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Why It’s Not Surprising Syria Is Destroying Its Chemical Weapons

by Kevin Jon Heller

A couple of weeks ago, Mother Jones blogger Kevin Drum said he was surprised that Syria has, by all accounts, voluntarily given up its chemical-weapons capability:

I don’t really have any comment about this, except to express a bit of puzzlement. As near as I can tell, Bashar al-Assad is really and truly sincere about destroying his chemical weapons stocks.1 But why? I very much doubt it’s because he fears retaliation from the United States. And given his past behavior, it’s hardly likely that it’s driven by feelings of moral revulsion.

So what’s his motivation? For reasons of his own, he must have decided that he was better off without chemical weapons than with them. Perhaps it has to do with the internal political situation in Syria. Or maybe Russia got fed up for some reason. But it’s a bit of a mystery, and not one that I’ve seen any plausible explanations for.

I don’t think it’s a mystery at all. Here is the explanation:

Forces loyal to Syrian President Bashar Assad have firmly seized the momentum in the country’s civil war in recent weeks, capturing one rebel stronghold after another and triumphantly planting the two-starred Syrian government flag amid shattered buildings and rubble-strewn streets.

Despite global outrage over the use of chemical weapons, Assad’s government is successfully exploiting divisions among the opposition, dwindling foreign help for the rebel cause and significant local support, all linked to the same thing: discomfort with the Islamic extremists who have become a major part of the rebellion.

The battlefield gains would strengthen the government’s hand in peace talks sought by the world community.

Both the Syrian government and the opposition have said they are ready to attend a proposed peace conference in Geneva that the U.S. and Russia are trying to convene, although it remains unclear whether the meeting will indeed take place. The Western-backed opposition in exile, which has little support among rebel fighters inside Syria and even less control over them, has set several conditions for its participation, chief among them that Assad must not be part of a transitional government — a notion Damascus has roundly rejected.

“President Bashar Assad will be heading any transitional stage in Syria, like it or not,” Omar Ossi, a member of Syria’s parliament, told The Associated Press.

The government’s recent gains on the outskirts of the capital, Damascus, and in the north outside the country’s largest city, Aleppo, have reinforced Assad’s position. And the more the government advances, the easier it is to dismiss the weak and fractious opposition’s demands.

As I have pointed out before, the US’s obsession with chemical weapons was manna from heaven for Assad. There is still no hard evidence that Assad personally ordered the Syrian military to use chemical weapons, and it would have been suicide for anyone associated with the Syrian government to risk US military intervention by using them again. Assad thus essentially traded his strategically useless chemical-weapons capability for the right to wage a ruthless counter-insurgency with impunity. That trade has obviously worked — there is almost no chance at this point that the rebels will overthrow Assad’s government, and it is equally unlikely that Assad will ever step down as part of some kind of negotiated peace agreement. Why would he? He is winning the war, and the West has essentially lost interest in the mass atrocities he has committed, and continues to commit, against innocent Syrian civilians. Indeed, the Syrian military is now routinely using incendiary weapons to kill civilians, yet the West remains silent.

But at least Assad no longer has chemical weapons. Success, right?

Autonomous Weapons and a Campaign for a Treaty Ban

by Kenneth Anderson

The debate over autonomous weapons is not so visible in the United States, but the ban campaign launched by Human Rights Watch a year ago – an international NGO coalition called the “Campaign to Stop Killer Robots” – has been quite active in Europe and at the UN, where a number of countries raised the issue in their statements to the General Assembly’s First Committee (disarmament issues).  Matthew Waxman and I have been writing about this issue for several years; we have a short policy paper on the topic available at SSRN, “Law and Ethics for Autonomous Weapon Systems,” and we’re pleased to note our op-ed in the Wall Street Journal on Monday (November 4), “Killer Robots and Laws of War.”  We argue against a ban, on a number of grounds (it can be found open access at RealClearPolitics, here).  Here are a couple of grafs from midway through the piece (later on I’ll add links to the ban campaign and some other resources; must go teach class!):

[A] ban is unlikely to work, especially in constraining states or actors most inclined to abuse these weapons. Those actors will not respect such an agreement, and the technological elements of highly automated weapons will proliferate.  Moreover, because the automation of weapons will happen gradually, it would be nearly impossible to design or enforce such a ban. Because the same system might be operable with or without effective human control or oversight, the line between legal weapons and illegal autonomous ones will not be clear-cut.

If the goal is to reduce suffering and protect human lives, a ban could prove counterproductive. In addition to the self-protective advantages to military forces that use them, autonomous machines may reduce risks to civilians by improving the precision of targeting decisions and better controlling decisions to fire. We know that humans are limited in their capacity to make sound decisions on the battlefield: Anger, panic, fatigue all contribute to mistakes or violations of rules. Autonomous weapons systems have the potential to address these human shortcomings. No one can say with certainty how much automated capabilities might gradually reduce the harm of warfare, but it would be wrong not to pursue such gains, and it would be especially pernicious to ban research into such technologies.

That said, autonomous weapons warrant careful regulation. Each step toward automation needs to be reviewed carefully to ensure that the weapon complies with the laws of war in its design and permissible uses. Drawing on long-standing international legal rules requiring that weapons be capable of being used in a discriminating manner that limits collateral damage, the U.S. should set very high standards for assessing legally and ethically any research and development programs in this area. Standards should also be set for how these systems are to be used and in what combat environments.

The Nationalists Strike Back: The “No-Spy” Agreement Solution to the NSA Spying Scandal

by Julian Ku

I agree with Peter that there is a move to universalize (through accretion) a norm against spying via Article 17 of the ICCPR.  But unlike Peter, I think it will get nowhere.  Instead, I was struck by how the German complaint against the NSA program has not really been phrased in terms of how it violates international norms or laws.  Rather, it seems that the Germans (and French) are really hurt because they don’t have a “no-spy” agreement with the U.S. like Canada, the UK, Australia, and New Zealand do (The so-called “Five Eyes” or AUSCANNZUKUS)

In other words, the problem is not that spying itself is illegal or morally wrong, but that it is illegal and morally wrong to spy on your allies and friends.  Spying on other countries might very well be morally and legally justified (e.g.: North Korea, Iran, China, Russia).  A universal anti-spying norm could very well be the opposite. Indeed, it seems unlikely that Germany and France would seriously support a universal anti-spying norm that would constrain their own very robust spying efforts.

With this in mind, it is worth considering whether and how the U.S. should adopt new “no-spy” agreements, something President Obama seems willing to consider.   I actually think a “no-spy” agreement is a better approach than unilaterally disarming in the spy wars.  Do we really think the French will stop trying to spy on the U.S. once the U.S. pledges to stop spying on France?  Better to at least commit the French to a deal.

From a foreign relations law perspective, “no spy” agreements are curious.  They are sole executive agreements and they may or may not have a binding character under international law. Certainly, they are not formal treaties.  The U.S. Congress probably has incomplete knowledge of exactly what is in these agreements and how they are operating.

Stewart Baker is already up with congressional testimony (dated today) on criteria for any new “no-spy” agreements.  Interestingly, the main thrust of his testimony is that Congress should start exercising a little oversight, at least if the U.S. starts buying off allies with new “no spy” agreements.  He has some pretty stringent requirements (a cooling off period for any new agreements that must all be submitted to Congress for review, a report on compliance,etc).  He doesn’t go so far as to require Congressional approval for any new no-spy agreements, but he might as well.  I doubt Congress would go that far, and I think there will be some questions over whether Congress has the legal authority to constrain these kinds of executive agreements.

In any event, my prediction is that the fallout from the latest NSA scandal will be a flurry of “no-spy-on-you” promises and then a series of new “no spy agreements” for certain favored “allies”.  I think Germany will talk about a universal anti-spying norm, but this initiative will eventually die largely because no large nation really wants it.

Kiobel and the Resurgence of the Traditional Bases of Jurisdiction in the Alien Tort Statute

by Kenneth Anderson

Reading Roger’s post last week about how lower courts are interpreting the Supreme Court’s ATS ruling in Kiobel made me recall that I’ve fallen down in posting papers to SSRN – including a new one in the Cato Supreme Court Review 2012-2013, “The Alien Tort Statute’s Jurisidictional Universalism in Retreat.”  The article (chatty and speculative, be warned, an essay aimed at a broader audience than ATS specialists or international law scholars) tries to set Kiobel and, for that matter, the ATS itself, in a wider frame of what jurisdiction is supposed to mean beyond its technicalities.  It contrasts the sweeping universalist language of 1980s-era ATS suits, and the belief of people like Judge Irving Kaufman (who wrote the celebrated Filartiga opinion) that they were pronouncing on “international law ” through the exercise of universal jurisdiction, even though it happened to be in a US district court and applying distinctly US concepts through and through, with Kiobel’s return to traditional jurisdictional categories.

Whether the Chief Justice’s application of the presumption against extraterritoriality or Justice Breyer’s more capacious, yet still traditionally grounded, tests for jurisdiction, Kiobel signaled that the traditional grounds found, for example, in the Restatement of Foreign Relations are the ones that matter.  One could say, of course, that this has been true for a while.  After all, arguing that the ATS might require some conduct by someone that constitutes a violation of the law of nations, but doesn’t take into account whether the law of nations recognizes that someone as having the legal capacity to violate the law of nations, and so merely a domestic statute providing a domestic civil remedy for something that need not be international law as such, but merely conduct that would, if done by some actor with legal capacity, violate international law – well, that isn’t making any sweeping assertions about being international law or universal jurisdiction for the application of international law.  It’s just a peculiar American statute that gate-keeps liability with a weirdly counterfactual reference to international law as it might be.

International law in the subjunctive mood, maybe we could say.  But in that case, treating the statute as merely a domestic one with a weirdly constructed trigger, invoking a “law of nations” that we don’t mean the way other people mean it, argues strongly for a traditional approach to jurisdiction – it’s not universal jurisdiction anymore, because we’re not pretending that our reference point is actually universal, but instead merely a claim of extraterritoriality.  So it doesn’t seem quite so strange that the Chief Justice would invoke the presumption against extraterritoriality, because the thing, the statute, that plaintiffs propose to apply extraterritorially isn’t truly a claim of universality, either. (more…)

Eric Posner on the Coming Death of the ICC

by Kevin Jon Heller

Eric Posner has a new Cassandra column at Slate, this latest one foretelling the doom of the ICC. There isn’t much point in disagreeing with his basic thesis; no one knows at this point — not him, not I — whether the ICC will succeed. It is possible, however, to take issue with a number of assertions that Posner makes in his article. Some are unfair; others are simply wrong.

If anyone ought to be prosecuted for war crimes, it’s this reviled leader, who almost certainly directed poison gas attacks against civilians. But as Joshua Keating explained in Slate, it’s not going to happen. This, just the latest blow to the ICC, illustrates once again why the prospect of international justice through global courts is ever receding—and why the court’s own days may be numbered.

This assertion falls into the unfair category. As Alana Tiemessen pointed out on twitter, the ICC can hardly be blamed for the failure of the Security Council (for now) to refer Assad to the Court. And, of course, the assertion simply ignores the fact that the Security Council has referred controversial situations to the Court in the past. Posner could have acknowledged Darfur and Libya. He could have acknowledged how the Darfur referral has made it considerably more difficult for Bashir to function as Sudan’s head of state. (See, e.g., the ongoing controversy over his desire to travel to the US to attend the UN General Assembly, which will never happen.) If Posner wanted to say something critical, he could have pointed out that the real problem is the Security Council’s failure to back up its referrals, either financially or in terms of enforcement. But that would have simply highlighted the fact that the problem is the Security Council, not the ICC.

Instead, the worst of the bad guys were tried at Nuremberg and in Tokyo. But the postwar proceedings faced a problem. Hitler’s and Tojo’s invasions of innocent countries—and even Hitler’s massacre of civilians at home—did not violate any rule of international law that came with personal criminal liability. Leaders were tried and punished nonetheless, but doubts about legitimacy lingered, since the trials lacked a basis in international law even while they condemned defendants for violating it.

Both unfair and wrong. Posner simply elides the difference between aggression, crimes against humanity, and war crimes with regard to retroactivity…

Does the Washington Post Editorial Page Have ANY Standards Left?

by Kevin Jon Heller

Apparently not, because yesterday’s war propaganda editorial by Sebastian Junger beating the drum for attacking Syria is just spectacularly awful. I’ve been out of the fisking game for a while, but the editorial simply can’t pass unmentioned.

Every war I have ever covered — Kosovo, Bosnia, Sierra Leone and Liberia — withstood all diplomatic efforts to end it until Western military action finally forced a resolution. Even Afghanistan, where NATO troops stepped into a civil war that had been raging for a decade, is experiencing its lowest level of civilian casualties in more than a generation.

When you’re citing Afghanistan — now in its 12th year of conflict, with tens of thousands of civilian casualties, millions of refugees, 3300+ dead US soldiers, and a price tag nearing $500 billion — as an example of successful Western military action, you should probably just stop, delete your file, and go play with your kids.

(But I do like the slogan for the US: “Year 12 in Afghanistan: Lowest Civilian Casualties Ever!”)

That track record should force even peace advocates to consider that military action is required to bring some wars to an end. And yet there’s been little evidence of that sentiment in American opposition to missile strikes against military targets in Syria.

Obama has specifically disclaimed any intention to end the Syrian civil war through military action. But whatever…

Obama’s “Credible Threat” of Military Action Against Syria

by Kevin Jon Heller

In his speech yesterday, Obama predictably took credit for the latest developments regarding Syria’s use of chemical weapons:

In part because of the credible threat of U.S. military action, as well as constructive talks that I had with President Putin, the Russian government has indicated a willingness to join with the international community in pushing Assad to give up his chemical weapons. The Assad regime has now admitted that it has these weapons, and even said they’d join the Chemical Weapons Convention, which prohibits their use.

Such shameless credit-mongering is more than a little difficult to swallow. Had Syria’s new willingness to give up its chemical weapons materialized two weeks ago, when Obama was still rattling his sabre and promising to attack Syria without congressional authorization, it would have been reasonable to conclude that the “credible threat of US military action” was the decisive factor in Assad’s capitulation. But now? Just days after Obama acknowledged that it would be very difficult for him to attack Syria against the will of both Congress and a large majority of the American people? Sure, he hedged a bit, insisting that he has the authority to attack Syria anyway. But I doubt many people (especially Assad) take Obama’s hedge seriously — defying the will of Congress would at a minimum lead to the extremist House holding him in contempt, and it could well lead to a foolish and ultimately doomed attempt to impeach him. The last thing Obama needs is to spend the final few years of his presidency dealing with either possibility — especially given that attacking Syria would accomplish next to nothing from a military standpoint and runs the risk of dragging the US far more deeply into the Syrian civil war than Obama wants.

The idea that the latest diplomatic developments are attributable to the US’s “credible threat” of military action in Syria, then, is anything but credible. Indeed, I’d like to suggest an alternative explanation, one that leads me to be relatively optimistic about the fate of the Russian proposal: this is a diplomatic dream come true for Assad. (And Russia, for that matter.) Although I think there is little doubt left that Syria’s military used chemical weapons against civilians, there is still no evidence that Assad ordered their use. The new Human Rights Watch report specifically concludes that the Syrian government is responsible for the Damascus attack, but it does not claim that Assad himself was responsible for them. And a German newspaper has claimed that “high level national security sources” in the German government believe that Assad “did not personally order last month’s chemical weapons attack near Damascus… and blocked numerous requests from his military commanders to use chemical weapons against regime opponents in recent months.”

I have no idea whether the German report is true, and I’m skeptical of the claim that Assad actively blocked the use of chemical weapons. But I find it very difficult to imagine that Assad was behind the Damascus attack. Had the attack occurred last year, when it looked (at least for a time) like the rebels might actually be able to overthrow the government, I would have had no problem believing that Assad was behind it. He’s clearly a monster, and I’m sure he would use any weapon in his arsenal as a last resort. But why now? Why would Assad use a weapon that has very little tactical military use when it seems clear that the rebels are slowly losing the war? Assad may be a monster, but he’s not an irrational one. He had to have known that using chemical weapons so openly would be of little military benefit and would run the risk of international condemnation and even military intervention. So I find it unimaginable that he would have used them anyway.

If Assad was not responsible for the attack, and if he thinks he is going to win the civil war, the Russian proposal for avoiding US military intervention is a fantastic solution to his international problems. Assad gives up weapons he has no intention of using anyway, and in exchange he reaps the diplomatic benefits of giving them up and avoids being attacked by the US. And, of course, he remains free to keep on killing innocent civilians with conventional weapons, which the US has made clear it has no intention of using force to stop. As I said, a dream come true for Assad.

Obama can claim all he wants that he’s responsible for the possibility of Syria giving up its chemical weapons. In reality, it’s just as plausible that Assad has played him like a fiddle.

What’s So Terrible About Chemical Weapons?

by Kevin Jon Heller

Yes, the title is intended to be provocative. And yes, I think chemical weapons are indeed terrible. But statements like this — offered by John Kerry in thinly-veiled support for using military force against the Syrian government — still give me pause (emphasis mine):

What we saw in Syria last week should shock the conscience of the world. It defies any code of morality. Let me be clear. The indiscriminate slaughter of civilians, the killing of women and children and innocent bystanders by chemical weapons is a moral obscenity. By any standard, it is inexcusable. And despite the excuses and equivocations that some have manufactured, it is undeniable.

I don’t get it. Why is the indiscriminate slaughter of civilians with chemical weapons unacceptable, but not the indiscriminate slaughter of civilians with ordinary weapons? Why should the US be willing to intervene if chemical weapons kill 1,000 civilians, but not if ordinary weapons kill tens of thousands? I’m with Stephen Walt concerning the US’s apparent belief that the Syrian government did not cross the (blurry) red line until it used chemical weapons:

But why? Nobody should be pleased that Assad’s forces (may) have used chemical weapons, but it is not obvious to me why the choice of weapon being used is a decisive piece of information that tips the balance in favor of the pro-intervention hawks. It’s been obvious for decades that the entire Assad regime was nasty, and it’s been equally clear that the government forces were using lots of destructive military force to suppress the opposition. How else did 70-80,000 Syrians die over the past two years? It’s not as though Assad has been acting with great restraint and sensitivity to civilian casualties and then suddenly decided to unleash sarin gas. Does it really matter whether Assad is killing his opponents using 500-pound bombs, mortar shells, cluster munitions, machine guns, icepicks, or chemical weapons? Dead is dead no matter how it is done.

If there was significant reason to believe that the attack near Damascus was merely the tip of the iceberg — that the Syrian government intended to launch a full-scale chemical attack in the near future, one that could kill hundreds of thousands of civilians — I could understand the obsession with chemical weapons. But I have not seen any evidence of that. And in any case, I’m not sure why we are supposed to believe that the Syrian government would not respond to US military intervention by using chemical weapons even more indiscriminately. (As an aside, why is it that dictators are expected to fight to the death in order to avoid being prosecuted by the ICC, but are expected to roll over meekly in the face of US military might?)

It’s also worth noting that US outrage at Syria’s use of chemical weapons is more than a little hypocritical. Just yesterday, FP.com published a blockbuster article detailing — on the basis of declassified CIA documents — the US’s knowing support for Saddam Hussein’s use of chemical weapons against Iranian soldiers during the Iran-Iraq War. Apparently it is only unacceptable to use chemical weapons when you’re an enemy of the US; if you’re an ally (as Saddam was at that point), they’re fine.

The bottom line, it seems to me, is this: either the US believes in unilateral humanitarian intervention or it doesn’t. If it does, it should have been willing to use militarily force in Syria long ago, when tens of thousands of civilians were being indiscriminately slaughtered by the Syrian government. If it doesn’t, the fact that civilians are now being indiscriminately slaughtered by the Syrian government through the use of chemical weapons should be irrelevant.

Murder by chemical weapons is terrible. But so is any kind of murder. As Walt says, “[d]ead is dead no matter how it’s done.”

Emerging Voices: Counterterrorism and Humanitarianism–Assessing the Current (Im)Balance

by Elizabeth Holland

[Elizabeth Holland is an attorney with the law firm Foley Hoag LLP, where she focuses on international law and corporate social responsibility. The views expressed here are her own.]

There is clear need for effective counterterrorism measures.  Equally compelling is the humanitarian imperative to address civilian need in situations of armed conflict.  It has been questioned, however, whether the balance struck currently by counterterrorism measures impedes unacceptably the ability of humanitarian organizations to operate — particularly in areas controlled by listed armed groups (see, e.g., the Counterterrorism and Humanitarian Engagement Project at Harvard Law School and the Safeguarding Humanitarianism in Armed Conflict report published by the Charity & Security Network.  In the interests of full disclosure: I’ve been involved with both.)

Such a question belies simple answer. Policy and operational considerations are implicated in any analysis of the impact of counterterrorism measures on humanitarian action, and measuring the impact of such legislation is difficult.  A recent report commissioned by the UN Office for the Coordination of Humanitarian Affairs and the Norwegian Refugee Council presented evidence of such negative impact, including “halts and decreases in funding to blocking of projects” as well as “suspension of programmes;” also listed are “planning and programming design not according to needs, as well as the slowing of project implementation.”

What follows will focus on U.S. counterterrorism legislation and measures, their potential impact on humanitarian operations, and possible responses.  This is simply a snapshot – a range of similar measures exist in other major donor states (e.g., Canada, the U.K., Australia), the EU, and the UN.   These measures, as well as requirements found with increasing frequency in agreements with key donor states, as well as more informal listing mechanisms (such as that seen in Afghanistan in the context of DoD contracts) raise issues of criminal, civil and contractual liability for humanitarian organizations.  Often their stringency, including the lack of a humanitarian exemption, make operating in an area controlled by an armed group very difficult for humanitarian organizations.  Not only may the legal risks be significant, but some of the measures imposed on the humanitarian organizations may require cooperation of a sort that jeopardizes their neutrality and independence.

Under the U.S. material support statute (18 U.S.C. § 2339(A),(B)) the provision of material support to a foreign terrorist organization (“FTO”) is categorically prohibited.  There are a number of armed groups — also parties to an armed conflict — who are also listed as FTOs (see, e.g., Al-Shabaab, Hamas, Al Qaida).  The definition of material support is broad, and includes both tangible and intangible property, currency, facilities, transportation, lodging, services, training, and expert advice or assistance.  Though at one point the statute included an exemption for humanitarian assistance, the current version exempts only medicine and religious materials.  This exemption is interpreted narrowly, as the Second Circuit in 2011 explained that “medicine” is limited to exactly that – it does not include medical supplies or medical assistance under the statute.  Such a strict prohibition may not seem questionable. Considered, however, in the context of humanitarian operations, such a categorical approach leaves no room for maneuver, no space for even de minimus or incidental engagement of the type often operationally necessary to conduct humanitarian activities.

In addition to the broad definition of material support, the statute does not require…

Fourth Circuit Endorses WikiLeaks

by Kevin Jon Heller

Well, not really. But that’s the unintended consequence of yesterday’s awful decision in US v. Sterling, in which the Fourth Circuit held that James Risen could not rely on journalist’s privilege to avoid testifying against James Sterling, whom the government believes leaked classified information to Risen. According the court, the government is entitled to Risen’s testimony, because he is the only “eyewitness” (a journalist receiving classified information) to the “crime” (leaking classified information to a journalist):

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.

If a journalist can be forced to testify against a whistleblower in a leak case because he “witnessed” the “crime,” there is only one solution for journalists who want to work with whistleblowers who expose government misconduct: obtain the information completely anonymously. If they do not know who provided the information, forcing them to testify will accomplish precisely nothing.

In other words, WikiLeaks. That is now the only viable model of investigative journalism, given Sterling‘s overt attack on freedom of the press.

Well done, Fourth Circuit. You’ve offered the most compelling defense of WikiLeaks to date.

Supreme Court to Review Bauman v. DaimlerChrysler

by Kenneth Anderson

About the same time (April 2013) that the US Supreme Court released its opinion in Kiobel v. Royal Dutch Petroleum, the Court also granted review of a Ninth Circuit case, Bauman v. DaimlerChrysler. Just ahead of the July 4th weekend, the Obama administration submitted what John Bellinger, in a lucid post over at Lawfare, describes as a “remarkably strong” amicus brief urging the Court to

reverse the Ninth Circuit’s decision in Bauman v. DaimlerChrysler.  The Justice Department argued that the Ninth Circuit’s 2011 decision finding personal jurisdiction in California over Daimler AG, a German company, for the actions of a subsidiary in Argentina, was “seriously flawed” and contrary to the Supreme Court’s subsequent 2011 decision in Goodyear.  The brief faults the Ninth Circuit for trying to hold a foreign corporation with few contacts to California to “answer in that State for any claim against it, arising anytime, anywhere in the world.”

The background to Bauman v. DaimlerChrysler, Bellinger explains, is that in May 2011 a Ninth Circuit panel

held that that Daimler AG, a German parent company with no operations or employees in the United States, could be sued under the Alien Tort Statute and the Torture Victim Protection Act  (as well as common law and state law) by a group of Argentine nationals for human rights abuses allegedly committed by an Argentine subsidiary in collaborating with the Argentine government during the “Dirty War” in the 1970s, solely on the basis that a different U.S. subsidiary now distributes Mercedes Benz vehicles in the United States.  Applying an agency theory, the panel concluded that Daimler AG had sufficient contacts with the state of California by virtue of the actions of its subsidiary Mercedes Benz USA to give California personal jurisdiction over the German parent , even though Mercedes Benz USA had no involvement with the alleged facts in Argentina.

I agree with Bellinger that the likelihood, following Kiobel, is that the Court is moving to restrain jurisdictional assertions by Federal courts, and is pushing back toward stricter grounding in the traditional bases of jurisdiction by national courts.  My own larger, political view is that this is connected to a perception that although broad assertions of US jurisdiction through such vehicles as the Alien Tort Statute over foreign parties for acts on foreign territory can certainly be framed as enforcing universal international law through national courts, it is better understood as assertions of something quite different – what I’ve sometimes called the “law of the hegemon.”  That is an increasingly contested position as a matter of international politics spilling over into international law, and between the rise of new great powers and the Obama administration’s political embrace of decline, it seems to me unsurprising that the Obama administration would embrace a more traditional, much more restrictive understanding of jurisdiction.

But it also seems the Court is also generally on board with this pull-back.  As Bellinger says, many observers (me included) believe that

the Court would not have accepted the case unless it plans to reverse the Ninth Circuit.  Conservative justices are loathe to miss an opportunity to try to curb the Ninth Circuit’s consistent efforts to be a world court, and the more liberal justices may have wanted to demonstrate (as Justice Breyer argued in his concurrence in Kiobel) that the extraterritorial reach of the Alien Tort Statute can be limited by other jurisdictional restrictions.

I agree.  Despite the obvious clash of approaches between the Roberts majority and the Breyer minority in Kiobel, they do have an important common ground – an intention to limit extraterritorial jurisdiction through a stricter application of the traditional bases of jurisdiction. (more…)

Chevron Update/Profile in Washington Post

by Kenneth Anderson

We haven’t blogged recently here about the Chevron Ecuador case, but over the weekend the Washington Post carried a long analysis and profile by Business section reporter Steven Mufson on the state of play – focused particularly on a Washington insider part of the saga, the involvement of DC lobbying-law firm powerhouse, Patton Boggs.  Patton Boggs has been an adviser to the Ecuadorian plaintiffs since 2010; it is now being sued by Chevron, the defendant, on fraud charges. Mufson’s story is about the colorful characters, including the lawyers involved – but it is also about the business of financing lawsuits:

When Patton Boggs signed onto the Ecuador case in early 2010 at the suggestion of a hedge fund looking into financing the litigation, it wrote a memorandum titled “Invictus” — borrowing the title of a 19th-century poem that culminates with the famous lines “I am the master of my fate/I am the captain of my soul.” In it, Patton Boggs outlined a strategy to pursue international Chevron assets to enforce the $18.2 billion judgment, “with the ultimate goal of effecting a swift and favorable settlement.” But this case wasn’t like other sticky problems that Patton Boggs had solved by striking deals. “Tommy thought he and Chevron’s counsel could sit down and work this out,” a prominent Washington lawyer, who spoke on the condition of anonymity to protect his business relationships, said about firm titan Thomas Boggs.

It has not worked out that way – Chevron, as OJ readers know, has dug in and will not cut some kind of deal.  (Regular readers also know, full disclosure, that I think Chevron is right on the merits, but that’s not my interest here.)  Mufson is an outstanding business reporter, and this account is utterly fascinating – Chevron, Ecuador, rainforests, oil, all that aside – for its account of the business of financing lawsuits in US courts in return for a contingency fee – a share of the outcome of any gains.  That’s the reason for the reference to the hedge fund at the beginning; some hedge funds are deeply involved in this (rapidly evolving) business model:

How Patton Boggs ended up here is a tale of how the old boy network works in the elite legal world. And it involves an unusual niche — hedge funds that invest in complex litigation in the hope of sharing a big payday. In November 2009, a New York firm seeking financing for the Ecuadoran plaintiffs contacted Burford Capital, run by Christopher Bogart, a former general counsel of Time Warner and litigator at the white shoe firm of Cravath, Swaine & Moore. Burford is the world’s biggest institutional source of litigation financing, with a $300 million fund. Burford’s partners met Donziger, the plaintiffs’ dogged U.S. lawyer who needed fresh backing. Before investing, however, Burford wanted a “highly regarded U.S. litigation counsel” involved, according to a Bogart court filing. James E. Tyrrell Jr., a partner at the Newark office of Patton Boggs and a member of the firm’s executive committee, was the obvious choice ….

By early 2010, Patton Boggs was in. And that fall, Burford invested $4 million in the case, with plans for two further tranches of $5.5 million each. In return, it would get 5.545 percent of the settlement amount. Even if the settlement fell short of the billions expected, Burford would receive a minimum of $55.5 million, a handsome return on its investment. Bogart in his affidavit cited “our substantial confidence in Jim Tyrrell” and “our special relationship with and respect for Jim and Patton Boggs.”

A little more than a year later, the relationship had gone sour – in essence, Burford believed that it had been materially misled in representations made to it in exchange for funding.  However, the letter making that accusation was addressed to the plaintiffs’ lawyer, Steven Donziger and the Ecuadorian plaintiffs, not Patton Boggs, which had originally drafted the perhaps imprudently titled “Invictus” internal memo that analyzed the business opportunity presented by the litigation.

On Sept. 29, 2011, Burford sent Donziger and the Ecuadoran lawyers a letter complaining about omissions in the Invictus memo, though it did not address the letter to Patton Boggs. “We believe that you and particularly your U.S. representatives engaged in a multi-month scheme to deceive and defraud in order to secure desperately needed funding,” the letter said, “all the while concealing material information and misrepresenting critical facts in the fear that we would have walked away had we known the true state of affairs.”

The heart of Burford’s complaint was the Cabrera expert witness report on damages allegedly caused by Chevron (i.e., then-Texaco’s) operations in Ecuador; again, regular readers will recall (and those new to this can read an excellent summary in Mufson’s article) the controversies that have swirled around Cabrera’s report, the claims of improper influence and communications, etc.:

The gravity of the doubts surrounding the Cabrera report had not found its way into the 2010 Patton Boggs Invictus memo. There, Patton Boggs had dismissed Chevron’s “bluster” and “singular fixation” on the report. It said that Chevron had declined opportunities to provide Cabrera with information of its own. “The damage is plain to see,” the memo said, adding that Chevron “cannot undermine the soundness of plaintiffs’ science.” But as new details [casting doubt on the Cabrera memo] emerged, Burford’s partners grew upset and believed Tyrrell had deceived them. In his recent affidavit, Bogart attached notes of a January 2011 telephone conversation with Tyrrell, who said that Donziger “was a fool” and that Patton Boggs was “evaluating what to do.” But Tyrrell added, according to the notes, that it was “difficult to believe that no award of significant damages” would come about. Meanwhile Burford has sold its stake to still another private investor group, recouping its $4 million investment.

I’m not doing justice to Mufson’s account of the new twists and turns in the case.  But what I find most fascinating here is the intertwining of the rapidly growing business of speculative litigation financing, through essentially sale and resale of bits of the contingency fee, with a case with extraordinary political facts combined with an extraordinary amount of money at issue.

Question to readers: Are there other places in the world that allow this kind of third party financing of lawsuits?  I think of it as a peculiarly American practice, though I’m not expert in this area and might be quite wrong.  Added:  See my post (several) above re Julian op ed on this in the WSJ; also, a couple of informative comments to this post on the apparently burgeoning business of litigation finance in several places in the world.  Some good written materials, too – see comments and thanks to commenters.