Opinion analysis: Anti-torture law given narrow scope (UPDATED)
on Apr 18, 2012 at 12:50 pm
UPDATED 5:05 p.m. The following post has been updated to discuss the impact of the ruling on torture claims against corporations.
In a ruling that almost certainly means there will be few cases in U.S. courts seeking damages for acts of torture overseas, the Supreme Court decided unanimously Wednesday that a 1992 law permitting such lawsuits targets only human beings, not organizations that may engage in human rights violations. The decision will scuttle a lawsuit by the family of a U.S. citizen who died in Palestinian territory after allegedly being tortured by intelligence officers of the Palestine Liberation Organization. The lawsuit, as it reached the Supreme Court, was aimed only at the PLO itself.
The Torture Victim Protection Act is aimed at “individuals,” which Congress did not define. The Court said it would not give that word an unnatural meaning by saying it meant organizations, too. Although the decision only excluded lawsuits against organizations, its reasoning also bars such challenges against corporations. Many such cases have been filed against corporations. (UPDATE: The Court has now scheduled for consideration at Friday’s Conference a case involving a torture act claim against a corporation. The case is Bowoto, et al., v. Chevron Corp., et al. [docket 10-1536], involving a lawsuit by 19 Nigerians claiming that they or relatives were tortured or killed by Nigerian security forces acting to support the interests of Chevron and two subsidiaries. The Ninth Circuit had ruled against such claims.)
Even before the new decision, the torture act already had significant limitations: it could only be used by U.S. citizens, the claimed torture had to occur under the sponsorship of a foreign government, those targeted by such a lawsuit had to be in the U.S. within the court’s reach, and those who sued probably would often have difficulty identifying the actual individuals who carried out the torture even though the organization to which those individuals belonged was known.
Congress, in fact, gave indications at the time the law was passed that not many cases would qualify under the Act. The Court’s opinion noted that, so far, only two people who have sued under the Act have been able to recover damages successfully from an individual perpetrator, and that one of those came only after the targeted individual had won the state lottery and became instantly visible. By reading the law as aimed only at human beings, the Court narrowed its scope further.
The ruling came in the case of Mohamad, et al., v. Palestinian Authority, et al. (docket 11-88). The lawsuit was filed by family members of a U.S. citizen, Azzam Rahim, who was captured by PLO agents in the village of Ein Yabroud, near Ramallah in Palestinian territory, and was taken to a prison in Jericho. There, he was allegedly subjected to torture, and died while being held by the PLO. The survivors sued the PLO and individual officers, but the individuals were later dismissed from the case. Three of the officers were later convicted for their roles.
The family’s lawsuit was dismissed by a federal judge in Washington, D.C., on the premise that the 1992 torture victims’ law only applied to natural persons, not to an organization. The D.C. Circuit Court agreed, and that was the ruling under review by the Supreme Court. Taking each of the family’s legal arguments one by one, the Justices concluded unanimously that Congress had not meant to include organizations within the scope of the word “individuals” in the law.
In an opinion by Justice Sonia Sotomayor, the Court concluded that nothing in the text of the law or in the history of its passage in Congress supported the family’s interpretation. Justice Antonin Scalia joined all of the opinion except its discussion of legislative history — a kind of background information on which he customarily refuses to rely. Justice Stephen G. Breyer wrote separately, saying that he had joined the ruling but only on the understanding that the word “individual” in a federal law could sometimes refer to corporations or other entities. He agreed that it did not do so in this instance.
The Court had heard the Mohamad case on February 28, in tandem with its hearing in a separate case — Kiobel, et al., v. Royal Dutch Petroleum, et al. (10-1491). That case tests whether corporations may be sued in U.S. courts under a 1789 law, the Alien Tort Statute, for allegedly engaging in human rights violations in foreign nations. However, after the Kiobel argument, the Court on March 5 ordered that case reargued at its next Term, and expanded the scope of its review to include the question of whether the ATS even applied to violations of international law when those occurred on foreign soil.
Justice Sotomayor’s opinion in the Mohamad case mentioned the Kiobel case, but indicated nothing about the Court’s thinking about that case. The law allowing torture victims to sue, the one on which the Rahim family had relied, was passed by Congress as a supplement to the Alien Tort Statute, not as a replacement. It applies both to torture and to “extrajudicial killing.”