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June
6, 2003
David
Krieger
The Big Lie
Ramzy
Baroud
Sharon and the Myth of the Peacemakers
Anthony
Gancarski
Sharansky: "Crucifixion is a Privilege"
Sam
Hamod
His Own Little Country
Sean Carter
Why Indict Martha Stewart and Not Ken Lay?
David
Lindorff
Cracks in the Consensus
Stew Albert
Ari's Great Set
Elaine
Cassel
Ashcroft the Insatiable
June
5, 2003
Jeffrey
St. Clair
Pools of Fire: The Looming Nuclear
Nightmare in the Woods of North Carolina
Imraan
Siddiqi
Ann Coulter's Foul Mouth
Michael
Leon
Clinton, Reno & Waco: Remember What They've Done
Robert
Jensen
Texas Pledge Law Undermines Democracy
Ann Harrison
Rosenthal is Free, But the Fight isn't Over
Paul
Dean
How You Can Be Deliriously Happy in the Age of Bush
Gary Leupp
When Spooks Speak Out
Website
of the Day
Evidence in Black and White?
June
4, 2003
Alexander
Cockburn
Federal Judge Blinks; Rosenthal
Walks
Lisa
Walsh Thomas
The Isaiah Crowd: The Threat of Neo-Christianity
Jason
Leopold
Manufacturing the Iraq War
John Chuckman
Blackmail as Policy
Mazin
Qumsiyeh
Summit: Peace or Pretense?
Issam Nashashibi
Sharon's Sword of Damocles
Steve
Perry
Wolfowitz of Arabia: the VF interview transcript
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3, 2003
Chris
Floyd
Copycat Killers: Bush, Jakarta and
the Slaughter in Aceh
Jason
Leopold
Wolfowitz Tells All
Elaine
Cassel
We Interrupt Your Normal Show to Bring You an Important Message
from Michael Powell: "Go to Hell, Americans!"
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Crumpacker
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William
S. Lind
Fourth Generation Warfare in Iraq
Sam
Hamod
The Final Brick in the Wall
Uri
Avnery
The Altalena Affair
Hammond
Guthrie
Stepping into Some Deep DARPA
Steve
Perry
The WashTimes'
al-Qaeda nuke "exclusive"
June
2, 2003
Arundhati
Roy
Day of the Jackals
Norman
Madarasz
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Gancarski
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Standard
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Leopold
Rocky's Advice to the Dems
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& Albert
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Perry
The Politics of Terror Alerts
May
31, 2003
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Cockburn
A Whiner Called Horowitz
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Dave
Lindorff
Clinton, Bush, Lies and Impeachment
Tom Stephens
Does It Matter that the Bush Administration Lied?
Sasan
Fayazmanesh
Who Is Next?
Joanne
Mariner
Trivializing Terrorism
Wayne
Madsen
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Larry Magnuson
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Elaine
Cassel
Wake Up, America!
Gila Svirsky
Waiting for the Lament to End
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Kitchen Dreams
Chris Clarke
Barbra Streisand: Environmental Hypocrite
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June
7, 2003
Ashcroft Sides with Torturers
Unocal and the
Crimes of Burma
By JOANNE MARINER
Given the chance to protect corporate interests,
the Bush administration is predictably happy to take it. Ditto
for the prospect of undermining international justice.
But it's not every day that the opportunity
arises to accomplish both objectives at once. It takes a case
like John Doe I v. Unocal Corp., a civil damages action currently
pending in U.S. federal court.
In a brief recently filed in the Unocal
case, the administration--in the person of Attorney General John
Ashcroft--sets out to defend an oil company, reaffirm the president's
untrammeled power over foreign policy, and eviscerate a law that
has provided a modicum of justice to victims of rights abuses
from around the world.
All that, and more. In an added plus,
the brief also gives the administration a vehicle for highlighting
the wit and wisdom of Robert Bork. Bork, the right wing's original
judicial martyr, is very much in the thoughts of an administration
that is currently fighting bruising confirmation battles in Congress.
Forced Labor, Murder,
Rape and Torture
The plaintiffs in the Unocal case are
Burmese villagers who claim that they were subjected to forced
labor, murder, rape, and torture during the construction of a
gas pipeline through their country. Soldiers allegedly committed
these abuses while providing security and other services for
the pipeline project.
Jane Doe I, one of the plaintiffs in
the case, testified that when her husband tried to escape the
forced labor program, he was shot at by soldiers, and that, in
retaliation for his attempted escape, she and her baby were thrown
into a fire. Her child died and she was badly injured.
Other villagers described the summary
execution of people who refused to work, or who became too weak
to work effectively.
There is little doubt that such crimes
occurred. They have been exhaustively documented by Human Rights
Watch, Amnesty International, and a host of other groups. In
1995, when pipeline construction was beginning, the U.N. General
Assembly passed a resolution urging Burma (also known as Myanmar)
to put a stop to its practices of torture, forced labor and summary
executions. Even the Justice Department, whose "friend of
the court" brief was filed this past May 8, was willing
to acknowledge the "blatant human rights abuses" committed
by Burma's military government.
The only serious factual issue in the
case is the extent of Unocal's responsibility for the crimes.
The plaintiffs claim that Unocal aided and abetted the Burmese
military in its campaign of abuse, an assertion that Unocal vigorously
denies.
"Practical Assistance"
The Unocal case is now pending before
the U.S. Court of Appeals for the Ninth Circuit. The lower court
that first heard the case dismissed it, finding insufficient
proof of Unocal's involvement in the abuses.
The appeal was heard by a panel of Ninth
Circuit judges that ruled unanimously to reverse the dismissal.
The court found that the evidence presented by the villagers
supported the conclusion "that Unocal gave practical assistance
to the Myanmar Military in subjecting Plaintiffs to forced labor."
As the court described it, this practical
assistance "took the form of hiring the Myanmar Military
to provide security and build infrastructure along the pipeline
route in exchange for money or food." The assistance "also
took the form of using photos, surveys, and maps in daily meetings
to show the Myanmar Military where to provide security and build
infrastructure."
Moreover, the court found, the evidence
supported the conclusion "that Unocal gave 'encouragement'
to the Myanmar Military in subjecting Plaintiffs to forced labor."
Besides ruling for the plaintiffs on
the forced labor issue, the court also reversed the district
court's dismissal of the murder and rape claims, finding sufficient
evidence of Unocal's complicity in those abuses. But the panel
decision, issued in September 2002, was vacated in February,
when the Ninth Circuit decided to rehear the case en banc (in
other words, sitting as a panel of eleven, rather than three,
judges).
The Alien Tort Claims
Act
Except for a token acknowledgment of
the Burmese government's human rights abuses, the Justice Department's
brief ignores the facts of the case. Rather than attempting to
defend Burma and Unocal on the factual record, it instead aims
to destroy the legal basis of the villagers' suit.
In its brief, the Justice Department
embarks on a wholesale attack on the Alien Tort Claims Act (ATCA),
the law underlying the villagers' claims. For over twenty years,
since the landmark 1980 case of Filartiga v. Pena-Irala, courts
have ruled that the ATCA permits victims of serious violations
of international law abroad to seek civil damages in U.S. courts
against perpetrators found in the United States.
The Justice Department's proposed interpretation
of the law would radically narrow its scope. The law would be
changed so dramatically, in fact, that as the Department itself
acknowledges, it would be rendered "superfluous."
If the Ninth Circuit adopts this approach,
victims of human rights abuses abroad will no longer be able
to rely on the U.S. courts for any hope of justice. And no more
will multinational corporations, enticed by other countries'
lower wages, laxer worker protections--and, possibly, ineffective
and corrupt judicial systems--have to worry that abuses they
commit in foreign countries may come back to U.S. courts to haunt
them.
The Justice Department's current view
of the ATCA represents a radical break from past practice. No
previous administration has ever challenged the legitimacy of
ATCA suits against gross human rights abusers.
There is, however, some precedent for
the Department's restrictive view of the law. And its source--then-judge
Robert Bork--is telling. In 1984, back when he was a member of
the U.S. Court of Appeals for the D.C. Circuit, Bork wrote a
concurring opinion in the case of Tel-Oren v. Libyan Arab Republic
that vigorously challenged the use of the ATCA in human rights
suits.
The Justice Department's brief is littered
with approving references and quotes from Bork's Tel-Oren concurrence.
The Department clearly hopes, with this case, to establish Bork's
views as the authoritative position of the Ninth Circuit.
To do so would, of course, be an important
step toward convincing the Supreme Court, which has yet to rule
on the ATCA's use in human rights cases, to follow suit.
From the ATCA to the
ICC
The Justice Department's offensive against
the ATCA may be a testament to the law's growing relevance. It
was only in 1993 that plaintiffs began suing multinational companies
under the ATCA for alleged complicity in human rights violations
abroad.
Since that time, there have been at least
twenty-five such cases. Although the courts have dismissed most
of them, and have not rendered any judgments against companies,
the ATCA has clear potential as a tool for policing corporate
perpetrators of human rights abuse. Indeed, the ongoing cases
have already set alarm bells ringing in the corporate world.
Yet there is another obvious basis for
the Justice Department's effort to sabotage the law. Equal to
this administration's solicitude for corporate welfare is its
loathing of international justice.
It may seem like quite a leap from the
ATCA to the International Criminal Court (ICC). Yet the underlying
concepts--that one country's gross human rights abuses might
be of legitimate concern to an outside forum, and that international
human rights standards might be legally enforceable, rather than
merely hortatory--are the same.
With the ATCA and the ICC, the Bush administration
is attempting to protect human rights abusers at the expense
of their victims. Only if justice and accountability are ignored
does this effort make sense.
Joanne Mariner
is a human rights attorney and regular CounterPunch contributer.
An earlier version of this piece appeared in FindLaw's
Writ. She can be reached at: mariner@counterpunch.org.
Today's
Features
David
Krieger
The Big Lie
Ramzy
Baroud
Sharon and the Myth of the Peacemakers
Anthony
Gancarski
Sharansky: "Crucifixion is a Privilege"
Sam
Hamod
His Own Little Country
Sean Carter
Why Indict Martha Stewart and Not Ken Lay?
David
Lindorff
Cracks in the Consensus
Stew Albert
Ari's Great Set
Elaine
Cassel
Ashcroft the Insatiable
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