection of human rights.” In 1995, the Clinton Administration successfully supported application of the ATS to foreign non-state actors for human rights violations abroad in Kadic v. Karadzic, a decision that opened the door to the wave of corporate cases that shortly followed. Even the intervening Reagan Administration did not take the position that the ATS did not apply to conduct abroad.

It was not until 2004 that the United States argued for the first time, in Sosa v. Alvarez-Machain, that the ATS did not apply extraterritorially. The extraterritorial nature of claim in Sosa could hardly have escaped the notice of the Court, since the parallel Federal Tort Claims Act suit against the United States was dismissed under the FTCA’s foreign country exception. Yet not a single Justice in Sosa adopted the Bush Administration’s extraterritoriality position, and there are many parts of the Sosa opinion that only make sense on the assumption that the ATS applies to conduct abroad. Undaunted, the Bush Administration continued to press the extraterritoriality argument in nine nearly identical briefs filed between 2004 and 2008. Not a single appellate court adopted the argument—and many expressly rejected it. Not a single appellate court, that is, until the Supreme Court in Kiobel.

But upon reflection, there is also less to the victory of the Bush Administration’s position in Kiobel than meets the eye. Part IV of the Court’s opinion, coupled with Justice Kennedy’s observation that the opinion “is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute” and Justice Alito’s complaint that Kiobel “leaves much unanswered,” is a recipe for continued litigation. The Court’s observation that “it would reach too far to say that mere corporate presence suffices” should send chills down the spines of corporations domiciled in the United States (and their general counsels). Nor is the Court’s grant of certiorari in DaimlerChrysler AG v. Bauman likely to bring greater clarity. Although that case arose in the context of an ATS suit, the only issue on appeal concerns personal jurisdiction over a foreign company—an important issue to be sure, but one largely unrelated to the ATS and of little help to U.S. companies.

Chief Justice Roberts’s opinion in Kiobel invites Congress to clarify its intent with “a statute more specific than the ATS.” Congress did something similar in 1992 when it passed the Torture Victim Protection Act, authorizing civil claims for torture and extrajudicial killing abroad, while incorporating substantive definitions and procedural safeguards. The human rights and business communities would be well advised to seek common ground on a reasonable statute. The alternative would seem to be decades more litigation to answer the questions that Kiobel leaves open.