Amicus Curiae Brief — Kiobel v. Royal Dutch Petroleum Co.

RECO No. 10-1491 Suprema Cour US.

eer eri | JUN 1 3 2012

OFFICE CLERK

Supreme Court of the Wniten States

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ESTHER KIOBEL, ET AL.,

Petitioners,

—YV,.—

ROYAL DUTCH PETROLEUM CoO., ET AL.,

Respondents.

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ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF FORMER UNITED STATES DIPLOMATS

DIEGO ASENCIO, HARRIET BABBITT, HARRY BARNES,

J.D. BINDENAGEL, JACK BINNS, JAMES BISHOP,

WILLIAM BREER, KENNETH BRILL, JAMES BULLOCK,

W. HODDING CARTER III, GOODWIN COOKE,

PATRICIA DERIAN, F. ALLEN “TEX” HARRIS,

WILLIAM HARROP, ALLEN HOLMES, MARILYN MCAFEE,

THOMAS MCNAMARA, ARTHUR MUDGE,

JAMES O’BRIEN, THOMAS PICKERING,

EDWARD STREATOR, ALEXANDER WATSON

AND ROBERT WHITE AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

DOUGLASS CASSEL LEO P. CUNNINGHAM

Counsel of Record LEE ANNE V. MULHOLLAND

2142 Eck Hall of Law CHARLENE KOSKI

Notre Dame Law School WILSON SONSINI GOODRICH

Notre Dame, Indiana 46556 & ROSATI

(574) 631-7895 650 Page Mill Road

Doug.Cassel@nd.edu Palo Alto, California 94304

(650) 493-9300

wsgr@wsgr.com

Attorneys for Amici Curiae -

Law Liprar,

Soyer ee were:

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TABLE OF CONTENTS

INTEREST OF AMICI CURIAE............. 1

SUMMARY OF ARGUMENT ................ 6

P,P ETE TTT TTT TT POT TT eT TTT Tee 10

I. LAWSUITS CHALLENGING

GROSS VIOLATIONS OF HUMAN

RIGHTS COMMITTED OVERSEAS

ARE SOMETIMES IN AMERICAN

FOREIGN POLICY INTERESTS

AND SOMETIMES NOT, AND

SHOULD BE ALLOWED ON

A CASE-BY-CASE BASIS........... 10

Il. EVEN WHERE FOREIGN POLICY

OBJECTIONS ARISE, THEY CAN

SOMETIMES BE MANAGED

BY NARROWING THE ISSUES

WITHOUT DISMISSING AN

ENTIRE HUMAN RIGHTS CASE... 15

av avdivctcendoneedaseeencsessies 18

ll

TABLE OF AUTHORITIES

Cases

Doe v. Exxon Mobil Corp., 393 F. Supp. 2d

es Se ES ob oc cduesnckaniesasenece

Doe v. Qi, 349 F. Supp. 2d 1258

SS cea caa da caaenecenduanen

Filartiga v. Pena-Irala, 630 F.2d 876

nn coo eee euaeawe aan

Kadic v. Karadzic, 70 F.3d 232

As eda edad owe ekane bees

Nat'l Coalition Gov't of Union of Burma

v. Unocal, Inc., 176 F.R.D. 329

Se Ss MN Gs cc edanedasetuasessa buen

Statutes

ee ns Oe EE... oss a sec nemelbeu anus

ee ee

Miscellaneous

Hillary Rodham Clinton, Remarks on

the Human Rights Agenda for the

21st Century, Georgetown University

(Dec. 14, 2009), available at

http://www.state.gov/secretary/rm/

BOGGa/ 13/1 SSES4. NGM... . 2 ccc cece Ky

Statement on Signing the Torture Victim

Protection Act of 1991, 28 Weekly

Comp. Pres. Doc. 465, 466

ed ee eben en

PAGE

12

10

INTEREST OF AMICI CURIAE'

Amici curiae, former United States diplomats

and State Department officials, submit this brief

in support of two propositions. First, lawsuits in

United States courts, seeking redress for gross

violations of human rights committed abroad, are

sometimes consistent with American foreign policy

and sometimes not. Second, rather than reject all

such suits for fear of adverse foreign policy

impacts, courts should consult the Executive

Branch for its views on a case-by-case basis and, if

necessary, avoid adverse impacts by narrowing

the claims.

Amici are the following former United States

diplomats and State Department officials:

Diego C. Asencio served as Ambassador to

Colombia from 1977 to 1980, Assistant Secretary

of State for Consular Affairs from 1980 to 1983,

Ambassador to Brazil from 1983 to 1986, and

Chairman of the Commission for the Study of

International Migration and Cooperative

Economic Development from 1987 to 1989.

Harriet C. Babbitt served as Ambassador and

Permanent Representative of the United States to

the Organization of American States from 1993 to

1997, and as Deputy Administrator of the United

States Agency for International Development from

1997 to 2001.

' The parties in the petitions have consented to the fil-

ing of this brief. Their letters are on file with the Clerk of

this Court. Pursuant to Rule 37.6, amici state that no person

or entity other than the amici curiae or their counsel of

record has made a monetary contribution to the preparation

or submission of this brief.

2

Harry G. Barnes, Jr., served as Ambassador to

Romania from 1974 to 1977, Director General of

the Foreign Service and Director of Personnel in

the Department of State from 1977 to 1981,

Ambassador to India from 1981 to 1985 and

Ambassador to Chile from 1985 to 1988.

J.D. Bindenagel was Ambassador and Special

Envoy for Holocaust issues from 1999 to 2002 and

U.S. Special Negotiator for Conflict Diamonds

from 2002 to 2003. During his 28-year career as a

Foreign Service Officer he served in Asia and in

Europe.

Jack Binns was Ambassador to Honduras from

1980 to 1981 and Deputy Chief of Mission in

Spain and Costa Rica. During his twenty-five

years in the Foreign Service, he served throughout

Latin America and Western Europe.

James Bishop was Deputy Assistant Secretary of

State for Africa from 1981 to 1987 and Principal

Deputy Assistant Secretary of State for Human

Rights and Humanitarian Affairs from 1991 to

1993. During his 33 years as a U.S. Foreign

Service Officer, he also served as Ambassador to

Niger from 1979 to 1981, Ambassador to Liberia

from 1987 to 1990 and Ambassador to Somalia

from 1990 to 1991.

William Breer was a career Foreign Service

Officer for 35 years, retiring with the rank of

Minister Counselor. His posts included service as

Deputy Chief of Mission in the United States

Embassy to Japan and as a senior member of the

Policy Planning staff.

3

Kenneth Brill served as acting-Ambassador to

India from 1993 to 1994, Ambassador to Cyprus

from 1996 to 1999, and Ambassador to the

International Atomic Energy Agency and to the

United Nations Office in Vienna from 2001 to

2004. Among other Foreign Service career posts,

he served as Executive Secretary of the

Department of State from 1994 to 1996, and act-

ing-Assistant Secretary and Principal Deputy

Assistant Secretary of State for the Bureau of

Oceans and International Environmental and

Scientific Affairs from 1999 to 2001. He also

served as founding Director of the U.S. National

Counterproliferation Center, in the Office of the

Director of National Intelligence, from 2005 to

2010.

James L. Bullock is Minister Counselor, retired.

His final post was as Minister Counselor for

Public Affairs at the U.S. Embassy in Paris from

2006 to 2009. Among other posts in his 30-year

Foreign Service career, he served in Embassy sec-

tion head assignments in several Arab world capi-

tals and as press attaché at the U.S. Embassy in

Moscow.

W. Hodding Carter III was Assistant Secretary

of State for Public Affairs from 1977 to 1980.

Goodwin Cooke was Ambassador to the Central

African Republic from 1978 to 1980. His twenty-

five year Foreign Service career also included

postings in Asia, Europe, Canada and elsewhere

in Africa.

Patricia Derian was Assistant Secretary of State

for Human Rights and Humanitarian Affairs from

1977 to 1981.

4

F. Allen “Tex” Harris retired after serving with

the Department of State for thirty-five years,

including Foreign Service posts in Argentina,

Australia, South Africa and Venezuela. He is a

past President of the American Foreign Service

Association.

William C. Harrop served as Ambassador to

Guinea from 1975 to 1977, Deputy Assistant

Secretary of State for Africa from 1977 to 1980,

Ambassador to Kenya from 1980 to 19838,

Inspector General of the Department of State and

the Foreign Service from 1983 to 1987,

Ambassador to Zaire from 1987 to 1991, and

Ambassador to Israel from 1991 to 1993.

Allen Holmes served as Ambassador to Portugal

from 1982 to 1985, Assistant Secretary of State for

Political-Military Affairs from 1985 to 1989, and

Assistant Secretary of Defense for Special

Operations and Low Intensity Conflict from 1993

to 1999.

Marilyn McAfee was a career foreign service offi-

cer from 1968 to 1998. She served as Ambassador

to Guatemala from 1993 to 1996. Other postings

included Nicaragua, Iran, Washington, Costa

Rica, Venezuela, Chile and Bolivia, where she was

Deputy Chief of Mission from 1989 to 1992. In

1997 she was designated Assistant Inspector

General for Inspections, and subsequently Acting

Deputy Inspector General of the Department of

State.

5

Thomas McNamara was Assistant Secretary of

State for Political-Military Affairs from 1994 to

1998. Among other senior posts in his Foreign

Service Career, he served as Ambassador to

Colombia from 1988 to 1991 and as Ambassador-

at-large for Counterterrorism.

Artunur Mudge served as United States Agency

for International Development Assistant General

Counsel from 1967 to 1969, USAID Mission

Director in Guyana from 1974 to 1976, USAID

Mission Director in Nicaragua from 1976 to 1978,

and .USAID Mission Director in Sudan from 1980

to 1983.

James O’Brien was Special Envoy for the

Balkans, Principal Deputy Director for Policy and

Planning at the State Department, and Attorney

Adviser at the State Department from 1989 -

2001.

Thomas R. Pickering was Under Secretary of

State for Political Affairs from 1997 to 2001. He

also served as Ambassador to Jordan from 1974 to

1978, Assistant Secretary of State for Oceans,

Environment and Science from 1978 to 1981,

Ambassador to Nigeria from 1981 to 1983,

Ambassador to El Salvador from 1983 to 1985,

Ambassador to Israel from 1985 to 1988,

Ambassador and Representative to the United

Nations from 1989 to 1992, Ambassador to India

from 1992 to 1993, and Ambassador to the

Russian Federation from 1993 to 1996.

Edward Streator was Ambassador to the

Organization for Economic Cooperation and

Development from 1984 to 1987. Among other

posts as a Foreign Service Officer, he served as

6

Deputy Chief of Mission in the United States

Embassy to NATO from 1975 to 1977 and in the

United States Embassy to the United Kingdom

from 1977 to 1984.

Alexander F. Watson served as Ambassador to

Peru from 1986 to 1989, Ambassador and Deputy

Permanent Representative to the United Nations

from 1989 to 1993, and Assistant Secretary of

State for Western Hemisphere Affairs from 1993

to 1996.

Robert White served as Ambassador to Paraguay

in 1977 to 1980 and Ambassador to El Salvador in

1980 to 1981. Among other posts during his 25-

year career as a Foreign Service Officer, he also

served as Latin American Director of the Peace

Corps and as Deputy Permanent Representative

to the Organization of American States.

As former diplomats and State Department offi-

cials with collectively broad and diverse experi-

ence, amici are uniquely suited to comment on

whether lawsuits in the United. States seeking

redress for overseas human rights violations are,

by definition, inconsistent with American foreign

policy interests, or whether they are instead, in

many cases, helpful tools to implement our long-

standing foreign policy commitment to human

rights worldwide.

SUMMARY OF ARGUMENT

Amici curiae are former United States diplomats

and State Department officials. Amici submit this

brief in support of two propositions. First, 'aw-

suits in United States courts, seeking redress for

7

gross violations of human rights committed

abroad, are sometimes consistent with American

foreign policy and sometimes not. Second, rather

than reject all such suits for fear of adverse for-

eign policy impacts, courts can consult the

Executive Branch for its views and make decisions

on a case-by-case basis. Where appropriate, courts

can avoid adverse foreign policy impacts by nar-

rowing the scope of the litigation.

Amici understand that on March 5, 2012, the

Court restored this case to the calendar for rear-

gument on the following question:

“Whether and under what circumstances the

Alien Tort Statute, 28 U.S.C. § 1350, allows

courts to recognize a cause of action for viola-

tions of the law of nations occurring within

the territory of a sovereign other than the

United States.”

Amici take no position on the legal question of

whether the Alien Tort Statute (“Statute” or

“ATS”) should be so interpreted.” We address only

a narrow question within our professional exper-

tise, namely whether suits brought under the

Statute in United States courts for gross viola-

tions of human rights committed on the territory

of a foreign sovereign are necessarily inconsistent

with American foreign policy interests. We

address this question because other amici in this

case argue that such litigation “interferes with

2 _ Nor do amici express any view on the questions posed

in the original argument in this case, concerning whether

corporations, as opposed to natural persons, can be sued

under the Alien Tort Statute.

8

U.S. foreign relations.”* Based on our collective

experience, however, we believe that whether such

suits hinder or promote American foreign policy

can only be determined on a case-by-case basis.

Any such lawsuit may affect potentially conflict-

ing foreign policy interests. On the one hand, suits

seeking redress for gross violations of human

rights committed abroad may often serve to sup-

port America’s longstanding foreign policy com-

mitment to worldwide respect for human rights.

On the other hand, suits alleging violations com-

mitted on the territory of a foreign sovereign may

sometimes become irritants in bilateral relations

with that sovereign and in some cases might not

be the best way to defend our interest in human

rights or might interfere or impact adversely on

other, higher priority foreign policy issues of con-

cern to the United States. Striking a balance

between these potentially conflicting sets of inter-

ests is necessarily fact-and context-dependent. It

can only be done on a case-by-case basis.

Moreover, striking that balance is a task within

the unique expertise and responsibility of the

Executive Branch. Courts are not designed or

equipped to make foreign policy judgments. In all

cases where serious questions arise of potential

impact on foreign policy under doctrines such as

political questions or act of state, courts are well-

advised to seek and rely on the well-reasoned

views of the Executive.

3 E.g., Brief of Amici Curiae BP America at 8, Kiobel v.

Royal Dutch Petroleum Co., 132 S. Ct. 1738 (2012) (No. 10-

1491), 2012 WL 392536 at *8 (noting concern that “ATS liti-

gation involving conduct in other countries interferes with U.S.

foreign relations”).

9

Historically the Executive has favored some

suits, and opposed others, depending on their

impact on foreign policy in the circumstances. In

some cases the answer is not simply whether or

not to allow a case to proceed, but rather how to

manage the litigation so as to mitigate or avoid

adverse foreign policy impacts. In such cases

courts can and have used the tools at their dispos-

al to limit the claims, parties, or scope of discov-

ery, thereby allowing vindication of human rights

to some degree while minimizing negative foreign

policy impacts.

To the extent the Court takes foreign policy

impacts into account in deciding whether to allow

suits for human rights violations overseas under

the Statute, our experience counsels to avoid

extremes. It would be imprudent to allow all cases

challenging overseas human rights violations to

proceed, no matter the foreign policy conse-

quences. But it would be unduly restrictive to

allow none to proceed, thereby depriving our coun-

try of an often valuable tool in support of our for-

eign policy commitment to worldwide respect for

human rights. The approach most consistent with

our foreign policy commitments is to make these

determinations on a case-by-case basis, following

consultation with the Executive, and where appro-

priate using judicial tools to manage the scope and

hence the foreign policy impact of the litigation.

10

ARGUMENT

Il. LAWSUITS CHALLENGING GROSS VIO-

LATIONS OF HUMAN RIGHTS COMMIT-

TED OVERSEAS ARE SOMETIMES IN

AMERICAN FOREIGN POLICY INTER-

ESTS AND SOMETIMES NOT, AND

SHOULD BE ALLOWED ON A CASE-BY-

CASE BASIS.

America’s foreign policy commitment to respect

for human rights worldwide is longstanding and

bipartisan. United States law declares that “a

principal goal of the foreign policy of the United

States shall be to promote the increased obser-

vance of internationally recognized human rights

by all countries.”* In 1992 President Bush reiter-

ated “our commitment to ensuring that human

rights are respected everywhere.”® In 2009

Secretary of State Clinton reaffirmed that our

“commitment to human rights starts with univer-

sal standards and with holding everyone account-

able to those standards.”® Similar statements have

been made by Administrations of both parties over

the last four decades.

This foreign policy commitment to human rights

worldwide has often led the Executive either to

support, or not to oppose, suits in United States

4° 92: U.S.C. § 2304(a)(1).

5

Statement on Signing the Torture Victim Protection Act

of 1991, 28 Weekly Comp. Pres. Doc. 465, 466 (Mar. 12, 1992).

. Hillary Rodham Clinton, Remarks on the Human Rights

Agenda for the 21st Century, Georgetown University (Dec. 14,

2009), available at http://www.state.gov/secretary/rm/2009a/

12/133534.htm.

1l

courts seeking redress for gross violations of

human rights allegedly committed on the territo-

ries of foreign sovereigns. For example, in the very

first human rights case under the ATS in 1980,’

the State Department submitted a brief in support

of a Paraguayan victim’s suit alleging torture and

extrajudicial execution committed by a

Paraguayan official on Paraguayan territory. With

respect to the potential foreign policy impact, the

State Department advised that where there is

international consensus on a protected human

right and on the scope of protection,

there is little danger that judicial enforcement

will impair our foreign policy efforts. To the

contrary, a refusal to recognize a private

cause of action in these circumstances might

seriously damage the credibility of our

nation’s commitment to the protection of

human rights.*®

Similarly, in a 1995 ruling allowing two ATS

suits to proceed against Bosnian Serb political

leader Radovan Karadzic, the U.S. Court of

Appeals for the Second Circuit noted that the

plaintiffs in one suit had asked the State

Department for its views. “Far from intervening in

the case to urge rejection of the suit on the ground

that it presented political questions,” the Court

observed, “the Department responded with a letter

indicating that Karadzic was not immune from

7 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 19860).

8 Memorandum for the United States as Amicus Curiae at

22-23, Filartiga v. Pena Irala, 630 F.2d 876 (2d Cir. 1980) (No.

79-6090), 19 1.L.M. 585, 604 (1980).

12

suit as an invitee of the United Nations.”? Making

clear that American foreign policy supported the

suit, the State Department added,

We share your repulsion at the sexual

assaults and other war crimes that have been

reported as part of the policy of ethnic cleans-

ing in Bosnia-Herzegovina. . . . This informa-

tion is being investigated by a United Nations

Commission of Experts, which was established

at U.S. initiative.'®

Responding to an inquiry from the court in the

companion case, the Solicitor General and the

State Department Legal Advisor jointly answered:

“Although there might be instances in which fed-

eral courts are asked to issue rulings under the

Alien Tort Statute ... that might raise a political

question, this is not one of them.”!!

Again, in 1997 the State Department advised a

district court in an ATS suit alleging gross viola-

tions of human rights in Burma that “at this time

adjudicetion of the claims based on allegations of

torture and slavery would not prejudice or impede

the conduct of U.S. foreign relations with the cur-

rent government of Burma.”!”

In 2010, when the United States recognized

Somalia as a sovereign State, but did not recog-

nize any entity as its government, the Executive

9 Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995).

10° Id. at 250 n.10.

i Id. at 250.

12

Nati Coalition Gov't of Union of Burma v. Unocal, Inc.,

176 F.R.D. 329, 335, 362 (C.D. Cal. 1997).

13

submitted an amicus brief to this Court opposing

dismissal of an ATS suit for gross violations of

human rights in Somalia on grounds of statutory

immunity.'* In specifying the “[iJnterest of the

United States,” the Brief stated in part, “The

United States condemns grave human rights abus-

es of the kind alleged in the complaint in this

case, and it has a strong foreign policy interest in

promoting the protection of human rights.”"*

Most recently, the Executive submitted an ami-

cus brief in support of plaintiffs in the case at bar,

an ATS suit alleging gross violations of human

rights in Nigeria. The brief identified the “{i]nter-

est of the United States” as follows: “The United

States has an interest in the proper application of

the ATS because such actions can have implica-

tions for the Nation’s foreign and commercial rela-

tions and for the enforcement of international

law.”?®

These diverse cases—involving repressive

regimes in Latin America and Asia, war crimes in

Bosnia and Somalia, and military assaults on

civilians in Nigeria—illustrate the variety of rea-

sons why suits in United States courts for gross

violations of human rights allegedly committed on

the territory of a foreign sovereign can be in the

interests of American foreign policy. Over more

13 Brief for the United States as Amicus Curiae at 1,

Samantar v. Yousuf, 130 S. Ct. 1499 (No. 08-1555), 2010 WL

342031 at *1.

-.

15

Brief for the United States as Amicus Curiae at 1,

Kiobel v. Royal Dutch Petroleum Co., 132 S. Ct. 1738 (No. 10-

1491), 2011 WL 6425363 at *1.

14

than three decades, the unifying theme of case-by-

case Executive support for such lawsuits has been

our foreign policy commitment to respect for

human rights worldwide.

Important as that commitment may be, howev-

er, it does not always carry the day in the face of

such competing and weighty foreign policy con-

cerns as our relationship with China. In 2002, for

example, the State Department expressed con-

cerns that an ATS suit by Falun Gong practition-

ers against Chinese officials was “not the best way

for the United States to advance the cause for

human rights in China.” The State Department

advised the court: “Practical considerations, when

coupled with the potentially serious adverse for-

eign policy consequences that such litigation can

generate, would in our view argue in favor of find-

ing the suits non-justiciable.”'®

Without taking a position on the foreign policy

advisability of any particular case, amici draw the

general lesson from their collective experience

that lawsuits in our courts for gross violations of

human rights committed on the territory of for-

eign nations are sometimes in the foreign policy

interests of the United States, and sometimes not,

and that the determination must be made on a

case-by-case basis.

Moreover, in order to make these determina-

tions under such existing doctrines as political

questions and acts of state, the courts do and

appropriately should call on the expertise of the

16 Doe v. Qi, 349 F. Supp. 2d 1258, 1271 (N.D. Cal.

2004) (alteration in original) (quoting Statement of Interest

of the United States at 7-8, Sept. 27, 2002).

15

Executive branch, to whose well-reasoned views

the judiciary should and normally does defer on

questions of foreign policy.

For these reasons, amici suggest that foreign

policy concerns do not consistently counsel against

allowing suits in United States courts for human

rights violations committed overseas. On the con-

trary, the longstanding American foreign policy

commitment to respect for human rights world-

wide argues for allowing such suits on a case-by-

case basis, after consultation with the Executive

Branch.

Il. EVEN WHERE FOREIGN POLICY

OBJECTIONS ARISE, THEY CAN SOME-

TIMES BE MANAGED BY NARROWING

THE ISSUES WITHOUT DISMISSING AN

ENTIRE HUMAN RIGHTS CASE.

In some cases, foreign policy objections may

relate only to particular claims or particular

defendants. An example is provided by an ATS

suit against several oil companies, including one

partially owned by the Indonesian government, for

gross violations of human rights allegedly commit-

ted in Indonesia by their security force contractor,

namely the Indonesian military. In a 2002

Statement of Interest and a 2005 follow-up letter

to the court, the State Department gave nuanced

advice. As summarized by the court, the State

Department:

“believes that adjudication of this lawsuit at

this time would in fact risk a potentially seri-

ous adverse impact on significant interests of

the United States, including interests related

16

directly to the on-going struggle against inter-

national terrorism.” The State Department

observed, however, that its assessment was

“necessarily predictive and contingent” on how

the case proceeded, including the intrusive-

ness of discovery and the extent to which the

case required “judicial pronouncements on the

official actions of the [Government of

Indonesia] with respect to its military activi-

ties in Aceh.”"’

The court responded by narrowing the claims,

parties and scope of discovery. To avoid embar-

rassment to the Indonesian government, the court

dismissed the international law claims of genocide

and crimes against humanity, allowing only the

common law tort claims to proceed. The court also

dismissed the one company partially owned by the

Indonesian government, allowing the suit to pro-

ceed only against private companies. Firally, the

court ordered, “Discovery should be conducted in

such a manner so as to avoid intrusion into

Indonesian sovereignty. To this end, there will be

firm control over any discovery conducted by

plaintiffs.”'®

Without venturing an opinion on the rulings in

this individual case, amici suggest that they illus-

trate the tools of judicial management available to

courts in cases where foreign policy objections

17 Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 22 (D.

D.C. 2005) (alteration in original) (emphasis omitted) (quoting

Statement of Interest of the U.S. State Dept., July 29, 2002).

(The case has a complicated subsequent history, with multiple

reported decisions.)

18 Exxon, 393 F. Supp. 2d at 29.

17

may relate only to a part of the case rather than to

the whole. Such a narrowing approach can allow

partial vindication of the United States foreign

policy interest in promoting respect for human

rights, while accommodating competing foreign

policy concerns.

The possibility of narrowing the issues in appro-

priate cases provides an additional reason why

potential foreign policy concerns should not lead

to the wholesale rejection of suits in our courts for

gross violations of human rights allegedly commit-

ted in other countries.

18

CONCLUSION

For the foregoing reasons, amici respectfully

suggest that foreign policy concerns do not sup-

port a wholesale rejection of suits in United States

courts for gross violations of human rights

allegedly committed in other countries. On the

contrary, the longstanding American foreign poli-

cy commitment to respect for human rights world-

wide, the historic practice of the Executive

Branch, and the judicial management tools avail-

able to courts, all counsel in favor of allowing such

suits on a case-by-case basis, following consulta-

tion with the Executive Branch.

Respectfully submitted,

DOUGLASS CASSEL

Counsel of Record

2142 Eck Hall of Law

Notre Dame Law School

Notre Dame, Indiana 46556

(574) 631-7895

Doug.Cassel@nd.edu

LEO P. CUNNINGHAM

LEE ANNE V. MULHOLLAND

CHARLENE KOSKI

WILSON SONSINI GOODRICH

& ROSATI

650 Page Mill Road

Palo Alto, California 94304

(650) 493-9300

wsgr@wsgr.com

Attorneys for Amici Curiae