On August 30, the Eleventh Circuit decisively dismissed a classic lawfare lawsuit -- an Alien Tort Statute suit brought against the former President and former Defense Minister of Bolivia (Gonzalo Sanchez de Lozada and Jose Carlos Sanchez Berzain) in connection with military and police actions they had ordered to quell civil unrest in La Paz, Bolivia in 2003. In a unanimous and somewhat impatient opinion by Judge James Edmondson, the Court concluded that the plaintiffs had made only “bare assertions” and “legal conclusions” about the conduct of Bolivia’s leaders, rather than the specific factual allegations required by the Supreme Court in Ashcroft v. Iqbal. Even if the plaintiffs' assertions were accepted as sufficiently pled, they still did not provide evidence of extrajudicial killings or crimes against humanity under international law.
The decision is noteworthy in two respects. First, the Court shows considerable sensitivity (if not irritation) about being asked to judge security actions taken by foreign leaders, especially in this case where the leaders were “faced with thousands of people taking to the streets in opposition.” Repeatedly invoking the Supreme Court’s call for caution in Sosa, the Court emphasizes that the ATS is “no license for judicial innovation” and that “judicial restraint is demanded.” Moreover, the Court observes that “We know and worry about the foreign policy implications of civil actions in federal courts against the leaders (even the former ones) of nations. And we accept that we must exercise particular caution when considering a claim that a former head of state acted unlawfully in governing his country’s own citizens.”
Second, the Court also emphasizes that Iqbal requires not only specific factual allegations of misconduct but allegations of misconduct by the particular defendants. “We do not accept that, even if some soldiers or policemen committed wrongful acts, present international law embraces strict liability akin to respondeat superior for national leaders at the top of the long chain of command in a case like this one.” This requirement for allegations of misconduct by the particular defendants may make it harder for plaintiffs to file ATS actions (at least in the Eleventh Circuit) against corporate officers and directors for aiding and abetting international human rights violations.
The opinion is something of a rebuff to plaintiffs' counsel,the Center for Constitutional Rights, which has filed dozens of ATS suits against current and former foreign and U.S. government officials for security actions ordered in their official capacities. Jack Goldsmith was co-counsel for the defendants. A bipartisan group of my predecessor State Department Legal Advisers filed an amicus brief in the district court arguing that there is no norm of international law prohibiting the disproportionate use of military or police force to restore public order.