Corporate Liability under the Alien
Tort Statute and Kiobel II
As explained
below, a recent decision highlighted by Lawfare prompted this
particular post that touches on a subject I find intriguing:
corporate liability under international law. We now have a Supreme
Court decision (Kiobel II) that touches on the issue without deciding
it, and two lower court decisions interpreting that Supreme Court
decision, which are addressed here. The basic premise of this post is that both
lower courts got it wrong insofar as they read more into Kiobel II
than is actually there. Further, the
Kiobel II decision actually shows that corporate liability under the
ATS is still very open to question, and will likely result in a
divided and contentious decision when the Supreme Court finally
addresses it.
I think the headline is a bit hyperbolic, but agree or disagree, the article itself is more than worth the read: 60 words and a War Without End
Interesting side note: The language the Obama
administration uses regarding military force -- "associated forces" --
and quoted several times in the article isn't in the AUMF,
but IS in the 2012 NDAA. The detention provisions of the NDAA
supposedly just affirmed the AUMF, but actually expanded it.
Interesting to see that, from what is quoted in this article, much of
what I think is actually the real danger of the language of the NDAA
seems to have come from the Obama administration's own legal arguments
in a Federal case early in his administration, where the argument was
being made that the AUMF allowed us to detain a suspect in guantanamo
who was challenging that detention.
That very language in the
NDAA supposedly "interpreting" the AUMF while in reality expanding it
("associated forces", "coalition partner," "belligerent act,"
"substantially supported") in the specific context of who we can detain
seems to have been lifted directly from the Government's arguments in
that case and placed in the NDAA. The dangerousness of this expansive
language in the NDAA is discussed here. /self promotion.
From the looks of it, that exact same dangerously expansive language
has been the framework for "interpreting" ALL force exercised under the
authority of the AUMF.
