Justice Advocates Challenge Power of Multinational Corporations

March 8, 2014 by Inter Press Service
by Bryant Harris

WASHINGTON - Advocacy and accountability groups are urging the U.S. Congress to enact new mechanisms that would allow it to hold multinational corporations accountable for rights infringements abroad.

At a congressional briefing on Thursday, legal experts and advocates from Amnesty International, the International Corporate Accountability Roundtable (ICAR) and Earthrights International proposed measures Congress could take to ameliorate corporate abuses abroad.

“International law itself requires a country to provide a remedy to individuals who are harmed by citizens,” ICAR’s Gwynne Skinner, an associate professor of law at Willamette University College of Law, told IPS.

“So we’re failing if we’re not providing any remedies to victims who are hurt by our citizens and of course corporations are citizens now, right?” (Skinner was referring to a 2010 Supreme Court decision that allowed corporations to make unlimited political donations on the grounds that they are eligible for the same constitutional rights as individuals.)

Earthrights International and other legal advocacy groups have partnered to create a report card indexing the track record of each U.S. lawmaker on corporate accountability. Marco Simons, Earthrights International’s legal director, noted Congress’s lacklustre record on the issue.

“Unfortunately, so far the results have not been very pretty,” Simons said. “The average score in the Senate was 26.6 percent and 44.2 percent in the House. Twelve representatives and 45 senators received a score of zero.”

Representatives from Amnesty International called for increased transparency in corporate lobbying efforts.
“We understand that corporate lobbying is necessary, but at the same time there should be more transparency in that process in order to ensure justice.” —Seema Joshi, Amnesty Intl

“We are looking at a proposal to deftly deal with the corporate-government relationship,” said Seema Joshi, Amnesty International’s head of business and human rights. “We understand that corporate lobbying is necessary, but at the same time there should be more transparency in that process in order to ensure justice.”

Post-Kiobel

In particular, advocates are calling for reforms to the Alien Tort Statute (ATS), a unique law that allows foreign nationals to sue human rights abusers in U.S. courts. Last year, the Supreme Court significantly limited the scope of the statute against multinational corporations in a case known as Kiobel v. Royal Dutch Petroleum.

"Shell [a subsidiary of Royal Dutch Petroleum] and other multinational corporations are free to do business in the United States, and free to commit human rights abuses in other countries around the world, and not have any fear that the victims of those abuses would be able to gain access to a U.S. federal court to obtain justice for those abuses,” Simons said.

“This essentially contravenes the fundamental purpose of the Alien Tort Statute – to not provide protection in the United States for those who violate international law.”

In light of the Kiobel ruling, Earthrights and ICAR are calling on Congress to implement legislation that would explicitly allow victims to sue multinational corporations that operate in the United States for human rights abuses abroad, regardless of where in the world they’re based.

On Thursday, the panellists noted the difficulty in pursuing ATS cases against corporations irrespective of the Kiobel ruling, which often prompts plaintiffs to sue in state courts.

In Doe v. Unocal, another ATS case involving corporate complicity in the abuses of a military regime, Earthrights represented a client from Myanmar in the California court system after the case was thrown out of federal courts.

“Unocal and its partners contracted with the Burmese military regime to provide security and other services for their pipeline project,” Simons told IPS. “In the course of providing these services and, unfortunately very predictably, the Burmese soldiers conducted a series of human rights abuses, including widespread forced labour, torture, and killings.”

Another case, Al Shimari v. CACI, dealt with a private military contractor’s alleged use of torture in the interrogation of an Iraqi prisoner. After the federal courts dismissed that case, an appeal was likewise dismissed because of the precedent set by the Kiobel case.

Limited liability

In addition to ATS reform, ICAR’s Skinner proposed altering limited liability rules so parent corporations could be held liable for human rights abuses of smaller companies that they own.

“A parent company can have a wholly owned subsidiary – as shareholders, they own shares of that corporation – and then, of course, have no liability whatsoever except for the investment that they’ve made in that corporation,” Skinner said.

“Today what we see is this becoming a tool for large, transnational businesses to outsource the risk yet get all of the profit. So many very complex corporate organisations exist so that corporations have minimal risk but get these benefits.”

While some have argued that victims of human rights abuses should simply litigate in their own country, the Kiobel and Unocal cases indicate that many of the countries in question directly perpetrate the documented abuses themselves and have a weaker, more corrupt judicial system.

Skinner points to the relative strength of the U.S. judicial system as a reason why corporations are better off litigating in the United States rather than in developing countries.

She cites the lawsuit brought by Ecuadorians against Chevron, the U.S. oil company, for polluting the Lago Agrio region. This week, the judge ruled in favour of Chevron because of allegedly fraudulent evidence used by the prosecution.

“This kind of proves the point that corporations should actually want to be in front of United States courts,” Skinner told IPS.

“If you’re in front of a court in a country that’s not a developed country, you don’t know what you’re going to get. At least in the United States you’re going to get … a pretty fair trial. So isn’t it in a business’s interest to be in front of a U.S. court?”

Walling Ourselves Inside a Militarized-Police State

Wednesday, February 27, 2013 by TomDispatch.com
by Tom Engelhardt

It was, in a sense, so expectable, so leave-no-child-behind. I’m talking about the arming of American schools. Think of it as the next step in the militarization of this country, which follows all-too-logically from developments since September 11, 2001. In the wake of 9/11, police departments nationwide began to militarize in a big way, and the next thing you knew, the police were looking ever less like old-style neighborhood patrollers and ever more like mini-anti-terror armies. The billy club, the simple sidearm? So Old School. So retro.

When it came to weaponry for the new, twenty-first-century version of the police, it was a matter of letting the good times roll: Tasers, flash grenades, pepper spray, incendiary tear gas, Kevlar helmets, assault rifles, bomb-detection robots, armored vehicles and tanks, special-ops-style SWAT teams, drone mini-submarines, drone aircraft, you name it. Today, even school police are being armed with assault rifles. And with it all goes a paramilitary fashion craze that anyone who observed the police in the Occupy moment is most familiar with.

In addition, the U.S. military is now offloading billions of dollars worth of its surplus equipment, some of it assumedly used in places like Iraq and Afghanistan against armed insurgents, on police forces even in small towns nationwide. This includes M-16s, helmet-mounted infrared goggles, amphibious tanks, and helicopters. And now, the same up-armoring mentality is being brought to bear on a threat worse than terror: our children. Think of it as the reductio ad absurdum of the new national security state. First, they locked down the airports, then the capital, then the borders, and finally the schools. Now, we’re ready!

But the seldom-asked question is: ready for what? After all, with a few rare exceptions (including unpredictable lone wolf attacks like the attempted assassination of Congresswoman Gabrielle Giffords; the disgruntled software engineer who flew his plane into a building containing an IRS office in Austin, Texas, killing himself and an IRS manager; Major Nidal Hassan’s murderous rampage at Fort Hood, Texas; and the Newtown slaughter), just about all “terror” threats in the U.S. have essentially been FBI sting operations involving crews of “terrorists” who were, by themselves, incapable of planning their way out of the proverbial paper bag.

Imagine for a moment how much better off we might be today if the money that has, for more than a decade, poured into the militarization of the police had been plowed into American education or infrastructure or just about anything else. In that case, we might be prepared for something other than fighting phantoms and -- as Chase Madar, author of The Passion of Bradley Manning, points out in “The School Security America Doesn’t Need” -- handcuffing seven-year-olds. For the TV version of what’s happening in our schools in the post-Newtown moment, you would have to imagine “Homeland” populated by overarmed Muppets and Thomas the Tank (not the Tank Engine).

Obama takes Bush’s secrecy games one step further

BY GLENN GREENWALD - SALON.com
MONDAY, MAR 26, 2012

The ACLU is suing the Obama administration under the Freedom of Information Act (FOIA), seeking to force disclosure of the guidelines used by Obama officials to select which human beings (both U.S. citizens and foreign nationals) will have their lives ended by the CIA’s drone attacks (“In particular,” the group explains, the FOIA request “seeks to find out when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killing”). The Obama administration has not only refused to provide any of that information, but worse, the CIA is insisting to federal courts that it cannot even confirm or deny the existence of a drone program at all without seriously damaging national security; from the CIA’s brief in response to the ACLU lawsuit:

. . .

What makes this so appalling is not merely that the Obama administration demands the right to kill whomever it wants without having to account to anyone for its actions, choices or even claimed legal authorities, though that’s obviously bad enough (as I wrote when the ACLU lawsuit was commenced: “from a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed "legal and factual bases" for assassinating U.S. citizens without charges, trial or due process of any kind”). What makes it so much worse is how blatantly, insultingly false is its claim that it cannot confirm or deny the CIA drone program without damaging national security.

Numerous Obama officials — including the President himself and the CIA Director — have repeatedly boasted in public about this very program. Obama recently hailed the CIA drone program by claiming that “we are very careful in terms of how it’s been applied,” and added that it is “a targeted, focused effort at people who are on a list of active terrorists, who are trying to go in and harm Americans, hit American facilities, American bases and so on.” Obama has told playful jokes about the same drone program. Former CIA Director and current Defense Secretary Leon Panetta also likes to tell cute little jokes about CIA Predator drones, and then proclaimed in December that the drone program has “been very effective at undermining al Qaeda and their ability to plan those kinds of attacks.” Just two weeks ago, Attorney General Eric Holder gave a speechpurporting to legally justify these same drone attacks.

So Obama officials are eager to publicly tout the supposed benefits of the CIA’s drone programs in order to generate political gain for the President: to make him look like some sort of Tough, Brave Warrior single-handedly vanquishing Al Qaeda. The President himself boasts about how tightly controlled, precise and effective the CIA drones are. Everyone in the world knows the CIA has a drone program. It is openly discussed everywhere, certainly including the multiple Muslim countries where the drones routinely create piles of corpses, and by top U.S. Government officials themselves.

But then when it comes time to test the accuracy of their public claims by requesting the most basic information about what is done and how execution targets are selected, and when it comes time to ask courts to adjudicate its legality, then suddenly National Security imperatives prevent the government even from confirming or denying the existence of the program: the very same program they’ve been publicly boasting and joking about. As the ACLU’s Jameel Jaffer put it after Obama publicly defended the program: “At this point, the only consequence of pretending that it’s a secret program is that the courts don’t play a role in overseeing it” – that, and ensuring that any facts that contradict these public claims remain concealed.

This is why the U.S. Government’s fixation on secrecy — worse than ever under the Obama administration, as evidenced by its unprecedented war on whistleblowers — is so pernicious. It not only enables government officials to operate in the dark, which inevitably ensures vast (though undiscovered) abuses of power. Worse, it enables the government to aggressively propagandize the citizenry without challenge: Obama officials are free to make all sorts of claims about how great and targeted the drone program is and how it Keeps Us Safe™, while simultaneously suppressing any official evidence or information that would test those claims and/or contradict them (even as some evidence suggests these assurances are false).

Worse still, it literally removes our highest political officials from the rule of law. The sole purpose of these vast claims of secrecy around the drone program — the absurd notion that they cannot even confirm or deny its existence without harming National Security — is to block courts from reviewing the legality of what they’re doing, which is another way of saying: they have removed themselves from the rule of law. Even Bush DOJ lawyer Jack Goldsmith, a vociferous advocate of executive authority and secrecy powers, understands how abusive this is:

First, it is wrong . . . for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful).

Indeed, one of the worst abuses of the lawless Bush presidency was that Bush officials repeatedly invoked secrecy powers (the State Secret privilege) to shield their most controversial and lawless programs from judicial review: warrantless eavesdropping, rendition, and torture. One of the earliest alarms about what the Obama presidency would be was when the Obama DOJ told courts early in 2009 that it would continue to assert those same radical secrecy claims: thus telling courts that the very programs which candidate Obama long denounced as illegal were now such vital State Secrets that courts must not risk their disclosure by adjudicating their legality. Beyond Obama’s decree that the DOJ must not investigate Bush-era crimes, that was the instrument used by Obama to shield Bush’s criminal policies from judicial challenge: through Kafkaesque claims of secrecy whereby programs that everyone in the world knows exist were Too Secret even to let courts examine. In sum, there is only one place in the entire world where these policies of warrantless eavesdropping, rendition, torture, and CIA drones cannot be discussed: in American courts, when it’s time to review their legality and/or allow its victims to vindicate their legal rights.

Now, in this ACLU/FOIA case, the Obama administration is taking these warped secrecy games one step further. They boast publicly about the programs to lavish themselves with praise, only to turn around once they’re sued in court and insist that the programs are too secret even to acknowledge. So extreme is the fixation on secrecy from the "Most Transparent Administration Ever™" that they are routinely reduced to this type of self-parody; behold how they are insisting in response to a separate FOIA lawsuit from The New York Times that they cannot even confirm or deny the existence of the OLC memo which authorized the assassination of Anwar Awlaki — even though the NYT reported on its contents. More amazingly still, the Obama administration continues to insist that they cannot confirm or deny the memo’s existence even after Eric Holder talks about the memo in a Senate hearing.

This would be laughable if it were not so destructive. It results in the government’s most consequential actions being completely shielded not only from public scrutiny, but also from the rule of law. It enables the most powerful political officials to inculcate the public with claims about their actions while preventing any form of checks and suppressing any contrary information. It literally means that the Obama administration is able to conduct multiple secret wars around the world, ones conducted by drone attacks, the very existence of which they refuse to acknowledge. And it is yet another way the Obama presidency is cementing the worst abuses of the Bush presidency: the very same ones he so inspirationally vowed to reverse.

UPDATE: Just this weekend, The Washington Post published a lengthy, glowing profile of the anonymous CIA official who oversees the CIA drone program. We learned how the drone program has slain countless Al Qaeda leaders with such precision and force: the same program the Obama administration insists cannot be acknowledged without seriously harming national security. Given that claim, will the anonymous officials who enabled this hagiography by talking to the Post about this glorious official and all that the drone program has accomplished be prosecuted under espionage statutes? Yes, that question is rhetorical, and further highlights how severely secrecy powers are manipulated and exploited by this administration.