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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0700%3A077

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 569 U.S. 108

## Text

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.

oe ae

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:
[IMC 3. . Cre a

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0700%3A077. Public record. Not legal advice.