On Oct. 11, the Supreme Court heard arguments in Jesner v. Arab Bank. Jesner involves whether the Alien Tort Statute (ATS) allows federal courts to exercise jurisdiction over claims by aliens against corporations. As originally enacted in Section 9 of the Judiciary Act of 1789, the ATS provided that “the district courts ... shall ... have cognizance ...
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Jesner v. Arab Bank: The Supreme Court Should Not Miss the Opportunity to Clarify the “Touch and Concern” Test
In Kiobel v. Royal Dutch Petroleum, the Supreme Court held that the Alien Tort Statute (ATS) is presumed not to apply to conduct on the territory of another country unless the plaintiff’s claims “touch and concern” the United States with sufficient force to overcome that presumption. For the last four years, plaintiffs, defendants and courts have struggled to define the contours of the Supreme Court’s cryptic “touch and concern” standard.
Earlier this week, the Supreme Court denied Mohammed Jawad’s petition for certiorari.
As Lawfare readers know, the question of corporate liability under the Alien Tort Statute is once again before the Supreme Court. But other ATS issues are still dividing lower courts.
In late 2002, Afghan officials arrested Mohammed Jawad and transferred him to American officials. During his six-year stay at Guantanamo, Jawad alleges that he was tortured. Upon being released from federal custody and repatriated to Afghanistan, Jawad sued the government in 2014. Last year on Lawfare, Helen Klein Murillo described the D.C.
On Monday, April 3, the Supreme Court agreed to hear a new Alien Tort Statute case, Jesner v. Arab Bank, No. 16-499.
The long-running Alien Tort Statute suit against Nestle, Archer Daniels Midland, and Cargill for allegedly aiding and abetting child slave labor in the Cote d’Ivoire—Doe v Nestle—has once again been dismissed.
As Lawfare readers know, ever since the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum, lower courts have split over how to apply the majority’s cryptic holding that the Alien Tort Statute is presumed not to apply to conduct on the territory of another country, unless the plaintiff’s claims “touch and concern” the United States with sufficient force to overcome that presumption.
Mohammed Jawad was arrested in Kabul in December 2002 by Afghan security forces responding to the scene of a grenade attack on US military personnel. See Jawad v. Gates, No. 14-00811 (D.D.C. July 8, 2015) (D.D.C. Opinion). He was 14 or 15 at the time; Jawad doesn’t know his exact age but believes he was born in 1987. Afghan security forces abused, threatened, and coerced Jawad, “forcing him to sign a confession (written in a language that he could not read) with his thumbprint.” D.D.C. Opinion at 2.
Last week, the Fourth Circuit affirmed the dismissal of several Alien Tort Statute claims against Yusuf Ali, a former Colonel in the Somali National Army who served under the military dictatorship of Mohamed Siad Barre. The plaintiff, Farhan Warfaa, is a member of a clan persecuted by the Barre regime during the 1980s, and still resides in Somalia. Warfaa alleges that in 1987, Ali (and soldiers under Ali’s command) detained, interrogated, and repeatedly tortured him before shooting him and leaving him for dead.