Mr. President, I rise today to introduce a bill which will clarify certain National Park Service authorities for the Golden Gate National Recreation Area and San Francisco Maritime National Historic Park. I also want to thank Congresswoman…
Mr. President, I rise today to introduce a bill which will clarify certain National Park Service authorities for the Golden Gate
National Recreation Area and San Francisco Maritime National Historic Park.
I also want to thank Congresswoman Pelosi for introducing a similar bill in the house. As a San Francisco native and a former mayor, I know these parks are extremely popular tourist sites and I believe this bill will allow the National Park Service to restore and renovate these parks in order to maintain their status as top tourist destinations.
The Golden Gate National Recreation Area is one of the largest urban national parks in the world--home to such renowned sites as the Presidio of San Francisco and Alcatraz Island. Additionally, the San Francisco Maritime National Historic Park, located at the west end of San Francisco's Fisherman's Wharf, includes a fleet of landmark vessels and a maritime museum.
Presently, the revenue collected by these parks must be spent in the same fiscal year in which it is collected. Otherwise, any revenue that is not spent is deposited in the National Treasury. This current policy makes it difficult for these two parks to pursue long term, major restoration projects. This bill makes the necessary changes to allow these parks to undertake needed substantive restoration as opposed to smaller, less significant projects allowed under the current revenue system.
The bill also calls for a modest boundary adjustment between the two adjacent parks in order to be consistent with the current administration of San Francisco's Municipal Pier.
I am introducing this bill with the hope that it will allow these two parks to retain the revenue necessary for maintenance in order to continue to attract visitors from around the world to these historic sites of California.
I ask unanimous consent that the text of the bill be printed in the Record.
Mr. President, I am pleased to introduce legislation that clarifies the meaning and scope of the Alien Tort Statute.
This 200-year-old law has spawned dozens of legal cases involving U.S. multinational companies, human rights groups, foreign plaintiffs, the State Department, and millions of dollars in litigation costs. Numerous companies in California are in the midst of these lawsuits as defendants and it is my view that legislation can help refine and improve the law.
Judges have grappled in interpreting and applying the statute for years now without a consensus view emerging. I think it would be fair to say that confusion reigns supreme when it comes to alien tort suits.
Given this opaque legal picture, last summer the Supreme Court ruled on a case, Sosa v. Alvarez Machain, in an attempt to reconcile conflicting decisions from judges across the country.
The Court's June 2004 ruling was notable, for embracing certain principles that will help guide the Judiciary branch on alien tort claim issues but for leaving many questions unanswered as well.
It held that a substantive, legal basis exists for foreigners to sue U.S. individuals and corporations over alleged human rights violations occurring in overseas locations. The Court essentially affirmed that a limited, implicit sanction for courts exists to decide certain alien tort claims.
At the same time, the opinion provided a wide berth for what the claims might actually be. The Court hedged on key issues, without clearly demarcating what suits ought to go forward under the statute and which ones should be summarily dismissed.
In particular the ruling did not address: which international law claims by foreigners should be heard in a U.S. district court, and the standard of liability for U.S. companies facing these human rights charges.
To clarify these areas, the Justices wrote that they would welcome ``any congressional guidance'' on the breadth of the statute. During oral arguments a number of the Justices appeared to concur that a legislative approach would make sense. One Justice even commented that ``I just wonder if it isn't wise to . . . let Congress have a look at this thing.''
Those views were echoed by a Washington Post editorial that followed soon after. The paper stated that the alien tort law has ``formed the basis for litigation against U.S. companies involved with nefarious regimes abroad. And while horrid conduct by an American company ought to be, where proven, grounds for action in American courts, the parameters of such litigation are surely a legislative question, not one for the freewheeling discretion of judges. . . . But the court left open the possibility that at least some of these suits can proceed in the absence of further congressional action.''
The Court's perspective, along with the Post commentary, indicates, at least to me, a sense of caution about imposing by judicial fiat action that is better left to consideration and refinement by the Congress.
The Court's hesitation to legislate from the bench shifts the responsibility to this body, I believe, to pass legislation that settles on a reasonable legal means that plaintiffs and defendants alike can rely on to litigate their differences.
I believe the measure we are introducing today accomplishes this basic and important goal.
Right now, courts are essentially adrift in terms of being able to pinpoint the underlying meaning, scope and intent of this 200-year-old statute. In its entirety, it reads: ``The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.''
The economy of words makes the law abstruse and subject to varying interpretation. And complex, lengthy and unnecessary litigation has burdened the courts as a result.
This new bill will establish a fair, legal basis for filing suit under the Alien Tort Statute (ATS). And it will have the added benefit of explicating the law's dual jurisdictional and substantive nature.
The measure: specifies a legal standard convicting defendants of wrongdoing if they directly participate with specific intent to commit the alleged tort; codifies international claims under the Alien Tort law to include genocide, torture, slavery and slave trade, extrajudicial killing, and piracy; expands on existing statutory law, the Torture Victim Protection Act; states that Federal courts shall not proceed with tort claims when the President adequately certifies that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the U.S.; maintains that every effort should be made to try these cases in the country of origin before granting jurisdiction in U.S. courts; invokes a 10-year statute of limitations on ATS charges filed against U.S. multinational companies; and disallows contingency fee arrangements for legal representatives of plaintiffs or defendants.
The Supreme Court's delineation that the Alien Tort law is jurisdictional in one sense, but recognizes a restricted category of substantive claims encompassed by the law of nations, leaves many unresolved questions.
The historical origins of the ATS, passed by the First Congress as part of the Judiciary Act of 1789, suggest that certain offenses relevant to that period in American history--piracy, infringing the rights of ambassadors, and prevention of safe travel abroad--were meant to be prosecutable. But Justice Souter's Alvarez-Machain opinion notes that a slim legislative history of the statute makes it difficult to surmise the law's true intent.
At the same time, Justice Souter opined: ``Still, the history does tend to support two propositions. First, there is every reason to suppose that the First Congress did not pass the ATS as a jurisdictional convenience to be placed on the shelf for use by a future Congress or state legislature that might, some day, authorize the creation of causes of action or itself decide to make some element of the law of nations actionable for the benefit of foreigners. The anxieties of the preconstitutional period cannot be ignored easily enough to think that the statute was not meant to have a practical effect. . . . The second inference to be drawn from the history is that Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations.''
The opinion ranges further, that, such a ``modest set of actions'' indeed applies to current times, not merely offenses grounded in law two hundred
years ago. The critical portion reads: ``Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with specificity comparable to the features of the 18th century paradigms we have recognized.''
I am uncomfortable with such a nebulous, open-ended legal approach permitting courts to entertain suits based on a ``norm of international character'' and ``specificity'' consistent with crimes of early American history. Adjudicating cases based on these broad historical and legal precepts is admirable. In practical terms it remains very difficult.
The Congress ought to weigh in and play a constructive role. Without legislation, judges will continue to reach markedly different conclusions under the law, based on arbitrary interpretations of case- specific facts and other considerations.
Let's take the legal mystery out of the statute and what qualifies as an alien tort and replace it with something that is concrete and appropriate for the times.
At the heart of this legislation is codifying a class of violations of international law that will discourage defendant companies from consorting with human rights violators in any respect. They will be held liable if they do so by a specific standard that judges whether they intentionally and directly caused certain violations of human rights.
A plaintiff victim will be able to vindicate their rights by filing an express statutory cause of action based on a half dozen egregious wrongs. Regardless of the foreign policy and trade implications, defendant U.S. companies will be held fully accountable under the bill for bad corporate behavior in their overseas business operations.
That is as it should be. Certain alien torts in violation of the law of nations ought to be cognizable and this legislation ensures that result. Moreover, the fact that specific crimes are made actionable and enforceable will aid human rights organizations in their fight to strengthen the deterrent effect of the law for potential violators.
Regarding the defendant perspective, in one friend of the court brief submitted in the Alvarez Machain case, the argument was made that ``. . . companies face enormous uncertainty regarding the scope of potential claims under the statute. . . . Because ATS cases are based upon an implied cause of action without any clear standards of liability, there may be little companies can do to protect themselves against potential claims, short of simply ceasing to do business in the many nations whose human rights practices come up short against evolving Western ideals.''
The business community ought to embrace this legislation precisely because it wipes away this uncertainty. The best way to encourage U.S. multinationals to invest abroad is: 1. by specifying a universe of the most egregious human rights violations that they may be held liable for and 2. offering a clear, understandable legal standard that judges their actions accordingly. This legislative measure tackles both issues head on.
There are estimates that dozens of existing alien tort suits claim damages--collectively--in excess of $200 billion dollars. That's an extraordinary sum that rightly concerns the U.S. business community, particularly given numerous inconsistent federal courts verdicts handed down in the past two decades.
This legislation deters private plaintiffs from filing sweeping and specious claims simply because a corporation has a U.S. legal nexus and deep pockets. Yet, it expands the basis for foreign plaintiffs pursuing certain international law causes of action in federal court by codifying their rights in a judicious way.
While some in the U.S. business community would prefer that the Alien Tort statute be deleted from the U.S. Code altogether, I would respectfully disagree. A fair compromise that balances the interests of U.S. companies and human rights organizations is what this legislation seeks to accomplish.
The Congress has waded into this debate before, passing the Torture Victim Protection Act in 1991, and this new legislation contains many similar elements: a statute of limitations, a statutory exhaustion provision, and specifying torture and extrajudicial killing as within the adjudicatory discretion of a district court.
There is precedent, then, for the Legislative branch acting to provide civil redress for victims of torture. Asserting extraterritorial jurisdiction under the ATS, for torture and other jus cogen violations, has a firm footing in American jurisprudence.
The legislative history of the TVPA is important because it spells out the constitutional grounds justifying that statutory law and this new legislation as well.
The Senate Judiciary Committee report on the TVPA states as follows: ``Under article III of the Constitution, the Federal judiciary has the power to adjudicate cases `arising under' the `law of the United States.' The Supreme Court has held that the law of the United States includes international law. . . . Congress's ability to enact this legislation also derives from article I, section 8 of the Constitution which authorizes Congress `to define and punish . . . Offenses against the Law of Nations.' ''
Existing case law confirms the point that Congress has given the federal courts the power to interpret and apply international human rights law. The notable Paquete Habana decision states, in part, that ``international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. . . Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation [the Torture Victim Protection Act] supplementing the judicial determination in some detail.''
The view expressed in the Alvarez Machain case last year was much the same, that no development in the last two centuries has ``categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law.''
Different precedent, Tel Oren v. Libyan Arab Republic, also posits that civil liability should ensue from certain violations of international law, suggesting that the ``limits of section 1350's [the ATS] reach'' be defined by ``a handful of heinous actions--each of which violates definable, universal and obligatory norms.''
This legislation fills that legal vessel with the most egregious crimes: genocide, torture, slavery and slave trading, extrajudicial killing, and piracy. These jus cogen offenses are singled out through 1. stare decisis, 2. the Restatement (Third) of Foreign Relations Law, 3. academic writings, 4. official annual human rights assessments from the State Department and 5. among the writings and publications of many human rights and international law advocacy groups.
Congress is in the best position to make the determination of what falls within the ambit of the statute, not judges across America who lack expertise, time, and resources to assess what constitutes definable, specific, universal, and obligatory norms of international law. The bill, I would submit, represents a good faith effort in permitting these tortious acts, all firmly established and well defined in international law norms, to be prosecuted in U.S. district courts.
I was interested to read the views last year of the head of the National Foreign Trade Council, William Reinsch, that ``these cases are going to end up in the Supreme Court . . . and the Court will over time end up defining what in its judgment constitutes the law of nations and what does not. But that seems to us a fairly circuitous way of doing things.'' I would concur, particularly since the Supreme Court's decision last year in the Alvarez Machain case did not clear up the inherent vagaries in the law.
A significant provision in this legislation creates a standard of liability that requires plaintiffs to show that a defendant directly participated with specific intent in carrying out the alleged tort. In my view, we need to deter legal fishing expeditions, whereby plaintiffs come to the bar with flinty facts backing weak charges.
Their real intent, it seems, is to rely on an extensive legal discovery process to uncover matters that embarrass companies and delay their business plans.
In the groundbreaking 1980 Filartiga v. Pena-Irala case, for example, the threshold requirement laid out was that the offense needed to be ``clear and unambiguous'' to be viable under the statute. Succeeding cases have affirmed a standard essentially requiring proof of a defendant aiding and abetting the worst human rights violations. This bill replaces the current aiding and liability standard for good reason: these foreign-based claims demand a particularity of facts that is both strong and specific.
I would submit that the existing ambiguous grant of jurisdiction needs more refinement to provide judges legal bright lines for deciding these cases. My bill offers precise, and fair, treatment for which cases get standing in a U.S. court.
A common theme in dozens of cases alien tort cases is whether the facts and law combine to present a nonjusticiable political question. Each cause of action is obviously different, and whether the matter ought to be under the province of a different branch of government requires careful analysis.
I would certainly agree that certain prudential doctrines, act of state, political question, foreign sovereign immunity, forum non conveniens, and considerations of comity among nations, at times can be appropriately invoked to limit jurisdiction.
Part of that consideration can usefully come from statements of interest and certifications submitted by the Executive branch; for that reason, the legislation I'm offering preserves a suitable role for the Executive branch to weigh in. If a judge determines that a certification offered by the State Department adequately justifies that harm will come to U.S. foreign policy interests if an alien tort suit proceeds, then dismissal is warranted.
In regards to restricting the statute of limitations to ten years, equitable tolling considerations should be explicitly considered in interpreting provisions in the legislation. There are numerous factors that give rise to equitable tolling and long-established judge-made doctrine in this area is not inconsistent with the goals of my bill.
Complementary legislation which I raised earlier, the Torture Victim Protection Act, upholds the principle of equitable tolling. The Judiciary Committee report on that measure notes some common examples:
``The statute of limitation should be tolled during the time the defendant was absent from the United States or from any jurisdiction in which the same or a similar action arising from the same facts may be maintained by the plaintiff, provided that the remedy in that jurisdiction is adequate and available. Excluded also from calculation of the statute of limitations would be the period when a defendant has immunity from suit. The statute of limitations should also be tolled for the period of time in which the plaintiff is imprisoned or otherwise incapacitated.''
I would submit that all of these listed circumstances, and others, are sufficient to suspend the running of the time under my legislation.
Let me conclude by referring back to one of the Supreme Court's foundational points in the Alvarez-Machain case that ``despite considerable scholarly attention, it is fair to say that a consensus understanding of what Congress intended has proven elusive.''
The 33 words contained in the law remain a ``legal Lohengrin'' since ``no one seems to know whence it came'' added a judge hearing a different case some years ago. As a result, costly, complex litigation proceeds forward across the country.
Courts deserve guidance from Congress about how to treat and interpret the statute, particularly in light of the growing importance of international trade and commerce. In a major address Supreme Court Justice O'Connor recently observed that ``international law has emerged in ways that affect all courts, both here and abroad. The reason is globalization. Its importance should not be underestimated. Thirty percent or more of our gross domestic product is internationally derived.'' Yet these particular suits, brought by foreigners for massive monetary damages, threaten the international economic activities that are important to sustaining the American economy.
The suits should be able to go forward, but judges need better legal tools to make heads or tails of the cases that come before them hence the motivation for introducing the Alien Tort Statute Reform Act.
With full understanding of the Supreme Court's admonition to act with judicial caution in framing the alien tort statute, I believe it is time for Congress to bring clarity to the law and this proposed legislation does so.
I look forward to working with colleagues on the Judiciary Committee, through the hearing process and other means, to give this matter serious consideration by the Legislative branch.
I ask unanimous consent that the text of the legislation be printed in the Record.