Wrong way on human rights

Human rights groups are appropriately appalled by the breadth of a U.S. Supreme Court decision this week that would make it exceedingly difficult for some victims of human rights abuses committed in other countries to win redress in U.S. courts.

Led by Chief Justice John G. Roberts Jr., a self-proclaimed foe of judicial activism, the court reined in the use of a 1789 law known as the Alien Tort Statute, which gives federal courts jurisdiction over "any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States." Although the statute was inspired by concerns about attacks on ambassadors and piracy on the high seas in the 18th century, its expansive language has been used in recent years to justify lawsuits in U.S. courts by victims of torture abroad.

Among those who sought to benefit from the law were a group of Nigerian plaintiffs who argued that, in the 1990s, Royal Dutch Petroleum Co. "aided and abetted" a brutal government crackdown on opponents of oil drilling that included beatings, rapes and murders. According to the plaintiffs, who now live in the U.S., company officials provided food, money and transportation to Nigerian armed forces and let company property be used as a staging ground for attacks.

The court ruled 9 to 0 that the suit couldn't go forward, with even the more liberal justices concluding that there wasn't a sufficient connection between the United States and either the company or the alleged abuses. That alone would have been a disappointment for human rights advocates, who want to continue to use the law to bring to justice torturers and abusers abroad. But Roberts' majority opinion went beyond that, establishing a strong "presumption against extraterritorial application" of the statute, even in cases in which the defendants have a significant connection to this country.

Quoting an earlier decision, Roberts argued that refusing to extend the law to cover conduct overseas "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord." But, as Justice Stephen G. Breyer pointed out in a concurring opinion, there are ways to minimize diplomatic friction without barring such lawsuits from U.S. courts altogether.

Joined by three other justices, Breyer offered a more flexible approach for application of the Alien Tort Statute. He suggested it should be used in cases where the violation of rights took place on U.S. soil, the defendant was a U.S. national or when "the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor … for a torturer or other common enemy of mankind."

That approach would be more faithful to American values than the cramped one the majority adopted.

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