Sometimes it's tempting to start moaning and pissing about Democratic friends "like these" -- except when the legislation they sponsor is so shameful that it's hard to imagine how they could ever be our friends.
Senator Feinstein (D-CA) has introduced a bill that would effectively gut the Alien Torts Claims Act (ATCA), a law that has been used to hold American corporations and others accountable for complicity in human rights violations abroad.
Corporate America has been pressing for this kind of "reform" ever since 1996, when the Washington-based human-rights group International Labor Rights Fund helped 15 villagers from Myanmar (Burma) sue Unocal for forced labor, rape and a murder allegedly committed by soldiers guarding its pipeline there. Late last year, after continuously denying responsibility, Unocal settled with the plaintiffs.
Dozens of other suits have been filed against various companies, including ExxonMobil (Aceh, Indonesia) and WalMart (sweatshops), ChevronTexaco (assisting the brutal Nigerian military's gross human rights abuses associated with ChevronTexaco's oil production activities in the Niger Delta) and Shell (also Nigeria).
In 2002, victims of South African apartheid sued 20 multinational corporations for "knowingly aiding and abetting the apartheid enterprise." The defendants in that case included IBM which allegedly supplied the computers used to create the hated "pass book" system that required all black people, banned from the streets in white areas after dark, to carry passes. (Hauntingly similar to the story Edwin Black writes about their role in Nazi Germany.)
Gary Clyde Hufbauer, of the Institute for International Economics, told the Financial Times last September that more than 50 multinationals have been sued under the ATCA, with damage claims totaling over $200 billion. With a total 100 cases reportedly filed since 1980, that means about an equal number of cases have been filed against dictators, death squads, and other government psychopaths.
For example, victims have also used the law to sue the estate of Philippine dictator Ferdinand Marcos and bring charges against Radovan Karadzic, the leader of the Bosnian Serb army (for genocide, war crimes, torture, summary execution, crimes against humanity, and sexual violence). Victims of state violence have files suit against well-known inductees of the Human Rights Hall of Shame from countries like Haiti, Indonesia, Guatemala, El Salvador, Argentina, etc.
Predictably, the Bush administration has shamelessly attacked the law. In the Unocal case, while the business lobby primarily argued that companies should not be held liable, the Justice Department took the position that the entire law should cease to function, and that the previous 23 years of precedent had been wrongly decided. And the administration has also argued that the law impedes the government's ability to prosecute the "war" on terror.
To many this attempt to immunize corporations under the guise of protecting the public is a transparent fallacy.
In an August 7, 2003 NYTimes Op-Ed, for example, Senator Arlen Spector defended the ATCA against its critics by explaining that "American credibility in the war on terrorism depends on a strong stand against all terrorist acts, whether committed by foe or friend. Our credibility in the war on terrorism is only advanced when our government enforces laws that protect innocent victims. We then send the right message to the world: the United States is serious about human rights." A position that's obvious after Abu Ghraib.
As for the role of corporations, many if not most of the cases filed involve companies that have partnered with abusive regimes in nations with an abundance of natural resources yet lacking the bargaining power necessary to control their corporate partners in development.
As Vice President Dick Cheney once explained from the commanding heights of his post as the CEO of Halliburton, democracy, the rule of law and human rights cannot always be accommodated when natural resources are the prize: "The problem is that the good Lord didn't see fit to always put oil and gas resources where there are democratic governments." (Indeed.)
EarthRights (a group fighting to defend ATCA against these attacks) suggests that to convince the big multinational corporations that their overseas investments are safe, host governments often offer "security" for the big extraction projects in the form of troops. The companies too often accept such offers and the attendant "controversial but necessary relationships with the state security forces," as the Oil and Gas Journal once put it.
Typically, these projects are opposed by local people who rarely benefit and suffer a sudden disruption of their culture, lives and environment. The result is often an escalation of "security" and violence. As former Unocal President John Imle stated about the military build-up around the company's Yadana pipeline in Burma, "What I'm saying is that if you threaten the pipeline there's gonna [sic] be more military. If forced labor goes hand in glove with the military yes there will be more forced labor. For every threat to the pipeline there will be a reaction."
According to the Multinational Monitor, the attack has been planned for some time and is being led by certain trade associations and front groups, including The National Foreign Trade Council (NFTC), the U.S. Chamber of Commerce, the U.S. Council of International Business and the International Chamber of Commerce.
The brigades of corporate lobbyists pushing to gut the ATCA on the Hill are there not just because they have apparently secured champions on both sides of the aisle, but also because the courts haven't fully sympathized with their position. In a case case, Sosa v. Alvarez-Machain, the Supreme Court ruled in June 2004 that new ATCA cases could be brought so long as the alleged wrongdoing involves egregious violations like slavery, torture and genocide.
So just how will Feinstein's bill gut the ATCA? For one, it allows the President to step in and stop any case by certifying that "such exercise of jurisdiction will have a negative impact on the foreign policy interests of the United States."
In addition, it forces a claimant to bring suit in the country where the violations occurred first. (Right. Anyone who knows the climate of fear and terror that exists in countries like Guatemala and Columbia knows just how easy that is. I bet you didn't know that the victims of torture seek asylum here in the U.S. because they are just forum shopping, along with greedy trial lawyers?)
The bill would also establish a ten year statute of limitations and like many tort "reform" laws, requires a high level of evidence before the discovery stage in the case (i.e. witness deposition and document production) can proceed (a virtual Catch-22).
To learn more about the ATCA and get regular updates on the bill, be sure to check out EarthRights and Human Rights Watch.