Pirates of the Corporation

IN THE SPRING of 2003, Terry Collingsworth was holed up in a Bangkok hotel, meeting with a group of Burmese villagers. Terrified by horrors they’d witnessed in Burma, the villagers had contacted local human rights activists, who in turn had gone to Collingsworth, executive director of a small Washington nonprofit called the International Labor Rights Fund, for salvation. Now, almost 10 years later, over the course of days in the hotel, Collingsworth was still sifting through the tales of abuse. The group had claimed that the oil company Unocal had hired Burmese army troops to secure the construction of a pipeline through the country, and that the troops had forced people living near the pipeline into slave labor. One woman was allegedly shoved into a fire holding her baby. Collingsworth, a wiry, clean-cut lawyer who speaks in rat-a-tat phrases and travels incessantly to meet with clients all over the developing world, was affected by their stories but not intimidated. He himself had witnessed and survived many desperate situations, like the time two years earlier, while visiting potential clients in Aceh, Indonesia, he made it through 17 army checkpoints before driving right into a gunfight between rebels and the army.

Collingsworth had carried the stories of the Burmese villagers halfway around the globe and into the United States justice system. There he had applied to their assertions a peculiar and potentially powerful law, the Alien Tort Claims Act (ATCA). In 1789, Congress passed the statute—daring in scope for a young nation—that said violations of international law, the “law of nations,” could be heard by judges in the United States. Scholars speculate that the ATCA’s intent was to protect American sailors from being press-ganged by foreign ships or to prevent pirates from finding safe haven in American waters. As those concerns waned, the law went dormant and stayed nearly forgotten for two centuries.

Then, in the late 1970s and early 1980s, lawyers began using the ATCA to sue foreign human rights abusers on behalf of not only Americans but also injured citizens of foreign countries with weak judiciaries—a radical notion in the age of Abu Ghraib. More recently, these attorneys have dared go after not just individuals but corporations, filing ATCA cases seeking to hold American companies responsible for abetting the worst crimes overseas—like torture, forced labor, and genocide.

So far, lawyers have filed more than two dozen such cases. One charges Coca-Cola with abetting the murder of trade unionists in Colombia; another alleges that a subsidiary of ChevronTexaco helped Nigerian soldiers who shot protesters in the oil-rich Niger Delta; another, filed by Collingsworth for clients in Aceh, charges ExxonMobil with providing infrastructure for a killer squad of the Indonesian military, even supplying the army with earthmovers to dig mass graves. Still another, filed by survivors of 9/11, claims that seven international banks abetted terrorism. And, in the boldest cases filed so far, Iraqis and Afghans allegedly tortured at U.S. prison camps have sued not only several military contractors but Defense Secretary Donald Rumsfeld as well.

No plaintiff has yet won an ATCA case against a company, but Collingsworth has persisted, pitting his small staff against the nation’s white- shoe firms and weathering appeal after appeal. (“At no point did I feel their 180 lawyers gave them an advantage,” he says staunchly.) In December, he facilitated the first legal settlement under the ATCA by a multinational company—a payout by Unocal to the Burmese villagers. After the Supreme Court determined that the law could indeed be used against companies, Unocal agreed to pay the villagers a sum in the tens of millions.

Elliot Schrage, a former senior vice president at Gap who is now at the Council on Foreign Relations, believes this was a turning point. “The Unocal settlement legitimates the idea that [ATCA] is a real business risk,” he says. So serious a risk, in fact, that big business and the White House have gone on the offensive to undermine it.

Multinationals have grouped together to file briefs seeking to scuttle ATCA cases, and the National Foreign Trade Council, an organization of corporate giants, has been touting a study warning that ATCA suits could “seriously damage the world economy.” Another study cautions that the threat of ATCA suits could discourage companies from rebuilding countries like war-torn Iraq. Some companies have considered drafting legislation that could kill or seriously limit the ATCA—legislation that could be pushed through Congress with little fanfare. Yet Collingsworth thinks there’s still time to win settlements or decisions in other cases. “The business community,” he says, “doesn’t yet have a champion to stand up and say they’re repealing a statute that prohibits slavery [and] dates back to the nation’s founding.”

The White House has launched its own backdoor strike on the law, filing briefs and letters in support of companies accused in ATCA cases. The administration argues that the suits will damage America’s relations with other countries and impede the war on terror. In one letter obtained by Mother Jones, the State Department’s legal adviser, William H. Taft IV, claimed that an ATCA suit against mining giant Rio Tinto’s operations in Papua New Guinea would damage “an important United States foreign policy objective”—evidently U.S. relations with that obscure island nation have become a critical diplomatic matter. Other corporate defendants are now requesting that the State Department intervene with letters in their favor.

As Schrage has put it, “The message of these actions appears to be that the Bush administration opposes enforcement of international law standards against multinational corporations.” But the White House may be motivated by something more than unilateralism. The ATCA “is a real problem for this government,” notes Sarah Cleveland, an ATCA expert at the University of Texas School of Law. For, as some Iraqis and Afghans have begun to realize, a law that holds corporations responsible for torture and abuse just might do the same for government officials.