Radiolab - Enemy of Mankind

Episode Date: December 11, 2020

Should the U.S. Supreme Court be the court of the world? In the 18th century, two feuding Frenchmen inspired a one-sentence law that helped launch American human rights litigation into the 20th century. The Alien Tort Statute allowed a Paraguayan woman to find justice for a terrible crime committed in her homeland. But as America reached further and further out into the world, the court was forced to confront the contradictions in our country’s ideology: sympathy vs. sovereignty. Earlier this month, the Supreme Court heard arguments in Jesner v. Arab Bank, a case that could reshape the way America responds to human rights abuses abroad. Does the A.T.S. secure human rights or is it a dangerous overreach? Additional music for this episode by Nicolas Carter. Special thanks to William J. Aceves, William Baude, Diego Calles, Alana Casanova-Burgess, William Dodge, Susan Farbstein, Jeffery Fisher, Joanne Freeman, Julian Ku, Nicholas Rosenkranz, Susan Simpson, Emily Vinson, Benjamin Wittes and Jamison York. Ken Saro-Wiwa Jr., who appears in this episode, passed away in October 2016. Supreme Court archival audio comes from Oyez®, a free law project in collaboration with the Legal Information Institute at Cornell. Support Radiolab by becoming a member today at Radiolab.org/donate.    

Wait, you're listening to radio lab from WNYC. This is radio lab, I'm Jack Ebb and Rod. Okay, so, Supreme Court has a lot on the plate right now and a lot of Supreme Court news is coming at us Maybe one thing that you might have missed is that last week the Supreme Court heard a case that asked kind of an interesting and weird question whether or not the American corporations Nestle USA and Cargill are responsible for human rights violations overseas. The case was brought by six African men who alleged that they were child slaves on farms

that supplied cocoa to these companies. Should Nestle and Cargill be responsible for that? So that was the question. And a couple of years ago, on our spin-off series about the Supreme Court, more perfect, we actually reported on, well, there's the whole cluster of these cases that all poke at this question.

Should US companies be responsible for human rights violations that happen in other places that are not the US? It's kind of a fascinating question with some fascinating wormholes attached. So today we're going to revisit that more perfect episode to shed some light on the case that Supreme Court is, it could be deciding this term. This story comes from a more perfect season two. We're just going to drop right into it.

The United States, we give the Supreme Court the power to find justice for people. They come with boots, boom, boom, boom, boom, boom. People who have been abused and manipulated. Horrible. I mean, they lean back on their door. That power extends beyond state borders. They can with prepotencia. Sometimes even beyond national borders.

With, with, here I come and show you who I am. national borders. Question is how far do we want it to go? Should our Supreme Court be the Supreme Court of the world? Oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, oh yeah, Okay, so I go up at a time when a lot of people genuinely saw America differently than they do now. This was the 70s and 80s, Carter, Reagan years, and there was a sense, particularly if you were new arrival, that America was special, exceptional, that we held the world to a higher standard. Certainly, we brought my family to America. Okay, so it's not that way anymore so much, and it seems like every day, at least brought my family to America. Okay, so it's not that way anymore so much, and it seems like every day, at least in my lifetime, we're asking the question, how should we feel about that?

Whatever that is, that higher calling that somehow, for better or worse, embedded in the idea of being an American, is that stupidly wrong-headed, an arrogant, or is there something in that that we still should embrace? Turns out that argument is happening, has been happening in a totally fascinating way at the Supreme Court. Centered around this teeny, teeny law,

it seems to ask some pretty big questions about who we are, We want to be. Story comes from two KP's, Kelsey Paget, and Kelly Prime. KP2? KP1. I believe you are now KP1. KP1, okay. You've ascended the ranks.

I am now KP2. We're three. You're all KP1. Seven. Stop it. KP12. Okay, stop. Kelly, start us off. K.P.12. Go, okay, stop. Go, start it. Start it, stuff.

Yeah, so the story begins appropriately enough not in America, but it starts in 1976 with this woman. I have to get used to. Yeah, that little better. Okay. So I guess the first thing, if you could just introduce yourself? Well, my name is Dolifila Artiga. I am from Paraguay.

Paraguay, it's a small country right on top of Argentina. And Dolly's family, the Philarticles, are a pretty big deal over there. What happened in my family was that my grandfather was very rich. The Florida kids made their money exporting tobacco to Europe for big cigarette companies like Jiton. Was a family that owns a beautiful tower

in the countryside, lots of land. Two airplanes. Now this could have been Dolly's life. But it was him going to be like that. And it wasn't because of her father. Your father, what's his name? Or what? Hoel.

Hoel. And what did your dad do for a living? He said, doctor. Her dad very famously turned his back on his fancy upbringing and moved the entire family to the countryside. The old one was short on money. And there he set up a clinic to give medical care to the poor indigenous farmers in that area.

He'd take care of like 47,000 people. He was the only doctor in a lot of cities. Her dad became kind of like a patron saint of the countryside. Not only would he give the medical treatment, but when they came in, he would tell them, go vote, rise above your station. And as you can imagine, as word got out, this really pissed off Paraguay's ruler at the time.

A guy named Alfredo Strassner. He was called the bullpoth octopus because he said he had arms and tentacles that reached into everybody's lives there in the country. That's Renee Horst. I'm a professor of Latin American history here at Appalachian State University. When Dolly was growing up, Renee lived next door in Formosa, Argentina, right across the river from Paraguay. And Renee says at that time, both Argentina and Paraguay were part of this like big network of dictators. So, we had a lot of different types of military and military military equipment. We had a lot of different types of military equipment.

We had a lot of different types of military equipment. We had a lot of different types of military equipment. We had a lot of different types of military equipment. We had a lot of different types of military equipment. We had a lot of different types of military equipment. We had a lot of different types of military equipment. We had a lot of different types of military equipment. We had a Uruguay, Paraguay. And it was all masterminded by Pinoté and Chile. René said that Operation Condor was a lot like a spider web,

with Pinoté as the master weaver, the spider. Now, the Communist Revolution in Cuba had just happened, and so these six super militaristic dictatorships, they banded together to pretty much trap communism and keep it out of South America. Remember, this was the Cold War, and America really wanted to keep communism out of the continent, too. And so we backed the whole thing. The result was a network of state-sponsored terror.

In the darkest part of the night, they would come to your apartment and drag you on and stuff you in the trunk of a a Ford Falcon car and you would disappear forever My father used to tell the best I don't don't vote for a Strontner so this was like the context behind Dr. Philardigan's rebellion Dali said he traveled all over the world giving talks trying to show everything what a Strontner was doing in the country. He would tell his patients when the government comes to buy your crops. Put it away, don't sell it.

Don't give them a thing. Dali tried her best to ignore all this. We didn't get that long with my father. I have to say that. So, when I get older, she moved away from the country and I came to the city to live. What city was it? Assumption. She worked to put herself through school and then, Wuelito and Annalik followed me after. And then Dali says she worked to put her two siblings through school. Her sister Anali at the time was 14 and her brother, Halito, was 17.

Love Halito, love Halito. He was her favorite. Halito looked like my mother, green eyes, castanio hair, light hair. I know that he had a lot of girls that crushed on him. This is Dali's daughter, Paloma. Very handsome, yes. But he wasn't a player or anything. And what was, what was Holi Tos' personality like?

Was he loud? Was he quiet? To see those people that say things and you lethiko he's so funny all the time, those people that they job. Comedian? Comedian. We always saw that he would become a comedian.

He was very funny. So you two were close? Very close. So that's the backdrop. 1976, Stalle is in the city with her two siblings, where her dad's out in the country, drumming up opposition to the regime. At that time, Jolito, he tell many friends that he feel that he was being followed. He didn't want to tell us because we always tell him to be careful. Even my father, who else used to tell him be careful because you are who are my son.

And at that time in Paraguay, it was well known that there were spies everywhere. The Buddha Way. Buddha Way is an expression in what I need. The person with hairy feet. With hair. It's called a puyi da wai. It's a nickname for informers of the regime. So, things were already tense. And then, on March 29th, 1976,

Dali and her siblings are turning in for the night. Around 11, maybe. Dali and Adali both sleep in one bed. Enqueleto has his room. And so he went to brush his teeth and then go naigo nae. And what happened was that we hear in the middle of the night maybe 3 o'clock was the bump in in the door, but with the shoes and she wakes up like what's happening. She throws on a coat over her night gown to cover myself. And she goes to the door where she finds a cop.

He said, you have to come with me that is a little problem with your brother, a spani-house. At Pena's house, remember that name? Inspector General, a medical peña. He lived two doors down, and she didn't know him too well, but he was a policeman and she'd always had suspicions about him.

So Dolly steps out into the chilling night in her night gown. The street was full of policemen, car. The officer who was at the door walked her over to Pena's house, into the house, down a long hallway, that she says was lined with even more policemen. They maybe was, I don't know, 70 of them, 35 and 35, one close to another. She says as she walked down the hall, the policemen sort of parted for her and guided her to a room in the back of the house. He went into that room, opened that door, and so little spotty.

He was lying on his back on a mattress. And this gorgeous human being, my brother was so beautiful. His body is covered in gash, as you can see where he's been stabbed over and over again and maybe tied up. They burn him, they cut him, I found the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the most gross. Terrible. Terrible. You don't know how to spray how other human beings can do that to another one who never did anything to you to do. I don't know.

Daly says she bolted out of the room and immediately ran in to Inspector General Pena. He was standing in the doorway. I saw Pena in my wife, Pena told me, you better shut up. He is the thing that you deserve. And you better get quiet because next time we'll be using something like that. You see?

He told you next time it would be you? Yeah. And you're family. You better shut up. I say, I am Dolly Philatia. You don't know I am Dolly Filatia. You made me shut up today, but tomorrow I will not know what you did to my brother. Over the next three years, the family tried to get justice. They sued Pena and the Paraguayan courts, but their lawyers were threatened. One was disbarred. When Dolly and her. They sued Pena and the Paraguayan courts. But their lawyers were threatened.

One was disbarred. When Dali and her mom testified against Pena, they sent us to jail. So we went to jail. When Dali and her mom got out of jail, they raised publicity. I'm showing what they did to my brother. They convinced reporters to write newspaper articles to call for an investigation.

But before anything could happen, Pena, he this up beer. He vanished. He fled the country altogether. So the question is, if you're Dolly, what do you do? Your brother has just been brutally murdered. You know who did it. But you know you can't adjust as in Paraguay

because the whole court systems in with the regime. And you can't go to the International criminal court because it doesn't exist yet. And even if it did exist, your case is way too small. So what do you do? Well, I said we have to do something. Fast forward to 1979. I moved to Washington. Dal is living in DC.

Cleaning, cooking. Cleaning houses, working part-time at a law firm. Very frustrated. All this time she's had feelers out with her dad's connections at NGOs, just trying to find out at least where Pena is living. I always have communication with Te Paraguayan living there. Finally, one day that's spring. She got a phone call from one of those connections.

They found Pena. They told me that Pña was living in Brooklyn. He'd been working at a furniture store in Brooklyn when a fellow Paraguayan had recognized him, out at him. I didn't know what I was going to do, but I wanted justice. Hmm. How do you get justice in this case? I was desperate, eh.

You got a Paraguayan responsible for the death of another paraguane in Paraguay. Impossible to do anything that was happening far away. Like even if he did something wrong, which it seems like he did, there's nothing to do with America. Nothing. Well I say we have to do something. So I was looking for help. Dali contacts a lawyer who refers her to another lawyer,

who refers her to another lawyer, who gets her in touch with this guy. Peter? Peter Wise. Wise. Santa for constitutional rights. Santa for constitutional rights. Right.

Peter says even before Dali showed up. We were trying to figure out how to sue people committing crimes against humanity and war crimes. For example, 104 unarmed Vietnamese women, children and old men were massacred over a four-hour period by US troops. This was around the time of the Meal-I-mask and Central Vietnam. When that happened by colleagues at the center of the night... It'd been wondering, was there a way for them to bring a case against US military on the half of one of the victims?

In an American court, if the crime was committed abroad. So I came and met Peter and asked for a hint. So I called an emergency meeting of the Santa staff. Any ask them, is there a way we can help? Is there some like wormhole in American law that would let us bring non-Americans and non-American crimes into American courts? And one of us at the center was obviously a good researcher. And they said, hey, you know, there's this super old, super obscure law.

Something called the alien-toid statute. The what? The alien tort statue. And it seemed just right for that case. I don't know how many hours and hours and hours and hours they tried to finally they found this law that they used to use against the piratas, the piratas. Pirates. Pirates, thank you.

Pirates. Yeah. What do pirates have to do with anything oh who yeah what you want to illustrate to me or you want to go Kelly to hand off I want to to someone to answer my question sure who are you by the way I'm Kelsey Paget a reporter okay and yes this story has to do with pirates definitely we'll get there. But before that, there's this even crazier background. Okay. You gotta buy it. You gotta go with me on this journey because, you know, it's a lot different.

The rest of this story. So ready to go on this journey? Yeah. Take my hand. We're going to... Elabel. We from PHI, L-A-Parian! All the way back in 1784.

Grenova and a banana. This is William Casto. He's a law professor at Texas Tech. He told me this story, and it's really a story of like a fight of a beef. Yeah. Here's a situation. It's 1784.

You've got this guy. Mr. Dillon Chams. Charles Julian DeLong Choms. And he's a French guy and he's living in Philly. He apparently was an officer in a French cavalry regiment and a nobleman by birth. By the way, some people didn't like him. Thomas Jefferson said he's an upsc quote-obscure and worthless character, okay? Why? Why do you say that?

Uh, doesn't matter. What's important is that he is here in America has a bad reputation and he ends up meeting this girl. A nice young Quaker girl, a quote, a chorus to a competent fortune. Ooh, yeah. And her friends disapproved very much so. And so they started circulating rumors around town, around Philadelphia, that Longchomp was a liar, that he was not of noble birth and wasn't even an officer. And he was this probably gold digging, you know, since she had this money.

Nice. The Longchops is really mad about this. He was incensed, and he put on his uniform, and he stormed over to the French embassy. He goes to the embassy, and there he spoke with Francois, Barb Marbois, another French guy, who was theassies first secretary, okay? Here's an aside.

Yeah. Marboa later was Napoleon's minister of finance. Oh. And he negotiated the Louisiana purchase. Oh wow. But that's just an aside. Point is Marboa is like, unimportant dude. But, you know, the other French guy, DeLongchomp's the,

maybe Scoundrel guy, he walks in and he's like, I guess he doesn't show a lot of respect. He's like, an important dude, but, you know, the other French guy, DeLongchomp's the, maybe Scoundrel guy, he walks in and he's like, I guess he doesn't show a lot of respect. He's like, you know, I need you to drop everything and help me out with the situation because people are spreading rumors about me. They're saying I'm not a nobleman or whatever, I need you to stand up for me. And Marboa refused.

We don't know why. At any rate, in response, Longchomp shouted at Marboa, I'll translate it. I will dishonor you. And then he called him, and this is a translation, a laughable scamp, which is kind of, can you imagine people calling someone a laughable scam today. It seems tame, honestly. Very tame. But those words would create a national crisis. And in fact, everything we're talking about today goes back to this little confrontation.

How? So like honor was this big deal back in the day. Like it's why Hamilton dies, right? Something like calling someone a laughable scam who could cause a death, you know what you mean? So like honor was this big deal back in the day. Like it's why Hamilton dies, right? Something like calling someone a laughable little scam who could cause a death. You know what I mean? Like that's the kind of thing you do a duel over. It was an indignity.

Mar-Bawah was so pissed at the moment. And he did the right thing in that time period, which is instead of having a duel with the man, he contacted his bosses. He wrote a letter across the seas to France and said, y'all, what are we gonna do about this? Now, the French don't like what's going on. The French want us to put him on a ship back to France

and have France punish belong champs and the Pennsylvania Executive Council agreed, but the judges refused, they say, we're not going to do that. That's ridiculous. All that causes France to say, you know what? If we can't be sure that America is going to take care of this, that they're going to punish this guy, maybe we can't take this brand new country seriously.

Maybe it's a land of no law. Oh, so it really escalates. Yeah, it becomes this huge thing. and you got to keep in mind it. At that time, the United States was the third world nation. We were weak. France had been our buddy during the revolution, and the feeling was we desperately needed the help of other countries because we were just this baby little country. By the way, the Dutch ambassador was furious too because he said, if you don't punish long

chomps, I'm leaving the state. You actually threaten to leave the state. It really created problems. So we had to do something. But the question was, what? The national government had no authority whatsoever to deal with or punish a person like longchoms because it wasn't a crime to just say I will dishonor you. And even if it were, the insult happened at what was essentially the French embassy.

Some have argued that that made it this a situation outside of the United States. So I step in there and I'm suddenly under the rules of France. Yeah, that's the argument. You know, did we have jurisdiction over that space? Did we not? Point is that the new US government, they were just powerless. They didn't know what to do. What happened?

Well, so the case goes to court. And the judge in that case, he's trying to figure out what to do. He's in a really bad political situation. He's got to punish this guy and he's looking at his books. to do. He's in a really bad political situation. He's got to punish this guy, and he's looking at his books. No law. He's got no laws to charge this guy under. And then it occurs to him. You know, there are some other laws that aren't explicitly written down,

but that all people across the world agree are bad things. All nations agree that this is bad and can be punished. And the classic example of that is pirates. Now pirates are out there on the open seas, or pillaging, plundering, killing, and they are not really subject to anyone nation's laws. They're not doing this in a nation. No one had specific jurisdiction over them. And going all the way back to Roman times,

pirates were designated as universal enemies. The hostess Humani generis. That's Samuel Moyn, history professor at Yale University. The phrase in Latin is hostess Humani generis, which means the enemy of the human kind or race. And it means that maybe there's things that are so heinous, you don't have to pass a law to make them illegal, and you don't have to be empowered to stop or punish the perpetrator of such crimes, because they're just so bad and piracy was the classic example.

Okay, so what the judge decides is that this French guy in Philadelphia who insults the fancy French guy in Philadelphia, the way that we're going to solve this is by saying that the insultor, he's a little bit like a pirate. Now, he doesn't use the term pirates, but it's the same concept. He said that that guy, Dolongjump, has broken international norms. He is guilty of an atrocious violation of the law of nations. He not only affronts the sovereign he represents, but also hurts the common safety and well-being of nations. He is guilty of a crime against the whole world.

And that's a quote from the ruling. They then find him 100 French crowns and two years in jail. Two years. Two years. For saying, I will a lot, just. I will dishonor you. Wow. Okay.

This move by the judge basically works. Mar-Bwa and fans feel good. Their honor's been protected. The Dutch ambassador doesn't leave. He stays. But more importantly for our story. In 1789, Congress passes some of their very first laws. There's like this one big bill about courts.

And in there is this thing called the Alien Tort Statute. The Alien Tort Statute, you know, it was written into law to deal with this kind of situation where a diplomat is insulted or attacked or something like that. But more generally, it was meant to connect U.S. law to international law. The law basically says, and I'm simplifying this a bunch, but it basically says like, if somebody violates international norms, you know, like a crime against the whole world, they can be sued in US civil courts. Wait, you're saying there was a law from the beginning that allows non-US people to sue each other for non-US crimes in U.S. courts?

Yeah. That's so weird. But, but like the thing is, this is Kelly again. Hello, Kelly. When it comes to this law, like forever no one actually used it. Really? It was barely mentioned for 200 years. Why? Why wouldn't it come up?

If you think about it though, it kind of makes sense. It wasn't used because it was a super-specific law. This was a weird circumstance in which we really needed to bring international law and use it inside our borders. But that kind of thing, like diplomatic fights, like that didn't happen very often. And more generally, the prevailing idea at the time was that internationally, we should kind of stay in our lane. If you're going to come into our country and mess with our citizens, was that internationally, we should kind of stay in our lane. Like if you're gonna come into our country and mess with our citizens,

like, yeah, we're gonna do something about that. But if you wanna do something to your own citizens, that's not my business. There's an old idea that in every country, the government can do to its people whatever it wants and nobody in any foreign country, the government can do to its people whatever it wants, and nobody in any foreign country, no foreign government has any business telling them what to do. This is Eric Posner.

Professor of Law at the University of Chicago. And he says the reason that the alien tort statue was pretty much ignored is because of this idea. This idea of sovereignty. That we're not going to tell you what to do in your borders, so don't you come into our country and tell us what to do. Most people don't know this, but there was actually a humanitarian basis for this harsh sounding principle. Came about in the 17th century, he says. The problem back in the 17th century were religious wars. Protestants invaded the Catholics, Catholics invaded the Protestants. You know, endless strife. And so the idea was let's simplify things

and just understand that in foreign countries, people have different values and ideas. And it's just not practical or good in the long run if we try to tell people in foreign countries how they should behave. And this was the dominant view for hundreds of years. Until World War II, really. But the Holocaust changed everything.

No words can express the world's disgust at Germany's organized economy. One of the defenses that Nazis gave to the specific charge of mass occurring Jews is that they were protected by the principle of sovereignty. That was, you know, considered an unacceptable argument in countries around the world, basically agreed that limits had to be put on sovereignty.

And those limits would be known as human rights. And just a few years later in 1948, you get the universal declaration of human rights. It is the first case on which the organized community and the nation is made a declaration of human rights. In suddenly, all eyes turn to human rights. Look at the golden moment. Professor Samuel Moyn again. He says if you fast forward to the 70s,

Americans having fought Vietnam, having sullied themselves and doing so, want to bring human rights to the world now. And the human rights movement was very exciting. You know, there were rock concerts and... There's a lot of famous people. You know, it's... Joan Baez and a lot of rock stars and pop culture icons get involved.

Amnesty International. Amnesty wins the Peace Prize. No better Peace Prize for 1977. As long as I am president. Jimmy Carter is inviting the government of the United States. Dissidents from Eastern Europe to visit the White House. We can you throughout the world to enhance human rights. It's a new cause that's very exciting to a lot of people, and rightly so. It would be great if America could make the world a better place.

So, this brings us back to Dali. So, I came and met Peter. In Peter Wies. Trying to figure out how to bring Dali's case to US courts. That's the context. America is having this moment with human rights, and we want to bring it to the rest of the world. So when someone in Peter's office suggests using this old little law to get justice for Dolly, it seems obvious like of course. So I called an emergency meeting of the Santa Stair. Basically their idea was that

some crimes like piracy were so bad that that borders didn't matter. Like anyone should be able to prosecute them, and the US should be able to bring these people to court on behalf of the world. But I have to tell you that the majority of our colleagues that thought we were slightly insane. Did your boss say like, what?

Yeah, people said you're never going to get anywhere with this. It's all about paracord. So Dalai's lawyers they filed their papers and eventually this case gets in front of a federal circuit court. The federal court eased them districts Brooklyn. In the day of the trial you saw Peña in the elevator at court? Yes. I met him in the elevator and I asked him, why did you do that to my brother? Why did you do that to him? Why? He couldn't answer, he was shaking. Anyway, we were in the court, he separated Waya Nayan to and so on.

In the court they submitted autopsy reports. We bring the photographer from photographer pictures. We bring the picture of him with the mattress. Lolita was in the mattress. Time, the feet and the hands like this. And Peter says that after he made his argument, an interesting thing happened. When I finished my argument, the judge started to go back to his chambers and before he got

out of the courtroom, he turned around and said, interesting case. Hmm. Oh, so what happened? Well, the judge ruled against them. Ah. But they appeal. Then it goes up to the second circle. And ultimately, a judge orders Pena to pay $10 million to Dolly and her family.

They won? Yeah. What happened was like a miracle. I was able to get justice in the United States. In the Philartica case, they convinced the second circuit that the alien towards statues. It wasn't just for stuffy diplomats anymore. It was for human rights.

Period. They say, look, torture is now like piracy. And this ruling sets off. And then we're off to the races. In explosion of cases. I mean, in 1984 you had teleran the Libyan Arab Republic in the Isavilevo. 85, the Soviet Union. Then, Dardo, the USSR, 1987.

There was a case from Argentina called Forti, V. Suarez, Mason. He swung their form. 1991, Guatemala, 1993, Ecuador and Peru were until 95 former Yugoslavia in 1999, Chile. Basically what you saw in the 80s and 90s and into the early 2000s is that cases from all over the world started just like flooding into American courts. The reason this statute is so important is that it's American law. It gives American lawyers who want to use their legal training, something to do as part of this cause. Lawyers can save the world while practicing law. I think looking at the role of the ATS, it's hard to underestimate just how much impact

it's had. This is Catherine Gallagher, also from the Center for Constitutional Rights. The Alien Tort Statute over the last 35 years has become the source of almost all significant human rights litigation in the United States and indeed in the world. And that's John Belinger. Legal advisor for the Department of State from 2005 to 2009. Before Fulertica, there was very little that victims of human rights violations could do. There were a lot of folks, especially in the American legal system, who felt like America had never

been a greater force for good in the world. But the rest of the world wasn't so sure. That's coming up. More perfect we'll continue in a moment. This is Marnie Campbell from the beautiful banks of Lake Washington and Seattle, Washington. Radio Lab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. More information about Sloan at www.Sloan.org Science reporting on Radio Lab is supported in part by Science Sandbox, a Simon's Foundation initiative dedicated to engaging everyone with the process of

science. This is Radio Lab, I'm Chad Abumarad. We are looking back, listening back to a story that we ran on more perfect season two, because just last week, Supreme Court heard a case that relates to everything we're talking about in the stories. So let's just get back to the 2KPs, Kelsey Paget, Kelly Pratt. Here's Kelly. Where we left it, Philartiga just happened.

We had an explosion of cases. American human rights lawyers were feeling really good about themselves. But diplomacy is a delicate thing. Many foreign governments, including many Western democracies. That's John Belinger again. Great Britain, Australia, Germany, Switzerland, would regularly complain to me as the legal advisor of the State Department, that they thought that the alien tort statute was in fact itself a violation of international law because it allowed US judges to have jurisdiction over actions that had absolutely nothing to do

with the United States. But instead of dialing it back, human rights lawyers, they decided why not push it even further. So around 1995, they made a big leap. They decided that instead of just going after individuals like foreign government officials, they were going to use this law to go after foreign corporations. When the first alien-t tort statute cases were filed against corporations, these cases were really seen as slightly crazy. How can you do this? These are corporations,

these are not governments, these are not dictators. How can you sue them under this law? But what human rights lawyers said was, if Dalai's case showed us that this law is about modern day pirates, what better example of pirates do we have nowadays? than multinational corporations. If you want to go all the way, you could say there are these big, massive entities

that just can reach out their tentacles into any country. They float between jurisdictions, move from one to the next to the next, and commit brutal crimes, like sometimes they empower dictators to commit those crimes. And when you try and pin them down, like when you want to hold them accountable, they can just vanish.

So yeah, all of that sounds really abstract. For me, it didn't really register like why you would go after a corporation. Until I heard this story, the story of Kinsair Weowa. I grew up in a political household and my father was a national figure because he was a writer and a commentator in newspapers. Just like Dolly, Kins had this famously outspoken dad. Very much as social critic. He was a famous thorn in the side of the regime.

The regime, in this case, is this military dictatorship in Nigeria. New Year's Eve, the military deposed the civilian democratically elected president Shaggery. In the 80s and 90s, Nigeria went through a series of military coups. And Kinn's dad, who actually wrote a sitcom that was like very famous millions of people around the country watched it, he would make jokes about the regimes. He would write articles about them. And you know, the subject of his, both his columns and his television program, the inequalities of Nigeria's political system.

The situation at the time in Nigeria was that you had tons of oil under the ground. An estimated $30 billion worth of oil. And in order for the military regime to get that out, they partnered with a division of shell. Shell companies in Nigeria are supplying domestic gas and generating electricity. Problem was, the people who lived on the land where the oil was, they're really poor. And they weren't given barely any of this money. And against that, at insult to injury, unchecked oil production, oil was creating an environmental

disaster in our community. What we are walking on now is crude oil. This land is lost for the next thousand years. This is a clip of Kin's father showing a reporter, Rue and farmlands. An oil pipe burst here in 1970. Oil still seeps to the surface. Nothing is going to grow here. It's a land that's been devastated by oil production.

In some places, surface water contains 900 times the accepted level of benzene which causes cancer. So, Kin's dad, you know, he was writing articles about this, he was speaking out about it, but eventually he decided that wasn't enough. And I decided, I think, in the late 80s that he was going to take to the streets. And I'm like, I'm having a... Did you know that people have been cheated through laws. In the 1993, he organized Ogani Day, where 300,000 people came out to protest. We are going to demand our rights peacefully, non-violently, and we shall win.

Over the next month, the protests kept going. They escalated as tension increased. An oil worker was badly beaten and then Shell pulled out of the region, resulting in the closure of oil operations in the area. And they took millions of dollars with them. And the government depended almost solely on the revenues from that one economic activity. And so, not long after the protests,

Ken's dad was thrown into jail. And Ken Jr., he begins frantically traveling the world, trying to raise awareness about a dad situation. The publicly put pressure on General Abasha and Nigerians had a state. And on November 10, 1995, two years after his dad had been arrested, Ken is at this International

Conference, New Zealand, trying to sort of lobby world leaders. And he says that after dinner, he just got this funny feeling. I know walking across one of the streets, and I just saw the sunset that evening. It was a beautiful sunset, actually. There's a big red sun just sinking into the bay. And I felt something going my chest. And I think I knew. I knew then that something had happened.

Ken Sarawewa, writer, human rights activist, campaigner on behalf of his fellow tribesmen, hanged this morning in an Ijurian prison. Ken says that world leaders spoke out, the Prime Minister of England, even Nelson Mandela. Unfortunately, it was not to know avail. Nothing happened. It's difficult to know what to do with all of that. How do you get justice for what happened to your father? You could argue, and this is what lawyers later did argue, that the only way to get justice

was not to go after the regime, but to go after Shell, and its parent company, Royal Dutch Petroleum. In going after Shell, they claimed that they helped the Nigerian government do some horrendous things. They claimed that shell aided and abetted the Nigerian government and kidnapping and torture and... Shell directly did this stuff or... Well aided and abetted.

So the claim is that they would supply guns. They'd actually supply guns. Well actually the allegation, the claim is that it's just ammo. But still, that's not a... Right. And there were other things too, like if they claimed that Shell would call in this sort of special forces unit of the Nigerian government that that, colloquially everybody was calling the Killin' Go mob.

Oh, their claiming Shell was calling in hits? Yeah, basically. That Shell was like, you know, hand in hand with the government on this. Of course, Shell denies all this. And in 2002, people, you know, hand in hand with the government on this. Of course, Shell denies all this. And in 2002, people like Ken, who had lost brothers, lost family, you know, and also surviving victims of all this violence, they banded together with some American lawyers and brought a case under the alien towards statute. They alleged that Shell was essentially the hostess, Humane Gennarest, the enemy of the human kind or race and

Therefore could be tried in American courts Yeah, and as you can imagine they got pushback in this case got challenged All the way up to the Supreme Court We'll hear argument first this morning in case 1014 91 The obel versus royal Dutch petroleum. Okay. This case was actually argued twice But we're combining them here for simplicity. So, the basic issue in this case seemed really simple at first. Can you use this law against corporations?

Like, if you read the Philartica decision... The torturer has become, like, the pirate and slave trader before him, an enemy of all mankind. This is Justice Kagan actually reading from the Philartiga decision and saying, you know, we... We gave a stamp of approval. The courts have said this is okay. There were certain categories of offenders who were today's pirates. So the question was, are corporations in that category? Can they be considered today's pirates?

The principle issue before this court is whether a corporation can ever be held liable for violating fundamental human rights norms under the alien towards that shoot. That's Paul Hoffman, the lawyer representing the Nigerians bringing the case. And let me start by saying that the international human rights norms that are at the basis of this case. Like all the terrible crimes that we've all already agreed are crimes against humanity. All of those using the right snorps are defined by actions. They're not defined by whether the perpetrator is a human being or a corporation. And if Philartica says that torturers are today's pirates, what about a group of torturers? What about pirates incorporated? You think in the 18th century, if they brought pirates incorporated and we get all their

gold and the black beard gets up and he says, oh it isn't me, it's the corporation. Do you think that they would have been said, oh it's icy, it's a corporation goodbye. Go home. That's Justice Breyer basically agreeing that in this case to differentiate between like a corporation doing bad things and a person doing bad things, it's kind of silly. This case clearly struck justice prior powerfully. The question to me is who are today's pirates? He says Adolf Hitler was like a pirate.

Hitler isn't a pirate. Who is? They're the dread pirates of our time. And we have treaties that say there is universal jurisdiction. The alien twist statute, as it was applied to human rights cases from Florida to gone, is part of a trend in the world today. The trend in the world today is towards universal justice for people that and corporations that violate these kinds of norms. That's the trend. In fact, the United States has been the leader in that.

Our government has proclaimed our leadership position. We thought the argument went extremely well. And we really did not see how we should lose. But then it was Shell's turn. The trouble is that the choice to pursue corporations might have killed the goose that laid the golden eggs, because on the one hand, it makes sense to shift to corporations they have the money. On the other hand, corporations will use their money to hire the best lawyers they can buy. Lawyers like?

Missoula. Kathleen Sullivan. Mr. Chief Justice, and may it please the court. When Kathleen Sullivan got up there, she and the defense team basically sidesteped the whole issue of whether corporations should or should not be considered pirates, whether this law should or should not be applied to corporations. They actually went bigger.

They started talking about all the reasons why, actually, using the ATS for non-American crimes might be a really bad idea for anyone. It came down to three main points. One, reciprocity. We fear that if we say that a United States port can be open to try any accused law of nation's violator for anywhere in the world regardless of the place of the conduct, the other nation's of the world might seem to do the same to us. Basically, if we can take people from other countries

and try them in our courts, what's stopping them from doing that to us? It should inform your decision today. And the second point made by Shell. It's where the offense to the principle against international friction is at its highest. International friction. Like, this could cause a diplomatic nightmare.

You're basically saying other countries, these judges that you didn't elect, we didn't elect them either, frankly. I didn't vote for them, you didn't vote for them, they were appointed, and now they're going to be patrolling international law. Are we really comfortable with that? And I want to stress that our point is that the US is projecting here our law onto foreign countries. And finally, the statement of the case is really striking.

On the most basic level, what does the case like that, what business does the case like that have in the courts of the United States? How is this any of our business? There's no connection to the United States whatsoever. It's a point that really jive with Justice Alito. Why does this case belong in the courts of the United States?

Well, there's nothing to do with the United States other than the fact. In a way, in that moment, he sort of captured how America had shifted. We didn't want to pretend to be that shining city on the hill anymore. That was over. I have the opinion for the court in case number 10, 1491, keyable, and others versus Royal Dutch Petroleum Company and others. In the end, the Court decided to rule in favor of Shell and Royal Dutch Petroleum. The Chief Justice wrote the decision.

Justice Story wrote in 1822 that no nation has ever yet pretended to be the custoste morum of the whole world, the guardian of morals of the whole world. First, it's just a matter of common sense that when Congress passes a law, it is passing a law that applies in the United States, and not some other country, unless the law tells us otherwise. Second, regulating conduct abroad risks serious foreign policy consequences, and courts are and should be reluctant to invite such consequences unless that is what Congress clearly intended. He says that extraterritorial conduct, conduct that's outside the United States, isn't

going to count. There has to be some relationship to the United States. Basically, they took the ATS and they clipped its wings. Do you feel like the... I'll tell you the read, the thought brewing in my mind, and I'm wondering if you would agree or you think it's stupid. The sense that I have with the ATS is that it came about at a moment of great idealism and hope.

And now after the fog is cleared, so to speak, it seems to represent not just hope, but naïve, Tay. The fact that we think we can change the world, that it's that easy. The ATS, and it's falling out of favor, somehow represents in a way the way in which we've all had a kind of sober awakening.

I wonder, do you feel like human rights in the way we understood it is dead? No, I think it's transformed our idealism. But maybe the disaster in Keobal was a moment of kind of stepping back to think a bit more broadly about how we can make the world a better place. And Samuel Moyne says, we do need to rethink some things. Frankly, it's a little dishonest to just pretend that America brings justice to the world.

America was founded on the idea of human rights. I was the first nation in the history of the world to be found explicitly on such an idea. Which is not really true. And as they've presented their cases, the human rights movement leaves out how much the United States has often been involved in the evil they're portraying in court. So at the very least, he says that what this decision shows us is that before we run around judging other countries, we should take a hard look at ourselves. Absolutely. But more importantly, in the end, we can't avoid the question, what's the best bang for our

buck? It's just not proven yet that ATS is it. He said all you really had was a few individuals who won cases and by the way, most of them never got any money. Really? Yeah. Dally didn't get paid. You know, after she won, Pena fled again.

And so in a way, the alien towards statute didn't have far to fall to begin with. Oh, so they're just symbolic victories? You could definitely see it that way. Do you feel like you got justice? What did you get after this? Yes, yes, yes. But Dali Florida good doesn't. You

didn't get any money back, correct? Yeah, but it never was for for for the money. The money won't pay. Don't bring me back, Juanito. I find that Juanito, no, no, murió de balde. I know how to say that in English sometimes. That was a reason. Yes, yes. I lost a brother. But when we won the case here in New York, in United States, I get so many other brothers and sisters

through all over the world that they find the Jolito didn't die yet. And Jolito lives forever. Producers Kelsey Badgett and Kelly Prime. So there you go. This is a story that gives context to a case that the Supreme Court just heard last week regarding the companies Nestle and Cargill. Six African men claim that they were held as child slaves on farms that provided cocoa to these companies. Should those companies be held responsible, that's the question that is before the Supreme Court will wait and see what they rule.

Till then, I'm Chad Abumrod with Suzy Lecktenberg, Julia Longoria, Kelly Prime, Sean Ramos firm Alex Overrington and Sara Carrey. This episode was produced with Kelsey Paget and significant editing Juju from Jenny Lawton. Take a Jenny. We also had help from Ellie Mistal, Christian Ferrius, Linda Hirschman, David Gabel, and Michelle Harris. Supreme Court audio is from Oye, a free law project in collaboration with the Legal Information Institute at Cornell.

Leadership support for more perfect is provided by the Joyce Foundation. Additional funding is provided by the Charles Evans Hughes Memorial Foundation. Additional music for this episode was by Nicholas Carter. And on a sad note, Ken Sarah Weowa Jr., who appears in this episode, passed away in October 2016. 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2 %, 2%, 2 %, 2 %, 2 %, 2 %, 2%, 2 %, 2%, 2 %, 2 %, 2 %, 2%, 2%, 2, 3%, 2, 3%, 2%, 2, 3%, 2, 3%, 2%, 2, 3%, 2, 3%, 2, 3%, 2%, 2, 3%, 2, 3%, 2, 3%, 2, 3%, 2%, 2%, 2%, 2, 3%, 2, 3%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2%, 2 Thank you. you