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.
It's been awhile since I've posted, and I'm sure that all 2 of the people who look at this blog are severly disappointed. I just wanted to add a quick note, from a story that showed up on Lawfare.
Basically, a Federal Judge has enjoined enforcement of Sec. 1021 of the NDAA, discussed here. The Court found that --despite the Government's argument that the NDAA did nothing more than reaffirm the AUMF-- the vague language of the NDAA as to who qualifies as a "covered person" capable of detention stretches beyond who would be a "covered person" under the AUMF.
As stated in the decision:
First, by its terms, the AUMF is tied directly and only to those involved in the events of 9/11. Pub. L. 107-40, 115 Stat. 224 at § 2(a) (authorization of the president to use force related to “attacks that occurred on September 11, 2001); see also id. at Preamble (“Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens . . .”). Section 1021, in contrast, has a non-specific definition of “covered person” that reaches beyond those involved in the 9/11 attacks by its very terms.
Considering that this should have been the real concern about the NDAA's detention provisions to begin with --rather than the hand-wringing about American citizens arrested in the United States-- I think the decision is exactly right.
The decision can be found here.
As I find time this week, I'm going to try to look at the recent decision regarding California's Prop 8, and the issue of same-sex marriage generally.
This first post deals with nothing more than the basics of the decision itself. Part II will look at the stronger arguments against the decision, and part III will look at the issue of same-sex marriage in general, making the argument that Prop 8 and measures like it should be held as Constitutionally impermissible instances of gender discrimination.
So, this post is about 2 months, or 10 years too late, as will be explained. On 12.31.11, President Obama signed into law the National Defense Authorization Act. While there is a good deal to be gravely concerned about in the NDAA, much of the commentary focused on components of the NDAA which would supposedly "allow the military to indefinitely detain terror suspects, including
American citizens arrested in the United States, without charge."
The NDAA did no such thing.
