Last week's U.S. News and World Report featured the story of union leader Villeda Aldana, who says that in October 1999 he was held at gunpoint and ordered to call off a protest against Fresh Del Monte Produce in Guatemala. After several hours of enduring death threats and physical abuse, Villeda recalls, he finally capitulated to his tormentors' demands. But now four years later, Villeda is filing suit against Fresh Del Monte in federal court in Miami for violating international human rights and U.S. laws.
Villeda's story may be astonishing. But equally astonishing is the Bush administration's request that U.S. courts dismiss Villeda's case and others like it to protect American interests in the war on terrorism.
Since 1980, U.S. courts have repeatedly invoked a 1789 law, known as the Alien Tort Claims Act, to consider human rights charges raised by foreign citizens. The 1789 law has allowed foreigners to file suits in U.S. courts against autocratic leaders such as Bosnian Serb Radovan Karadzic and fraudulent companies such as those alleged to have benefited from Nazi rule. But now the Bush administration wants to roll back this human rights enforcement mechanism, asserting that decisions made in courts on foreign issues could undermine the war on terrorism. The administration's position is at best hypocritical, at worst an attempt to use security policy to rationalize a special-interest agenda.
The administration claims that suits against multinational corporations could jeopardize alliances with foreign governments that are critical to U.S. security. But according to American University law professor Diane Orentlicher, the 1789 law "does not invite foreign plaintiffs to file suit as a first resort." U.S. courts generally intercede in overseas affairs when foreign governments have violated or failed to safeguard the basic human rights of their own citizens. Which raises the question: Can foreign governments that are unable or unwilling to defend their own citizens from terror really be trusted with helping to prosecute America's war on terrorism?
Indeed, the Bush administration has repeatedly made the mistake of appeasing governments with poor human rights records, all in the name of building anti-terrorism alliances. Since September 11, the United States has embraced Indonesian and Saudi leaders, despite their abysmal human rights records, in exchange for promises to crackdown on Islamic fundamentalism. As the bombings in Bali and Riyadh illustrate, this policy has worked about as well in Saudi Arabia and Indonesia as Neville Chamberlain's 1938 strategy worked in Germany.
As U.S. News noted, in the case of Indonesia, the State Department in August 2002 specifically asked a federal judge to dismiss a human rights lawsuit brought against Exxon Mobil for allegedly turning a blind eye to the Indonesian military's murder and rape of civilians. According to the State Department, the war on terrorism could be "imperiled in numerous ways if Indonesia and its officials curtailed cooperation in response to perceived disrespect for its sovereign interests." Two months after the State Department's announcement, terrorist bombs exploded at two Bali nightclubs, killing more than 200 people. And yesterday's Washington Post reported that the Indonesian military -- apparently without fear of U.S. reproach -- is rapidly broadening its influence over civilians at the expense of democracy. (Back in February, TAP Online contributor Jonathan Goldberg wrote on how newly declassified records from the dictatorship of Augusto Pinochet demonstrate just how sensitive developing-world dictatorships can be to U.S. pressure on human rights -- and just how emboldened they often feel when they think America is looking the other way.)
The lesson from Indonesia -- as well as Saudi Arabia and plenty of other countries -- is clear: Governments that abuse their own citizens, or allow corporations to abuse their citizens, promote environments conducive to terrorism. Far from undermining our security, then, the U.S. legal system's ability to enforce basic human rights standards has the potential to ward off terrorism by bringing to justice the malicious despots that create the illiberal conditions in which terrorism thrives.
Beyond mitigating against terrorism, U.S. courts' enforcement of human rights also helps bring consistency to U.S. foreign policy. In making the case for war in Iraq and Afghanistan, President Bush boldly championed the rights of all people to freedom from authoritarian rule. Even more recently, the president expressed U.S. support for the Iranian demonstrators fighting against their government's tyranny. But the administration's failure to uniformly apply these standards in Indonesia, Saudi Arabia, Pakistan and other countries has undermined the moral message of U.S. foreign policy. Living overseas for the last two years, I have found that foreign citizens overwhelmingly embrace the American values of freedom and security, but are frustrated by their selective application in U.S. foreign policy. Allowing U.S. courts to coherently apply human-rights principles is a powerful way to reassure foreign citizens that America stands with all people fighting against repression.
Unfortunately, the Bush administration's current stance sends the message that America cares more about its own interests -- narrowly defined -- than about securing freedom for the oppressed. Such a message contradicts the administration's claim that human rights are a core value of the war on terrorism. As Kenneth Roth, the executive director of Human Rights Watch, told me, "The U.S. claims human rights play an important part of our foreign policy. It would be hypocritical for the U.S. to shutdown one of the most important forums for ensuring U.S. companies respect human rights."
Since trying to strip the authority of U.S. courts over human rights cases cannot possibly benefit the long-term fight against terrorism, the Bush administration's appeal to the imperative of fighting terrorism to justify its position is dubious. A more likely explanation for the administration's stance is that it seeks to protect the interests of multinational corporations. "What's really going on is the administration is under pressure from corporations to cutback their exposure to human rights suits," Orentlicher explained. Having already proposed measures to reduce corporate liability at home (see this piece from the most recent issue of the Prospect by Sasha Polakow-Suransky), the administration is globalizing its pro-business agenda by asking U.S. courts to disregard foreign suits against corporations as well. In part, the administration's position may be motivated by money. Exxon Mobil, the company the administration sided with in the Indonesia case, gave more than a million dollars to the Bush campaign in 2000. But instead of rationalizing its position as a kickback to corporate donors, the administration seems happy to sell its stance as part and parcel of the war on terrorism.
After all, the administration has gotten away with using the war as a banner to advance the special interests of corporations before. Many of the administration's biggest contributors are pharmaceutical and oil corporations. Both have won special prizes under the disguise of anti-terrorism policies. In November, the president signed a homeland security bill to "harden America's defenses against terror" that included a special exemption for pharmaceutical company Eli Lilly, sheltering the company from multi-billion dollar lawsuits filed by families of autistic children. (This exemption was later reversed by Congress.) The homeland security bill also exempted oil, chemical and other companies from the Freedom of Information Act.
Ultimately, the Bush administration may have to own up to the contradictions between its humanitarian and corporate agendas. In Afghanistan, Iraq and Iran, the Bush administration has made the case that America must stand with the world's people in their fight against repression. Why then, Americans may eventually ask, is the administration standing against foreign citizens like Villeda Aldana who are fighting for the most basic of human rights?
Seth Green is a TAP Online intern. He will enter Yale Law School this fall.
