3 lawyers test human rights cases from abroad in Supreme Court
The Supreme Court will hear a case Monday which could determine whether cases involving foreign governments committing atrocities in their own countries should be heard in the US court system.
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Clement and Bellinger had worked together on an Alien Tort Statute case when Clement was solicitor general and Bellinger was at the State Department. When they spoke, the two lawyers decided to team up again. "Paul agreed," said Bellinger, "we could track a number of the issues we'd argued in government."Skip to next paragraph
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They divvied up the work. To build their case, Bellinger sought to document instances where foreign governments had complained about the statute. Clement's job was to look at the big picture.
In an interview, Clement said he saw two issues lower courts were grappling with. One was Bellinger's concern about whether the statute applied to cases where abuses were committed in foreign countries. The other was whether helping a foreign government commit an abuse, rather than committing the abuse directly, was covered by the statute. Only the 2nd Circuit's Kiobel decision had brought up the new question of whether a corporation, rather than an individual, could be held liable under the statute. It was almost as if the Supreme Court was looking at the wrong question, Clement said.
Like Bellinger, Clement agreed to speak only in a private capacity and not as a representative of his clients in the ongoing litigation.
The two lawyers said they decided they needed to marshal a much broader argument than the one the Supreme Court had asked for in Kiobel. Bellinger spent December 2011 reaching out to clients of Arnold and Porter who were past, current or potential future targets of lawsuits under the Alien Tort Statute.
In February this year they filed their brief on behalf of BP Plc, Caterpillar Inc, ConocoPhillips, General Electric Co,Honeywell International Inc and IBM. They argued that the Alien Tort Statute does not cover events that took place in foreign countries, nor does it apply to those who help others commit abuses, only those who commit abuses themselves. None of the six companies would comment for this story.
CHANGING THE QUESTION
On a crisp morning in late February, Paul Hoffman, a veteran human rights advocate, stood before the Supreme Court to argue the case for Kiobel. Some 16 years earlier, Hoffman had brought a landmark lawsuit under the Alien Tort Statute against oil company UNOCAL over abuses in Myanmar, which settled in 2005 for an undisclosed sum. Since then, bringing lawsuits against corporations had come to define his career.