Dec 10, 2020

Enemy of Mankind

Should the U.S. Supreme Court be the court of the world? In the 18th century, two feuding Frenchmen inspired a one-sentence law that helped launch American human rights litigation into the 20th century. The Alien Tort Statute allowed a Paraguayan woman to find justice for a terrible crime committed in her homeland. But as America reached further and further out into the world, the court was forced to confront the contradictions in our country’s ideology: sympathy vs. sovereignty. Earlier this month, the Supreme Court heard arguments in Jesner v. Arab Bank, a case that could reshape the way America responds to human rights abuses abroad. Does the A.T.S. secure human rights or is it a dangerous overreach?

Additional music for this episode by Nicolas Carter.

Special thanks to William J. Aceves, William Baude, Diego Calles, Alana Casanova-Burgess, William Dodge, Susan Farbstein, Jeffery Fisher, Joanne Freeman, Julian Ku, Nicholas Rosenkranz, Susan Simpson, Emily Vinson, Benjamin Wittes and Jamison York. Ken Saro-Wiwa Jr., who appears in this episode, passed away in October 2016.

Supreme Court archival audio comes from Oyez®, a free law project in collaboration with the Legal Information Institute at Cornell.

Support Radiolab by becoming a member today at Radiolab.org/donate.    

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Jad Abumrad: Hey. I'm Jad Abumrad. This is More Perfect. In the United States, we give the Supreme Court the power to find justice for people.

Dolly Filartiga: They come with boots, "Boom, boom, boom, boom."

Jab Abumrad: People who've been abused and manipulated.

Dolly: Horrible. They didn't knock on the door.

Jad: That power extends beyond state borders-

Dolly: They came with prepotencia-

Jad: -sometimes, even beyond national borders.

Dolly: -with, "Here I come. I show you who I am."

Jad: The question is, how far do we want it to go? Should our Supreme Court be the Supreme Court of the world?

Speaker 3: The honorable, the Chief Justice, and the associate justices of the Supreme Court of the United States. Oyez, oyez, oyez. All persons having business before the honorable, the Supreme Court of the United States are admonished to draw near and give their attention. Oyez, oyez. The court is now sitting. Oyez. God save the United States and this honorable court.

[music]

Jad: I grew up in a time when a lot of people genuinely saw America differently than they do now. This is the '70s and '80s, Carter/Reagan years. There was a sense, particularly, if you were a new arrival that America was special, exceptional. That we held the world to a higher standard. It's certainly what brought my family to America. Okay, so it's not that way anymore so much.

It seems like every day, at least in my lifetime, we're asking the question, "How should we feel about that, whatever that is, that higher calling that somehow, for better or worse, embedded in the idea of being an American? Is that stupidly wrongheaded and arrogant? Or is there something in that that we still should embrace?" Turns out, that argument is happening, has been happening, in a totally fascinating way at the Supreme Court, centered around this teeny, teeny law. It seems to ask some pretty big questions about who we are, who we want to be. The story comes from two KPs. Kelsey Padgett.

Kelsey Padgett: Hi.

Jad: Kelly Prime.

Kelly Prime: KP two.

Kelsey Padgett: KP one. I believe you are now KP one.

Kelly Prime: KP one? Okay.

Kelsey Padgett: You've ascended the ranks. I am, now, KP two, or three.

Jad: No, you're all KP one.

Kelly Prime: Seven.

Jad: Stop it.

Kelsey Padgett: KP 12. [laughs]

Jad: Okay, stop. Kelly, start us off.

Kelly Prime: This story begins, appropriately enough, not in America. It starts in 1976 with this woman.

Dolly: I have to get used to-- [laughs]

Kelly Prime: Is that a little better?

Dolly: Okay.

Kelly Prime: I guess the first thing if you could just introduce yourself?

Dolly: My name is Dolly Filartiga. I am from Paraguay.

[music]

Kelly Prime: Paraguay. It's the small country right on top of Argentina. Dolly's family, the Filartigas, are a pretty big deal over there.

Dolly: What happened in my family was that my grandfather was very rich.

Kelly Prime: The Filartigas made their money exporting tobacco to Europe for big cigarette companies like-

Advertiser: Gitanes.

Kelly Prime: -Gitanes.

Advertiser: -le plaisir de fumer.

Dolly: Was a family that owned a beautiful house in the countryside.

Kelly Prime: Lots of land.

Dolly: Two airplanes.

Kelly Prime: Now, this could have been Dolly's life.

Dolly: It wasn't going to be like that.

Kelly Prime: It wasn't because of her father. Your father, what's his name? or what was-

Dolly: Joel.

Kelly Prime: What did your dad do for a living?

Dolly: He's a doctor.

Kelly Prime: Her dad very famously, turned his back on his fancy upbringing and moved the entire family to the countryside.

Dolly: They always was short of money.

Kelly Prime: There, he set up a clinic to give medical care to the poor, indigenous farmers in that area.

Dolly: He take care of 47,000 people. He was the only doctor in a lot of cities.

Kelly Prime: Her dad became a patron saint of the countryside. Not only would he give them medical treatment, but when they came in, he would tell them, "Go vote. Rise above your station." As you can imagine, as word got out, this really pissed off Paraguay's ruler, at the time. A guy named Alfredo Stroessner.

Rene Horst: He was called "The Pulpo", "The Octopus" because they said he had arms and tentacles that reached into everybody's life there in the country.

Kelly Prime: That's Rene Horst.

Rene: I'm a professor of Latin American History, here at Appalachian State University.

Kelly Prime: When Dolly was growing up, Rene lived next door, in Formosa, Argentina.

Rene: Right across the river from Paraguay.

Kelly Prime: Rene says, at that time, both Argentina and Paraguay were part of this big network of dictators, all across Latin America. It was called, "Operation Condor."

Rene: Operation Condor was a network that linked together military dictatorships of Latin America, so Brazil, Argentina, Chile.

Kelly Prime: Bolivia, Uraguay, Paraguay.

Rene: It was all masterminded by Pinochet in Chile.

Kelly Prime: Rene said that Operation Condor was a lot like a spider web, with Pinochet as the master weaver, the spider. The Communist Revolution in Cuba had just happened, and so these six super militaristic dictatorships, they banded together to pretty much trap communism and keep it out of South America. Remember, this was the Cold War, and America really wanted to keep communism out of the continent too. It's really likely that the CIA was involved. The result was a network of state-sponsored terror.

Rene: In the darkest part of the night, they would come to your apartment, drag you out, stuff you in the trunk of a Ford Falcon car, and you would disappear forever.

Dolly: My father used to tell the patients, "Don't vote for Stroessner."

Kelly Prime: This was the context behind Dr. Filartiga's rebellion. Dolly said he'd travel all over the world, giving talks.

Dolly: -trying to show everything, what Stroessner was doing in the country.

Kelly Prime: He would tell his patients, "When the government comes to buy your crops-

Dolly: Put it away. Don't sell it.

Kelly Prime: -don't give them a thing."

[music]

Dolly tried her best to ignore all this.

Dolly: We didn't get along with my father. I have to say that. [chuckles] When I get older-

Kelly Prime: She moved away from the country.

Dolly: I came to the city to live.

Kelly Prime: What city was it?

Dolly: Asuncion.

Kelly Prime: She worked to put herself through school.

Dolly: Then, Juelito and Annalee follow me after.

Kelly Prime: Then, Dolly says, she worked to put her two siblings through school. Her sister, Annalee, at the time, was 14. Her brother, Joelito, was 17.

Dolly: Love Joelito. Love Joelito.

Kelly Prime: He was her favorite.

Dolly: Joelito look like my mother. Green eyes, Castano hair, light hair.

Paloma: I know that he had a lot of girls that crushed on him.

Kelly Prime: This is Dolly's daughter, Paloma.

Paloma: Very handsome, yes. He wasn't a player or anything.

Kelly Prime: What was Joelito's personality like? Was he loud? Was he quiet?

Dolly: You see those people that say things and you laugh because he's so funny all the time? Those people that they joke?

Kelly Prime: Comedian?

Dolly: Comedian. We always saw that he would become a comedian. He was very funny.

Kelly Prime: You two were close?

Dolly: Very close.

Kelly Prime: That's the backdrop. 1976. Dolly's in the city with her two siblings while her dad's out in the country, drumming up opposition to the regime.

Dolly: At that time, Joelito, he tell many friends that he feel like he was being followed. He didn't want to tell us because we always tell him to be careful. Even my father, Joel, used to tell him, "Be careful because you are, Joel, my son," and he will always-

Kelly Prime: At that time, in Paraguay, it was well-known that there were spies everywhere.

Dolly: The pÿragué. Pÿragué is an expression in Guarani.

Rene: A person with hairy feet-

Dolly: Feet with hair.

Rene: -is called a pÿragué. It's a nickname for informers of the regime.

Kelly Prime: Things were already tense, and then on March 29th, 1976, Dolly and her siblings are turning in for the night.

Dolly: Around 11:00, maybe.

Kelly Prime: Dolly and Annalee both sleep in one bed.

Dolly: Joelito has his room. He went to brush his teeth and then, "Goodnight." "Goodnight." What happened was that we heard, in the middle of the night, maybe 3:00 was [knocking], the bumping in the door, but with the shoes.

Paloma: She wakes up, like, "What's happening?"

Kelly Prime: She throws on a coat over her nightgown.

Dolly: To cover myself.

Kelly Prime: She goes to the door, where she finds a cop.

Dolly: He say, "You have to come with me. There is a little problem with your brother at Pena's house."

Kelly Prime: At Pena's house. Remember that name.

Dolly: Inspector General Americo Pena.

Kelly Prime: He lived two doors down and she didn't know him too well. He was a policeman and she'd always had suspicions about him. Dolly steps out into the chilly night in her nightgown.

Dolly: The street was full of policemen car.

Kelly Prime: The officer who was at the door walked her over to Pena's house, into the house, down a long hallway, that she says was lined with even more policemen.

Dolly: There maybe was, I don't know, 70 of them. 35 and 35, one close to another.

Kelly Prime: She says as she walked down the hall the policeman parted for her and guided her to a room in the back of the house.

Dolly: I went into that room, opened that door, and saw Joelito's body.

Kelly Prime: He was lying on his back on a mattress.

Dolly: This gorgeous human being, my brother was so beautiful.

Kelly Prime: His body is covered in gashes. You can see where he's been stabbed over and over again and maybe tied up.

Dolly: They burn him, they cut him. I found these-

Kelly Prime: There was an electrical wire attached to his genitals.

Dolly: Monstruoso. Terrible. You don't know how to explain how other human being can do that to another one who never did anything to you to-- I don't know.

Kelly Prime: Dolly says she bolted out of the room and immediately ran into Inspector General Pena. He was standing in the doorway.

Dolly: I saw Pena in my way. Pena told me, "You better shut up. It is the things that you deserve. You better keep quiet because next time will be you," something like that.

Kelly Prime: He told you, "Next time it would be you?"

Dolly: Yes, "Your family. You better shut up." I say, "I am Dolly Filártiga. You don't know who I am. I am Dolly Filártiga. You make me shut up today, but tomorrow every valley will know what you did to my brother."

Kelly Prime: Over the next three years, the family tried to get justice. They sued Pena in the Paraguayan courts, but their lawyers were threatened. One was disbarred. When Dolly and her mom testified against Pena-

Dolly: They sent us to jail. We went to jail.

Kelly Prime: When Dolly and her mom got out of jail, they raised publicity.

Dolly: I'm showing what they did to my brother.

Kelly Prime: They convinced reporters to write newspaper articles to call for an investigation, but before anything could happen, Pena-

Dolly: He disappears.

Kelly Prime: -he vanished. He fled the country altogether. The question is, if you're Dolly, what do you do? Your brother has just been brutally murdered. You know who did it, but you know you can't get justice in Paraguay because the whole court system is in with the regime, and you can't go to the International Criminal Court because it doesn't exist yet and even if it did exist, your case is way too small. What do you do?

Dolly: Well, I say, "We have to do something."

Kelly Prime: Fast forward to 1979.

Dolly: I moved to Washington.

Kelly Prime: Dolly is living in DC-

Dolly: Cleaning, cooking-

Kelly Prime: cleaning houses working part-time at a law firm.

Dolly: -very frustrated.

Kelly Prime: All this time, she's had fillers out with her dad's connections to NGOs, just trying to find out at least where Pena is living.

Dolly: I always have communication with a Paraguayan living there, and he told me-

Kelly Prime: Finally, one day that spring, she got a phone call from one of those connections.

Dolly: They found Pena. They told me that Pena was leaving here in Brooklyn.

Kelly Prime: He'd been working at a furniture store in Brooklyn when a fellow Paraguayan had recognized him, outed him.

Dolly: I didn't know what I was going to do, but I wanted justice.

Kelly Prime: How do you get justice in this case?

Dolly: I was desperate.

Kelly Prime: You've got a Paraguayan responsible for the death of another Paraguayan in Paraguay.

Dolly: Impossible to do anything. That all happened in Paraguay.

Kelly Prime: Even if he did something wrong, which it seems like he did, this has nothing to do with America.

Dolly: Nothing. I said, "We have to do something." I was looking for help and-

Kelly Prime: Dolly contacts a lawyer who gets her in touch with this guy-

Dolly: Peter-

Peter: Peter Weiss-

Dolly: -Weiss-

Peter: -Center for Constitutional Rights.

Dolly: -Center for Constitutional Rights.

Kelly Prime: Peter says even before Dolly showed up-

Peter: We were trying to figure out how to sue people committing crimes against humanity and war crimes.

Kelly Prime: For example-

Reporter: 504 unarmed Vietnamese women, children, and old men were massacred over a four-hour period by US troops.

Kelly Prime: This was around the time of the My Lai massacre-

Reporter: -in central Vietnam.

Peter: When that happened, my colleagues at the center and I-

Kelly Prime: They'd been wondering, was there a way for them to bring a case against US military on behalf of one of the victims?

Peter: -in an American court if the crime was committed abroad.

Dolly: I came and met Peter and asked for help.

Peter: I called an emergency meeting of the center staff.

Kelly Prime: He asked them, "Is there a way we can help? Is there some wormhole in American law that would let us bring non-Americans and non-American crimes into American courts?

Peter: One of us at the center was obviously a good researcher.

Kelly Prime: They said, "Hey, there's this super old super obscure law."

Peter: Something called the Alien Tort Statute.

Jad: The what?

Kelly Prime: The Alien Tort Statute.

Peter: It seemed just right for that case.

Dolly: I don't know how many hours and hours and hours and hours they tried. Finally, they found this law that they used to use against the piratas. The pirata?

Kelly Prime: Pirates.

Dolly: Pirates. Thank you.

Jad: Pirates.

Kelsey Padgett: Yes.

Jad: What do pirates have to do anything?

Kelly Prime: Oh, what-

Kelsey Padgett: Do you want to go straight to me? Or do you want to go, Kelly to hand-off?

Jad: I want someone to answer my question.

Kelsey Padgett: Sure.

Jad: Who are you, by the way?

Kelsey Padgett: I'm Kelsey Padgett, a reporter. Yes, this story has to do with pirates, definitely. We'll get there, but before that, there's this even crazier background. You got to buy it, you got to go with me on this journey because it's a lot different than the rest of the story. Ready to go on this journey?

Jad: Yes.

Kelsey Padgett: Take my hand. We're going to Philadelphia.

[music]

All the way back in 1784.

William: Granola and a banana.

Kelsey Padgett: This is William Casto, he's a law professor at Texas Tech. He told me this story, and it's really a story of a fight of a beef. Here's the situation. It's 1784. You've got this guy.

William: Mr. De Longchamps.

Kelsey Padgett: Charles Julian De Longchamps. He's a French guy and he's living in Philly.

William: He apparently was an officer in the French Cavalry Regiment and a nobleman by birth. By the way, some people didn't like him. Thomas Jefferson said he's "an obscure and worthless character".

Jad: Why? Why did he say that?

Kelsey Padgett: It doesn't matter. What's important is that he is here in America, has a bad reputation, and he ends up meeting this girl.

William: A nice young Quaker girl, "heiress to a competent fortune."

Kelsey Padgett: Ooh. Her friends?

William: Disapproved very much so. They started circulating rumors around town around Philadelphia that De Longchamp was a liar, that he was not of noble birth and wasn't even an officer.

Kelsey Padgett: That he was just probably gold-digging since she had this money.

Jad: I see.

Kelsey Padgett: De Longchamps is really mad about this.

William: He was incensed, and he put on his uniform, then he stormed over to the French Embassy.

Kelsey Padgett: He goes to the embassy.

William: There he spoke with Francoise Barbe-Marbois-

Kelsey Padgett: Another French guy.

William: -who was the embassy's first secretary. Here's an aside, Marbois later was Napoleon's Minister of Finance and he negotiated the Louisiana Purchase.

Kelsey Padgett: Oh, wow.

William: That's just an aside.

Kelsey Padgett: The point is Marbois is an important dude, but the other French guy, De Longchamps the, maybe scoundrel guy walks in and he doesn't show a lot of respect. He's like, "I need you to drop everything and help me out with the situation because people are spreading rumors about me. They're saying I'm not a nobleman or whatever. I need you to stand up for me."

William: Marbois refused. We don't know why. At any rate, in response, Longchamps shouted at Marbois, I'll translate it, "I will dishonor you." Then he called him, and this is a translation, a laughable scamp.

[laughter]

William: Can you imagine people calling someone a laughable scamp today?

Kelsey Padgett: It seems tame honestly.

William: Very tame.

Kelsey Padgett: Those words would create a national crisis. In fact, everything we're talking about today goes back to this little confrontation.

Jad: How? What do you mean?

Kelsey Padgett: Honor was this big deal back in the day. It's why Hamilton dies. Something like calling someone a laughable scamp could cause a death, you know what I mean? That's the kind of thing you do a duel over.

William: It was an indignity.

Kelsey Padgett: Marbois was so pissed at the moment and he did the right thing in that time period which is, instead of have a duel with the man, he contacted his bosses. He wrote a letter across the seas to France and said, "Y'all, what are we going to do about this?"

William: Now, the French don't like what's going on. The French want us to put him on a ship back to France and have France punish De Longchamps and the Pennsylvania Executive Council agreed but the judges refused. They say, "We're not going to do that. That's ridiculous."

Kelsey Padgett: All that causes France to say, "You know, what? If we can't be sure that America is going to take care of this, that they're going to punish this guy, maybe we can't take this brand new country seriously. Maybe it's a land of no law."

Jad: Oh, It really escalates?

Kelsey Padgett: Yes. It becomes this huge thing and you got to keep in mind-

William: At that time, the United States was a third-world nation.

Kelsey Padgett: We were weak. France had been our buddy during the revolution. The feeling was, we desperately needed the help of other countries because we were just this baby, little country.

William: By the way, the Dutch ambassador was furious too because he said, "If you don't punish Longchamps, I'm leaving the State." He actually threatened to leave the state. It really created problems.

Kelsey Padgett: We had to do something, but the question was what?

William: The national government had no authority whatsoever to deal with, or punish a person like Longchamps because it wasn't a crime to just say, "I will dishonor you."

Kelsey Padgett: Even if it were, the insult happened at what was essentially the French Embassy.

William: Some have argued that made this a situation outside of the United States.

Kelsey Padgett: Oh, so I step in there and I'm suddenly under the rules of France?

William: Yes, that's the argument.

Kelsey Padgett: Did we have jurisdiction over that space? Did we not? Point is that, the new US government-

William: They were just powerless.

Kelsey Padgett: They didn't know what to do.

Jad: What happened?

Kelsey Padgett: Well, the case goes to court.

[music]

The judge in that case, he's trying to figure out what to do. He's in a really bad political situation. He's got to punish this guy and he's looking at his books, no law. He's got no laws to charge this guy under. Then it occurs to him, there are some other laws that aren't explicitly written down, but that all people across the world agree are bad things. All nations agree that this is bad, and can be punished. The classic example of that is pirates.

[music]

Pirates are out there on the open seas, pillaging, plundering, killing, and they are not really subject to any one nation's laws. They're not doing this in a nation. No one had specific jurisdiction over them. Going all the way back to Roman times, pirates were designated as universal enemies,

Samuel Moyn: They're hostis humani generis.

Kelsey Padgett: That Samuel Moyn, history professor at Yale University.

Samuel Moyn: The phrase in Latin is "hostis humani generis" which means, the enemy of the humankind or race. It means that maybe there's things that are so heinous, you don't have to pass a law to make them illegal and you don't have to be empowered to stop or punish the perpetrator of such crimes because they're just so bad. Piracy was the classic example.

Kelsey Padgett: What the judge decides is that this French guy in Philadelphia, who insults the fancy French guy in Philadelphia, the way that we're going to solve this by saying that the insulator, he's a little bit like a pirate. No, he doesn't use the term "pirate", but it's the same concept. He said that that guy, De Longchamps, has broken international norms. "He is guilty of an atrocious violation of the law of nations, not only from the sovereign he represents but also hurts the common safety and well being of nations. He is guilty of a crime against the whole world." That's a quote from the ruling.

William: They then fine him 100 French crowns and two years in jail.

Kelsey Padgett: Two years?

William: Two years. That's a lot

Kelsey Padgett: For saying-

William: I will dishonor you.

Kelsey Padgett: Wow. This move by the judge basically works. Marbois and France feel good, their honor has been protected. The Dutch Ambassador doesn't leave, he stays, but more importantly for our story, in 1789, Congress passes some of their very first laws. There's this one big bill about courts and in there, is this thing called the Alien Tort Statute. The Alien Tort Statute, it was just written into law to deal with this kind of situation where a diplomat is insulted or attacked or something like that, but more generally, it was meant to connect US law to international law.

The law basically says-- I'm simplifying this a bunch, but it basically says if somebody violates international norms, like a crime against the whole world, they can be sued in US civil courts.

Jad: Wait, you're saying there was a law from the beginning that allows non-US people to sue each other for non-US crimes in US courts?

Kelsey Padgett: Yes.

Jad: That's so weird.

Kelly Prime: The thing is-- this is Kelly again.

Jad: Hello, Kelly.

Kelly Prime: When it comes to this law, forever, no one actually used it. It was barely mentioned for 200 years.

Jad: Why? Why didn't it come up?

Kelly Prime: If you think about it, though, it makes sense it wasn't used because it was a super-specific law. This was a weird circumstance in which we really needed to bring international law and use it inside our borders. That kind of thing like diplomatic fights, that didn't happen very often. More generally, the prevailing idea at the time was that internationally, we should stay in our lane. If you're going to come into our country, and mess with our citizens, yes, we're going to do something about that but if you want to do something to your own citizens, that's not my business.

Eric: There's an old idea that in every country the government can do to its people, whatever it wants, and nobody in any foreign country, no foreign government has any business telling them what to do.

Kelly Prime: This is Eric Posner.

Eric: Professor of law at the University of Chicago.

Kelly Prime: He says the reason that the Alien Tort Statute was pretty much ignored is because of this idea.

Eric: This idea of sovereignty.

Kelly Prime: That, "We're not going to tell you what to do in your borders, so don't you come into our country and tell us what to do."

Eric: Most people don't know this but there was actually a humanitarian basis for this harsh-sounding principle.

Kelly Prime: Came about in the 17th century, he says.

Eric: The problem back in the 17th century were religious wars.

Kelly Prime: Protestants invade the Catholics, Catholics invade the Protestants.

Eric: Endless strife and so the idea was, "Let's simplify things and just understand that in foreign countries, people have different values and ideas. It's just not practical or good in the long run if we try to tell people in foreign countries how they should behave." This was the dominant view for hundreds of years.

Kelly Prime: Until World War II, really.

Eric: The Holocaust changed everything.

Speaker: No words can express the words discussed at Germany's organized [inaudible 00:26:41]

Eric: One of the defenses that Nazis gave to the specific charge of massacring Jews is that they're protected by the principle of sovereignty. That was considered an unacceptable argument and countries around the world basically agreed that limits had to be put on sovereignty. Those limits would be known as human rights.

[MUSIC]

Kelly Prime: Just a few years later in 1948-

Eric: You get the Universal Declaration of Human Rights.

Speaker: This is the first occasion on which the organized [unintelligible 00:27:15] nation has made a declaration of human rights.

Kelly Prime: Suddenly, all eyes turned to human rights.

Samuel Moyn: Look, it’s a golden moment.

Kelly Prime: Professor Samuel Moyn again. He says if you fast forward to the '70s-

Samuel Moyn: Americans having fought Vietnam, having sullied themselves and doing so want to bring human rights to the world now. The Human Rights Movement was very exciting. There were rock concerts and-

Speaker: Ladies and gentlemen, a lot of famous people.

Samuel Moyn: It’s Joan Baez and a lot of rock stars and pop culture icons get involved.

Speaker: Amnesty International-

Samuel Moyn: Amnesty wins the Peace Prize.

Speaker: The Nobel Peace Prize for 1977.

Jimmy Carter: As long as I am President-

Samuel Moyn: Jimmy Carter's inviting-

Jimmy Carter: -The government of the United States-

Speaker 6: -dissidents from Eastern Europe to visit the White House.

Jimmy Carter: -will continue throughout the world to enhance human rights.

Samuel Moyn: It's a new cause that's very exciting to a lot of people, and rightly so. It was would be great if America could make the world a better place.

[music]

Kelly Prime: This brings us back to Dolly.

Dolly: I came and met Peter.

Kelly Prime: Peter Weiss.

Peter: Standing for constitutional rights.

Kelly Prime: -trying to figure out how to bring Dolly's case to US courts. That's the context, America is having this moment with human rights and we want to bring it to the rest of the world. When someone in Peter’s office suggests using this old little law to get justice for Dolly, it seems obvious, of course.

Peter: I called an emergency meeting of the center staff.

Kelly Prime: Basically their idea was that some crimes like piracy were so bad that borders didn’t matter. Anyone should be able to prosecute them and the US should be able to bring these people to court on behalf of the world.

Peter: I have to tell you that the majority of our colleagues there thought we were slightly insane.

?Kelsey Padgett: Did your boss say, "What?"

Peter: Yes, people said, "You're never going to get somewhere with this. It's all about Paraguay."

Kelly Prime: Dolly's lawyers, they file their papers, and eventually, this case gets in front of a Federal Circuit Court.

Peter: The Federal Court, Eastern District, Brooklyn.

Kelly Prime: In the day of the trial, you saw Pena in the elevator at court?

Dolly: Yes. I met him in the elevator and I asked him, "Why you did that to my brother? Why did you do that to him? Why?" He couldn't answer. He was shaking. Anyway, we were in the car, he said, "[foreign language] and so what?"

Kelly Prime: In the court, they submitted autopsy reports.

Dolly: We bring the photograph for-

Kelly Prime: Pictures.

Dolly: We bring the picture of him with the mattress. Joelito was in the mattress, tied the feet and the hands like this.

Kelly Prime: Peter says that after he made his argument, an interesting thing happened.

Peter: When I finished my argument-

Kelly Prime: The judge-

Peter: -started to go back to his chambers, and before he got out of the courtroom, he turned around and said, "Interesting case."

Jad: Oh, what happened?

Kelly Prime: The judge ruled against them, but they appeal.

Peter: Then it goes up to the Second Circuit.

Kelly Prime: Ultimately, a judge orders Peña to pay $10 million to Dolly and her family.

Jad: They won?

Kelly Prime: Yes.

Dolly: What happened was like a miracle. I was able to get justice in United States.

Samuel Moyn: In the Filártiga case, they convinced the Second Circuit that the Alien Tort Statute-

Kelly Prime: Wasn't just for stuffy diplomats anymore.

Samuel Moyn: -it was for Human Rights. They say, "Look, torture is now like piracy."

Kelly Prime: This ruling sets off-

Samuel Moyn: We're off to the races.

Kelly Prime: -an explosion of cases. In 1984, you had Tel-Oren, the Libyan Arab Republic and-

Dolly: It's unbelievable.

Kelly Prime: -'85, the Soviet Union, then Dardel v. USSR. 1987, there was a case from Argentina called Forti v. Suarez-Mason.

Dolly: It's wonderful.

Kelly Prime: 1991, Guatemala. 1993, Ecuador and Peru, 1995, former Yugoslavia. In 1999, Chile, there was a case [inaudible 00:32:01]

[sound cut]

Kelly Prime: Basically, what you saw in the '80s and '90s and into the early 2000s, is that cases from all over the world started just flooding into American courts.

Samuel Moyn: The reason this statute is so important is that it's American law. It gives American lawyers who want to use their legal training something to do as part of this cause. Lawyers can save the world while practicing law.

Katherine: I think looking at the role of the ATS, it's hard to underestimate just how much impact it had.

Kelly Prime: This is Katherine Gallagher, also from the Center for Constitutional Rights.

John: The Alien Tort Statute over the last 35 years, has become the source of almost all significant human rights litigation in the United States, and indeed, in the world.

Kelly Prime: That's John Bellinger.

John: Legal adviser for the Department of State from 2005 to 2009.

Kelly Prime: Before Filártiga, there was very little that victims of Humans Rights violations could do. There were a lot folks, especially in the American legal system who felt like America had never been a greater force for good in the world. The rest of the world wasn't so sure.

Jad: That's coming up. More Perfect will continue in a moment.

[music]

This is More Perfect. I'm Jad Abumrad, back to the two KPs, Kelsey Padgett, and Kelly Prime. Here's Kelly.

Kelly Prime: Where we left it, Filártiga had just happened. We had an explosion of cases. American human rights lawyers were feeling really good about themselves, but diplomacy is a delicate thing.

John: Many foreign governments, including many western democracies-

Kelly Prime: That's John Bellinger again.

John: -Great Britain, Australia, Germany, Switzerland, would regularly complain to me as the legal adviser for the State Department, that they thought that the Alien Tort Statute was in fact itself a violation of international law because it allowed US judges to have jurisdiction over actions that had absolutely nothing to do with the United States.

Kelly Prime: Instead of dialing it back, human rights lawyers, they decided, "Why not push it even further?"

[music]

Kelly Prime: Around 1995, they made a big leap. They decided that instead of just going after individuals like foreign government officials, they were going to use this law to go after foreign corporations.

?Speaker: When the first Alien Tort Statute cases were filed against corporations, these cases were really seen as slightly crazy. "How can you do this? These are corporations, these are not governments. These are not dictators. How can you sue them under this law?"

Kelly Prime: What human rights lawyers said was, "If Dolly's case showed us that this law is about modern-day pirates, what better example of pirates do we have nowadays than multinational corporations?" If you want to go all the way, you could say, there are big, massive entities that just can reach out their tentacles into any country. They float between jurisdictions, move from one to the next to the next, and commit brutal crimes. Sometimes they empower dictators to commit those crimes. When you try and pin them down, when you want to hold them accountable, they can just vanish.

Kelsey Padgett: All of that sounds really abstract. For me, it didn't really register why you would go after a corporation until I heard this story, the story of Ken Saro-Wiwa.

Ken Wiwa: I grew up in a political household. My father was a national figure because he was a writer and a commentator in newspapers.

Kelsey Padgett: Just like Dolly, Ken had this famously outspoken dad.

Ken Wiwa: Very much a social critic.

Kelsey Padgett: He was a famous thorn in the side of the regime. The regime in this case is this military dictatorship in Nigeria.

[music]

Reporter: New year’s eve, the military deposed the civilian democratically elected President Shagari.

Kelsey Padgett: In the '80s and '90s, Nigeria went through a series of military coups. Ken's dad, who actually wrote a sitcom that was very famous, millions of people around the country watched it, he would make jokes about the regimes. He would write articles about them.

Ken Wiwa: The subject of both his columns and his television program, the inequalities of Nigeria's political system.

Kelsey Padgett: The situation at the time in Nigeria was that you had tons of oil under the ground.

Ken Wiwa: An estimated $30 billion worth of oil.

Kelsey Padgett: In order for the military regime to get that out, they partnered with a division of Shell.

Advertiser: Shell companies in Nigeria are supplying domestic gas generating electricity.

Kelsey Padgett: The problem was the people who lived on the land where the oil was, they were really poor and they weren't given barely any of this money.

Ken Wiwa: Against that, to add insult to injury, unchecked oil production was creating an environmental disaster in our community.

Ken Saro-Wiwa: What we are working on now is crude oil. This land is lost for the next 1,000 years.

Kelsey Padgett: This is a clip of Ken's father showing a reporter ruined farmlands.

Reporter: An oil pipe burst here in 1970. Oil still seeps to the surface.

Ken Saro-Wiwa: Nothing is going to grow here. It's a land that's been devastated by oil production. In some places, surface water contains 900 times the accepted level of benzene which causes cancer.

Kelsey Padgett: Ken's Dad, he was writing articles about this, he was speaking out about it. Eventually, he decided that wasn't enough.

Ken Wiwa: He decided, I think in the late '80s, that he was going to take to the streets.

Ken Saro-Wiwa: [foreign language]. The indigenous people have been cheated through laws-

Kelsey Padgett: In 1993, he organized Ogoni Day, where 300,000 people come out to protest.

Ken Saro-Wiwa: We are going to demand our rights peacefully, nonviolently, and we shall win.

[applause]

Ken Saro-Wiwa: No to Shell.

Protestors: No to Shell.

Kelsey Padgett: Over the next month, the protests keep going. They escalated.

Reporter: As tension increased, an oil worker was badly beaten-

Kelsey Padgett: Then Shell pulled out of the region.

Reporter: -resulting in the closure of all operations in the area.

Kelsey Padgett: They took millions of dollars with them.

Ken Wiwa: The government depended almost solely on the revenues from that one economic activity.

Kelsey Padgett: Not long after the protests, Ken's dad was thrown into jail and Ken Jr., he begins frantically traveling the world trying to raise awareness about his dad's situation.

Ken Wiwa: To publicly put pressure on General Abacha, Nigeria's head of state.

Kelsey Padgett: On November 10th, 1995, two years after his dad had been arrested, Ken is at this international conference in New Zealand trying to lobby world leaders. He says that after dinner, he just got this funny feeling.

Ken Wiwa: I'm walking across one of the streets and I just saw the sunset that evening. It was a beautiful sunset actually. There was a big red sun just sinking into the bay. I felt something go in my chest. I think knew then that something had happened.

Reporter: Ken Saro-Wiwa, writer, human rights activist, campaigner on behalf of his fellow tribesmen hanged this morning in a Nigerian prison.

Kelsey Padgett: Ken says that world leaders spoke out. The Prime Minister of England, even Nelson Mandela.

Ken Wiwa: Unfortunately, it was to no avail.

Kelsey Padgett: Nothing happened.

Ken Wiwa: It's difficult to know what to do with all of that. How do you get justice for what happened to your father?

Kelsey Padgett: You could argue, and this is what lawyers later did argue that the only way to get justice was not to go after the regime but to go after Shell and its parent company, Royal Dutch Petroleum. In going after Shell they claimed that they helped the Nigerian government do some horrendous things. They claimed that Shell aided and abetted the Nigerian government in kidnapping and torture and rape-

Jad: Shell directly did this stuff or-

Kelsey Padgett: Aided and embedded. The claim is that they would supply guns. That they-

Jad: They actually supplied guns?

Kelsey Padgett: Actually, the allegation, the claim is that it's just ammo.

Jad: Still, that's--

Kelsey Padgett: There were other things too. They claimed that Shell would call in this special forces unit of the Nigerian government that colloquially everybody was calling the "kill and go" mob.

Jad: Oh, they were claiming Shell was calling in hits?

Kelsey Padgett: Yes, basically. That Shell was hand in hand with the government on this. Of course, Shell denies all this. In 2002, people like Ken, who had lost brothers, lost family, and also surviving victims of all this violence they banded together with some American lawyers and brought a case under the Alien Tort Statute. They alleged that Shell was essentially-

Samuel Moyn: The hostis humani generis, the enemy of the humankind or race.

Kelsey Padgett: Therefore could be tried in American courts.

Kelly Prime: As you can imagine, they got push-back and this case got challenged all the way up to the Supreme Court.

?Chief Justice: [unintelligible 00:42:04] argument first this morning in Case 10-1491, Koibel versus Royal Dutch Petroleum.

Kelly Prime: This case was actually argued twice, but we're combining them here for simplicity. The basic issue in this case seemed really simple at first, "Can you use this law against corporations?" If you read the Filártiga decision.

Justice Kagan: The torturer has become like the pirate and slave trader before him an enemy of all mankind.

Kelly Prime: This is Justice Kagan, actually reading from the Filártigadecision and saying, "We-

Justice Kagan: We gave the stamp of approval-

Kelly Prime: The courts have said, "This is okay."

Justice Kagan: -that there were certain categories of offenders that were today's pirates.

Kelly Prime: The question was, are corporations in that category? Can they be considered today's pirates?

Paul Hoffman: The principal issue before this court is whether a corporation can ever be held liable for violating fundamental human rights norms under the Alien Tort Statute.

Kelly Prime: That's Paul Hoffman, the lawyer representing the Nigerians bringing the case.

Paul Hoffman: Let me start by saying that the international human rights norms that are at the basis of this case-

Kelly Prime: All the terrible crimes we've all already agreed are crimes against humanity.

Paul Hoffman: -all of those human rights norms are defined by actions. They're not defined by whether the perpetrator is a human being or a corporation.

Kelly Prime: If Filártiga says that torturers are today's pirates what about a group of torturers? What about pirates and corporate?

Justice Breyer: You think in the 18th century, if they brought pirates incorporated, and we get all their gold and Blackbeard gets up and he says, "Oh, it isn't me, it's the corporation." Do you think that they would have then said, "Oh, I see. It's a corporation. Goodbye, go home."

Kelly Prime: That's Justice Breyer basically agreeing that in this case to differentiate between a corporation doing bad things and a person doing bad things, it's silly.

Samuel Moyn: This case clearly struck Justice Breyer powerfully.

Justice Breyer: The question to me is, who are today's pirates?

Samuel Moyn: He says Adolf Hitler was like a pirate.

Justice Breyer: If Hitler isn't a pirate who is?

Samuel Moyn: They're the dread pirates of our time.

Justice Breyer: We have treaties that say there is universal jurisdiction. The Alien Tort statute that was applied to human rights cases from Filártiga on is part of a trend in the world today. The trend in the world today is towards universal justice for people and corporations that violate these kinds of norms. That's the trend. In fact, the United States has been the leader in that, our government has proclaimed our leadership position.

Rene: We thought the argument went extremely well, and we really did not see how we should lose.

Kelly Prime: Then it was Shell's turn.

Samuel Moyn: The trouble is that the choice to pursue corporations-

Kelly Prime: Samuel Moyn again.

Samuel Moyn: -might have killed the goose that laid the golden eggs because, on the one hand, it makes sense to shift to corporations, they have the money. On the other hand, corporations will use their money to hire the best lawyers they can buy.

Kelly Prime: Lawyers like.

?Chief Justice: Miss Sullivan.

Kelly Prime: Kathleen Sullivan.

Kathleen Sullivan: Mr. Chief Justice, and may it please the Court-

Kelly Prime: When Kathleen Sullivan got up there she in the defense team, basically sidestepped the whole issue of whether corporations should or should not be considered pirates, whether this law should or should not be applied to corporations? They actually went bigger. They started talking about all the reasons why actually, using the ATS for non-American crimes might be a really bad idea for anyone. It came down to three main points. One, reciprocity.

Kathleen Sullivan: We fear that if we say that our United States court can be open to try any accused law of nations violator, for anywhere in the world, regardless of the place of the conduct, the other nations of the world might seem to do the same to us.

Kelly Prime: Basically, if we can take people from other countries and try them in our courts, what's stopping them from doing that to us.

Kathleen Sullivan: That should inform your decision today.

Kelly Prime: The second point made by Shell-

Kathleen Sullivan: Through the offense to the principle against international friction is at its highest.

Kelly Prime: -international friction. This could cause a diplomatic nightmare. You're basically saying to other countries, "These judges that you didn't elect, we didn't like them, either, frankly. I didn't vote for them. You didn't vote for them. They were appointed and now they're going to be patrolling international law. Are we really comfortable with that?"

Kathleen Sullivan: I want to stress that our point is that the US is projecting here, our law onto foreign countries.

Kelly Prime: Finally-

Justice Alito: The statement of the case is really striking. This case is-

Kelly Prime: -on the most basic level-

Justice Alito: What business does a case like that have in the courts of the United States?

Kelly Prime: How is this any of our business.

Justice Alito: There's no connection to the United States whatsoever.

Kelly Prime: It's a point that really jived with Justice Alito.

Justice Alito: Why does this case belong in the courts of the United States? It has nothing to do with the United States other than the fact, a subsidiary-

Kelly Prime: In a way, in that moment, he captured how America had shifted. We didn't want to pretend to be that shining city on the hill anymore. That was over.

Chief Justice: I have the opinion for the court in case number 10-1491 Kiobel and others versus Royal Dutch Petroleum Company and others.

Kelly Prime: In the end, the court decided to rule in favor of Shell and Royal Dutch petroleum.

Samuel Moyn: The Chief Justice wrote the decision.

Chief Justice: Justice Story wrote in 1822, that no nation has ever yet pretended to be the custos morum of the whole world, the guardian of morals of the whole world. First, it's just a matter of common sense that when Congress passes a law, it is passing a law that applies in the United States and not some other country, unless the law tells us otherwise. Second, regulating conduct abroad risks serious foreign policy consequences. Courts are and should be reluctant to invite such consequences, unless that is what Congress clearly intended. We see no reason to-

Samuel Moyn: He says that extraterritorial conduct, conduct that's outside the United States isn't going to count. There has to be some relationship to the United States.

Kelly Prime: Basically, they took the ATS and they clipped its wings.

Jad: I'll tell you the thought brewing in my mind, and I'm wondering if you would agree or you think it's stupid. The sense that I have with the ATS is that it came about at a moment of great idealism and hope. Now after the fog is cleared, so to speak it seems to represent not just hope, but naivete. The fact that we think we can change the world. That it's that easy. The ATS and its falling out of favor somehow represents in a way, the way in which we've all had a sober awakening. I wonder do you feel like human rights in the way we understood it is dead?

Samuel Moyn: No. I think it's transformed our idealism. Maybe the disaster in Kiobel was a moment of stepping back to think a bit more broadly about how we can make the world a better place.

Kelly Prime: Samuel Moyn says, "We do need to rethink some things. Frankly, it's a little dishonest to just pretend."

Samuel Moyn: -that America brings justice to the world. America was founded on the idea of human rights.

Speaker: Ours was the first nation in the history of the world to be founded explicitly on such an idea.

Samuel Moyn: Which is not really true. As they've presented their cases, the Human Rights Movement leaves out how much the United States has often been involved and the evil they're portraying in court.

Kelly Prime: At the very least, he says that what this decision shows us is that before we run around judging other countries, we should take a hard look at ourselves. More importantly.

Samuel Moyn: In the end, we can avoid the question, "What's the best bang for our buck?" It's just not proven yet that ATS is it.

Kelly Prime: He said, "All you really had was a few individuals who won cases, and by the way, most of them never got any money."

Jad: Really?

Kelly Prime: Yes. Dolly didn't get paid. After she won, Pena fled again.

Samuel Moyn: In a way, the Alien Tort Statute didn't have far to fall to begin with.

Jad: They're just symbolic victories?

Kelly Prime: You could definitely see it that way. Do you feel like you got justice? What did you get into this?

Dolly: Yes, yes, yes.

Kelly Prime: Dolly Filártiga doesn't. You didn't get any money back, correct?

Dolly: Yes. It never was for the money. Listen, the money won't pay [Spanish language] Joelito. I find that Joelito [Spanish language] I know how to say that in English sometimes, but that there was a reason. Yes, yes, I lost a brother, but when we won that case in New York, in the United States, I get so many other brothers and sisters all over the world that they find that Joelito didn't die. Joelito lives forever.

[music]

Jad: Our researchers are Kelsey Padgett and Kelly Prime. The debate about the ATS and America's role in the world continues. The court just heard arguments in another ATS case this term, it's called Jesner v. Arab Bank. It's a suit brought by nearly 6,000 plaintiffs against a Jordan-based bank accused of financing terrorism. Odds are that the court will use the case to further limit the ATS, but that remains to be seen.

More Perfect is produced by me, Jad Abumrad with Suzie Lechtenberg, Julia Longoria, Kelly Prime, Sean Rameswaram, Alex Overington, and Sarah Qari. This episode was produced with Kelsey Padgett and significant editing Juju from Jenny Lawton. Take it, Jenny.

Jenny: We also had help from Elie Mystal, Cristian Farias, Linda Hirshman, David Gebel and Michelle Harris. Supreme Court audio is from Oyez, a free law project in collaboration with the Legal Information Institute at Cornell. Leadership support for More Perfect is provided by The Joyce Foundation. Additional funding is provided by the Charles Evans Hughes Memorial Foundation. Additional music for this episode was by Nicholas Carter

On a sad note, Ken Saro-Wiwa Jr, who appears in this episode passed away in October 2016.

 

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