U.S. Courts' Role in Foreign Feuds Comes Under Fire
By ADAM LIPTAK - NEW YORK TIMES
As courts in the United States hear more lawsuits over disputes beyond the country's borders, government officials and legal scholars are saying that the trend is creating a situation rife with diplomatic pitfalls and the Bush administration is complaining that it is hampering the fight against terrorism.
The examples in recent weeks have been many, and the sums involved large.
A federal judge in Washington, D.C., ordered Iraq to pay nearly $1 billion to American soldiers captured and tortured in the first gulf war, and another ordered Iran to pay $313 million to the children of an American woman killed in a 1997 suicide bombing at a Jerusalem market.
A Scottish woman offended by a Holocaust memorial that would disturb human remains at a Nazi death camp in Poland sued in New York to stop construction.
The president of Venezuela, Hugo Chávez, has been sued in Miami by relatives of people killed in an antigovernment protest on the streets of Caracas, the capital.
The Bush administration has been particularly vocal in opposing such litigation.
"The current litigation-based system of compensation is inequitable, unpredictable, occasionally costly to the U.S. taxpayer and damaging to foreign policy and national security goals of this country," William H. Taft IV, the State Department's legal adviser, said in Senate testimony last month.
Legal scholars emphasize the diplomatic risks.
"U.S. courts are a magnet for international litigation," Curtis A. Bradley, a law professor at the University of Virginia, said in an interview.
"But courts are not institutionally equipped to conduct foreign relations. The executive branch might be greatly concerned about human rights abuses but might have to weigh that against concerns with terrorism, or it might want to use a carrot approach rather than a stick approach."
John Choon Yoo, law professor at the University of California and a visiting fellow at the American Enterprise Institute, agrees that the courts do not always see the big picture.
"A court sees only the discrete case before it," he said. "It can't and it is not allowed to see the totality of the facts. Courts aren't good at measuring the costs and benefits of anything. They're good at right and wrong, not costs and benefits."
But as America's global power has grown, said Peter Spiro, a law professor at Hofstra University, courts have shed a longstanding reluctance to hear international human rights cases.
"There is a sense that there is less of a downside risk of entertaining cases with foreign policy implications," Professor Spiro said. "In the cold-war world, there was a fear that courts could trigger World War III."
Many legal scholars say the administration's opposition to such litigation is an overreaction. American courts hear countless international cases involving commercial disputes, noted Harold Hongju Koh, a law professor at Yale who was a State Department official in the Clinton administration.
"If we're going to try these people for violating a nickel-and-dime contract," he said, "why can't you sue them for genocide?"
Money has changed hands after verdicts in these cases only a few times, and even then generally because Congress has intervened. In 2000, it directed the Treasury Department to use frozen Cuban assets to pay almost $100 million of a $193 million award to relatives of passengers in two airplanes shot down by the Cuban air force. That same year, at the direction of Congress, the Treasury Department used federal funds to pay more than $350 million to people with claims against Iran, which the plaintiffs accused of supporting terrorism.
The administration's stance is consistent with its opposition to foreign and international courts that might hear cases alleging human rights violations by Americans.
Douglass Cassel, a law professor at Northwestern University, said there was a tension between America's enthusiasm for litigation and its resistance to foreign and international tribunals.
"A lot of countries have been saying, `Where does the United States get off being the world leader in adjudicating these suits against other nations but not against the United States itself?' "
Suits in American courts do seem to have encouraged a sort of tit-for-tat reciprocity. Cuba and Iran have enacted laws permitting suits against the United States for terrorism, and an Iranian court recently entered a $500 million default judgment against the United States.
In American courts, such suits are generally brought under any one of three laws. The most controversial is the Alien Tort Claims Act of 1789. It allows federal courts to hear "any civil action by an alien for a tort only, committed in violation of the law of nations."
The administration argues that the courts' expansive interpretation of the law is an affront to the separation of powers.
The law's history is poorly understood, and it was little used until 1980, when a federal appeals court in New York allowed two Paraguayan citizens to sue a Paraguayan general for torture. Scores of similar suits followed, mostly against individual officials. They often resulted in enormous though entirely symbolic awards and generated little controversy until human rights lawyers started to sue multinational corporations that they contended had aided in human rights violations.
In recent years, partly to give Americans victims of human rights abuses abroad the same right that foreigners have to seek redress in federal courts, Congress has passed more focused laws. In 1992, it enacted the Torture Victims Protection Act, which allows American and foreign victims of torture to sue officials who inflicted the torture on behalf of a foreign state.
In signing the bill, the first President George Bush expressed concern that the law might cause American courts to "become embroiled in difficult and sensitive disputes with other countries, and possibly ill-founded and politically motivated suits which have nothing to do with the United States and offer little prospect for successful recovery."
In 1996, Congress passed a different sort of law, the one under which the former prisoners held by Iraq sued. It allowed American victims of terrorism to sue a small group of nations identified by the State Department. The most recent list names Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, though Iraq's status under the law is no longer clear.
The administration has said that its efforts to fight terrorism may be harmed by international human rights litigation in American courts. Last year, Mr. Taft, the State Department lawyer, made that point to a judge hearing a case against Exxon Mobil , in which the oil company is accused of complicity in abuses by Indonesian security forces. The company denies the accusations.
"This lawsuit could potentially disrupt the ongoing and extensive United States efforts to secure Indonesia's cooperation in the fight against international terrorist activity," Mr. Taft wrote.
The Alien Tort Claims Act is also facing an important test in a case before the federal appeals court in San Francisco. The plaintiffs in the case say that Unocal, an oil company, collaborated with the Myanmar military, a charge the company denies.
American business interests and the Bush administration have filed briefs urging the court to reinterpret the law to forbid most human rights suits.
Professor Koh, of Yale, said corporate representatives were overreacting.
"The corporate hysteria about the Alien Tort Claims Act is really something to see," he said. "We're talking about a litigation trend that has led to zero cents in damages, and based on this they want the statute repealed?
"Like it or not," Professor Koh added, "foreign disputes are going to come into our courts. And if they raise issues of concern to us, our courts ought to be able to adjudicate those concerns."
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