Transcribe your podcast

Listener supported WNYC Studios. Wait, you're OK? You're listening to Radiolab Radio from WNYC. This is Radiolab, I'm Jad Abumrad. OK, so. Supreme Court, it has a lot on their 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 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 allege that they were child slaves on farms that supplied cocoa to these companies. Should Nestlé and Cargill be responsible for that? So that was the question and a couple of years ago on our spinoff series about the Supreme Court, more perfect, we actually reported on well, there's a whole cluster of these cases that all poke at this question. Should U.S. companies be responsible for human rights violations that happen in other places that are not the U.S.?


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 the 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. United States, we give the Supreme Court the power to find justice for people they come with what? People who have been abused and manipulated. Horrible. I mean, they they knock on their door. That power extends beyond state borders. They can whisper potentia, sometimes even beyond national borders with cheese.


I show you who I am. Question is, how far do we want it to go?


Should our Supreme Court be the Supreme Court of the world, the honorable, the chief justice and the associate justices of the Supreme Court of the United States? Oh, okay, okay, okay. Persons having business before the honorable the Supreme Court of the United States are admonished to draw there. And if there are no. States in this horrible for. Yes. OK, so I grew up at a time when a lot of people genuinely saw America differently than they do now.


This is the 70s and 80s, Carter Reagan years. And there was a sense, if you were new arrival, that America was special, exceptional, that we held the world to a higher standard.


Certainly what brought my family to America. OK, 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 and 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 tiny law.


It seems to ask some pretty big questions about who we are, who we want to be. Story comes from two CPI's Kelsey Padget High and Kelly Prime Capi to keep one, I believe you are now KPCB one. OK, you've ascended the ranks. I am now two or three year old gyppy one seven.


Stop it, Capi. Twelve. OK, so Guelleh start us off. Yeah. So the story begins appropriately enough. Not in America, but it starts in 1976 with this woman I have to get used to.




OK, so I guess the first thing if you could just introduce yourself. Well my name is Dolly Philadelphia. I am from Paraguay. Paraguay. It's a small country right on top of Argentina and Ali's family, the full Artigas. And they are a pretty big deal over there. What happened in my family was that my grandfather was very rich.


The Florida guys made their money exporting tobacco to Europe for big cigarette companies like Xuetong.


He was a family that owns a beautiful house in the countryside. Lots of land to airplanes.


Now, this could have been life, but he was going to relay that, and it wasn't because of her father, your father, what's his name or what oil will and what 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. They all were short of 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 forty seven thousand 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 Stroessner.


He was called the Pulpo the octopus because he said he had arms and tentacles that reach into everybody's lives there in the country. That's Rene Horst. I'm a professor of Latin American history here at Appalachian State University.


When I was growing up, Rene, live next door in Formosa, Argentina, right across the river from Paraguay.


And Rene says at that time, both Argentina and Paraguay were part of this big network of dictators all across Latin America, and it was called Operation Condor.


Operation Condor was a network that linked together military dictatorships of Latin America. So Brazil, Argentina, Chile, Bolivia, Uruguay, Paraguay. And it was all masterminded by Pinochet in Chile.


Rene said that Operation Condor was a lot like a spider web with Pinochet 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 out and stuff you in the trunk of a Ford Falcon car and you would disappear forever. My father used to tell the Pessah, don't don't vote for astronomy.


So this was like the context behind Dr. Phil Artigas Rebellion Daily said you travel all over the world giving talks, trying to show everything, what the astronomer 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 him a thing. Dolly tried her best to ignore all this. We didn't get along 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? Asuncion.


She worked to put herself through school and then returned. And Alec followed me after and then says she worked to put her two siblings through school. Her sister only at the time was 14 and her brother Julito was 17.


Love don't love her little. He was her favorite, well, it'll look like my mother green eyes, Castaño your hair like her.


I know that he had a lot of girls that crushed on him. This is Dolly's daughter, Paloma. Very handsome. Yes, but he wasn't a player or anything.


And what was what was her little personality like? Was he loud? Was he quiet to see those people that say things? And you laugh because he's so funny all the time, those people that they joke. Comedian, comedian. We always saw that he would become a comedian. He was very funny.


So you two are close. Very close. So that's the backdrop. Nineteen seventy six dollars in the city with her two siblings or her dad's out in the country drumming up opposition to the regime at that time, he hetal many friends that he feels that he was being followed.


He won at the last because we always tell him to be careful. Even my father used to tell him, be careful because you are my son.


And at that time in Paraguay, it was well known that there were spies everywhere.


They put away put away you, especially when I need a person with hairy feet.


Hair is called a pedo where it's a nickname for informers of the regime.


So things were already tense. And then on March 29th, 1976, Dolly and her siblings are turning in for the night around 11:00, maybe Dallion only sleep in one bed and to half his room.


And so he went to rescue Steve and then go Naegle night. And what happened was that we we here in the middle of the night, maybe 3:00 was.


They're bumping in the door with their shoes and she wakes up like, what's happening? She throws on a coat over her nightgown to cover myself and she goes to the door where she finds a cop. You say you have to come with me. That is a little problem with your brother. I spend your house at Pinhas house. Remember, that name is Spector Medical. You have 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 chilly night in her nightgown.


The street was full of policemen car. The officer who was at the door walked her over to Penny's house into the house, down a long hallway that she says was lined with even more policemen. There maybe was, I don't know, 70 of then. Thirty five and thirty five, one close to another, she says. As she walked down the hall, the policeman 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 saw her lead body. He was lying on his back on a mattress and this gorgeous human being, my brother was so beautiful.


His body is covered in gashes, you can see where he's been stabbed over and over again and maybe tied up, they burn here, they cut him.


I found the D out D there was an electrical wire attached to his genitals most rosoff.


Terrible, terrible. Doo doo doo, don't know how to pray, how how other human beings can do that to another one who never did anything to you to to. I don't know.


Dolly says she bolted out of the room and immediately ran into Inspector General Penya. He was standing in the doorway. I saw Penya in my way, Penya told me, you better shut up.


Here is the thing that you deserve and you better keep quiet because next time will be you, something like that. See, he told you next time it would be you and your family.


You better shut up. I say, I wonder if you don't know why you feel that you made me shut up today, but tomorrow would will know what you did to my brother. Over the next three years, the family tried to get justice, they sued Pincham, the Paraguayan courts, but their lawyers were threatened. One was disbarred when Dolly and her mom testified against Penya, they sent us to jail.


So we went to jail when Dolly and her mom got out of jail. They raise publicity and was showing what they did to my brother. They convinced reporters to write newspaper articles to call for an investigation. But before anything could happen, Penya, he disappeared. He vanished. He fled the country altogether. So the question is, if your doli what do you do? Your brother has just been brutally murdered, you know who did it. But, you know, you can't get justice 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 when I say we have to do something?


Fast forward to 1979. I moved to Washington, Dallis, living in D.C., 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, NGOs just trying to find out at least where Penya is living.


I already have communication with it, but I living there. Finally, one day that spring, she got a phone call from one of those connections.


They found Banyo. They told me that Penya was living in Brooklyn.


She'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 they wanted justice. How do you get justice? In this case? I was desperate. I got a Paraguayan responsible for the death of another Paraguayan in Paraguay. Impossible to do anything that will happen in Paraguay even if he did something wrong. Paraguay, which it seems like he did. There's not like this has nothing to do with America.


Nothing when I see we have to do something.


So I was looking for help. Daily contacts, a lawyer who referred to another lawyer referred to another lawyer who gets her in touch with this guy, Peter Peter Weiss, Weiss Center for Constitutional Rights for Constitutional Right.


Peter says even before he showed up, we were trying to figure out how to sue people committing crimes against humanity and war crimes. For example, one hundred and four unarmed Vietnamese women, children and old men were massacred over a four hour period by US troops. This was around the time of the My Lai massacre in central Vietnam.


When that happened, my colleagues at the center and they've been wondering, was there a way for them to bring a case against the US military on behalf of one of the victims in an American court if the crime was committed abroad?


So I came and met Peter and asked for help.


So I called an emergency meeting of the staff and he asked them, like, 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 torch statute.


The what? The Alien Tort Statute.


And it seemed just right for that case.


I don't know how many hours and hours and hours and hours they tried.


Finally, they found these law that they used to use against their protests. They Pirotta pirates. Pirates. Thank you. Pirates.


Yeah. What would pirates have to do with anything?


Who you want to go straight to me or do you want to go? Kelly, it's a handoff. I want to someone to answer my question. Sure.


Who are you, by the way? I'm Kelsey Padgett, a reporter.


And yes, this story has to do with pirates. Definitely. We'll get there. But before that, there's this even crazier background.


OK, you got to you've got to buy it. You've got to go with me on this journey because, you know, it's it's it's it's a lot different than the rest of the story. Sorry to go on this journey.


You take my hand, we go into Philadelphia, we from p h oh.


A period all the way back in 1784, granola 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 bite of a thief. Yeah, here's a situation. It's 1784, you've got this guy, Mr. De Longchamps, Charles Julian de Longchamps, and he's a French guy and he's living in Philly.


He apparently was an officer in the French cavalry regiment and a nobleman by birth. By the way, some people didn't like him. Thomas Jefferson said he's in a, quote, obscure and worthless character.


OK, why why do you say that 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, heiress to a competent fortune. Oh, yeah. And her friends disapproved.


Very much so. And so they started circulating rumors around town, around Philadelphia that Longchamp was a liar, that he was not of noble birth and wasn't even an officer, that he was just probably gold digging, you know, since she had this money.


I see the Longchamps is really mad about this. He was incensed and he put on his uniform that he stormed over to the French embassy. He goes to the embassy.


And there he spoke with Francois Barbe Marwah, another French guy who was the embassy's first secretary. OK, here's an aside.


Yeah. Marwah later was Napoleon's minister of finance. Oh, and he negotiated the Louisiana Purchase.


But that's just an aside point is Mahboba is like an important dude.


But, you know, the other French guy, Dulong, the maybe scoundrel guy, 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 this 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 Marwah refused. We don't know why.


At any rate, in response, Longchamp shouted at Marwah, I'll translate it. I will dishonor you.


And then he called me. 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.


In fact, everything we're talking about today goes back to this little confrontation. How on earth was this big deal back in the day? Like it's why a Hamilton dies, right? Something like calling someone a laughable scamp 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. Marwa 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, you know, across the seas to France and 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 their Longchamps. And the Pennsylvania Executive Council agreed, but the judges refused. They say we're not gonna 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.


Uh, so really escalate. Yeah. Becomes this huge thing.


And you got to keep in mind, at that time, the United States was a 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, a little country.


By the way, the Dutch ambassador was furious, too, because he said, if you don't punish Longchamps, I'm leaving the state. He actually threatened to leave the state that 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 blowjobs 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 this a situation outside of the United States.


So I step in there and I'm suddenly under the rules of France. Yeah, yeah. That's the argument.


You know, did we have jurisdiction over that space? Did we not point? Is that the new U.S. 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, no law. He's got no laws to charge this guy under. And then it occurs to him, you know, there 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, sort of pillaging, plundering, killing, and they are not really subject to any one 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 company generous that same Lemoigne history professor at Yale University.


The phrase in Latin is hostess who generous, which means the enemy of 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 to stop or punish the perpetrator of such crimes because they're just so bad. And piracy was the classic example. OK, 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 insulter 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, Dulong Trump, 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 finding a hundred French crowns and two years in jail, two years, two years for saying I will dishonor you.




OK, this move by the judge, it basically works.


Mahboba in France, feel good. Their honor has 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 only towards 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 U.S. civil courts. What you're saying there was a law from the beginning that allows non US people to sue each other for non U.S. crimes in U.S. courts. Yeah, that's so weird.


But but like the thing is, this is this is Kelly again, when it comes to this law, like forever, no one actually used it. 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.


Like 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. Yeah.


And more generally, the prevailing idea at the time was that. Internationally, we should kind of stay in our lane, like if you're going to come into our country and mess with our citizens, like you're going to do something about that.


But if you want to 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, 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 Statute 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 is 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 invade the Catholics, Catholics invade the Protestants, 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 Two, really, but the Holocaust changed everything.


No words can express the world discussed at Germany's organized conference. One of the defenses that Nazis gave to the specific charge of massacring Jews into the court is that they were protected by the principle of sovereignty. That was considered an unacceptable argument. And 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 the first. On which the organized community nation made the Declaration of Human Rights and suddenly all eyes turned to human rights. Look, it's a golden moment, Professor Samuel Mind 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 these gentlemen, a lot of famous people, you know, it's. Joan Baez and a lot of, you know, rock stars and pop culture icons get involved. Amnesty International Amnesty wins the Peace Prize. Nobel Peace Prize winner, 1977.


As long as I am president, Jimmy Carter's inviting the government of the United States, dissidents from Eastern Europe to visit the White House and you throughout the world to enhance human rights.


It's a 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 Dolly, so I came and met Peter and Peter Weiss, Center for Constitutional Rights, trying to figure out how to bring this case to U.S. 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, somebody calls an emergency meeting of the center's staff.


Basically, their idea was that some crimes like piracy were so bad that the borders didn't matter like anyone should be able to prosecute them. And the U.S. 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 thought we were slightly insane. Did your boss say, like, what you people said, you're never going to get anywhere with this. It's all about PARIVAR. So Dallis lawyers, they file their papers and eventually this case gets in front of a federal circuit court, the federal court, eastern district, Brooklyn. And the day of the trial, you saw Penya in the elevator at court?


Yes, I met him in the elevator and I asked him, why do you do that to my brother? Why do you do that to him? Why? He couldn't answer. He was shaking. And they were in the car, he said, by the way, and I had to so what in the court they submitted autopsy reports.


We bring the photographer from the photographer pictures.


We bring a picture of him with démarches. Cholita was in them, outrating their feet and their 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 before he got out of the courtroom. He turned around and said. Interesting case. Hmm. So what happened? Well. The judge ruled against them, but the appeal goes up to the 2nd Circuit and ultimately a judge orders Penya to pay 10 million dollars to and her family.


They won. Yeah.


What happened was like a miracle. I was able to get justice in the United States.


In the Philadelphia case, they convinced the 2nd Circuit that the Alien Tort Statute, it wasn't just for stuffy diplomats anymore, was for human rights, period.


They say, look, torture is now like piracy and this ruling sets off. Then we're off to the races. An explosion of cases. I mean, in nineteen eighty four, you had Talleyrand, the Libyan Arab Republic and these, I believe, eighty five, the Soviet Union then of the USSR in eighty seven, there was a case from Argentina called Court TV, Suarez, Mason. He swam there for nineteen ninety one, Guatemala, 1993, Ecuador and Peru and to ninety five 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.


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 Bellinger, legal adviser for the Department of State from 2005 to 2009 before Florida.


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 will continue in a moment. This is Marnie Campbell from the beautiful banks of Lake Washington in Seattle, Washington. Radiolab 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 W w w dot Sloan dot org Science reporting on Radiolab is supported in part by Science.


Sandbox is Science Foundation initiative dedicated to engaging everyone with the process of science.


This is Radiolab, I'm Jad Abumrad. 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 story. So let's just get back to the two CPI's Kelsey Padget, Kelly Pratt. Here's Kelly where we left it.


Florida just happen. 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 Bellinger again.


Great Britain, Australia, Germany, Switzerland would regularly complain to me as the legal adviser of the State Department that they thought that the Alien Tort Statute was in fact itself a violation of international law because it allowed U.S. 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, look, 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 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 it Dolly'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 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 crime. 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, you know, 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 Cancer Wiwa, I mean, I grew up in a political household. My father was was a national figure because he was a writer and a commentator.


And newspapers, just like Dolly Kin, had this famously outspoken dad, very much a 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.


In the 80s and 90s.


Nigeria went through a series of military coups and kin'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 birth, his columns and his on his television program, the inequalities of Nigeria's political system.


The situation at the time Nigeria was that you had tons of oil under the ground, an estimated 30 billion dollars 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 supplying the mustard gas and generating electricity.


Problem was. The people who lived on the land where the oil was there really poor. And they weren't given barely any of this money. And against that, to add insult to injury, unchecked oil production was creating an environmental disaster in our community.


What we are working on now is crude oil, and this land is lost for the next 20 years.


This is a clip of Ken's father showing a reporter ruined farmlands. An oil pipe burst here in 1970.


Oil still seeps to the surface.


Nothing is going to grow here. You know, it's a land that's been devastated by oil production. In some places, surface water contains 900 times the acceptable 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 and they decided, I think, in the late 80s that he was going to take to the streets.


And indigenous people have been cheated through laws and in 1993, organized Ogoni day where 300000 people came out to protest.


We are going to demand our rights peacefully, nonviolently, 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.


Kin's dad was thrown into jail. And Ken Jr., he he begins frantically traveling the world, trying to raise awareness about his dad's situation, to publicly put pressure on on General al-Bashir, the Nigerian head of state.


And on November 10th, 1995, two years after his dad had been arrested, 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 and walking, walking across one of the streets.


And I just saw the sunset that evening. It was a beautiful sunset, actually, a big red sun just sinking into the bay and. I felt something go in my chest, and I think I knew. I knew then that something had happened and can sorry we were right. A human rights activist campaigner on behalf of his fellow tribesmen hanged this morning in the Nigerian prison. King says that world leaders spoke out. The prime minister of England, even Nelson Mandela, unfortunately, was to no avail.


Nothing happened. But it's difficult to know what to do with all of that.


How do you how do you get justice for what? What what happened to your father? You could argue, and this is what lawyers later did argue, that the only way to get justice was, was not to go after the regime, but to go after Shell and its parent company, Royal Dutch Petroleum, in going after Shell. They claim that they helped the Nigerian government do some horrendous things. They claim that Shell aided and abetted the Nigerian government and kidnapping and torture and so directly did the stuff or aided and abetted.


So the claim is that they would supply guns, that they actually supply guns?


Well, actually, the allegation the claim is that it's just ammo.


But still, that's that's not a right. That's that's and there were other things, too, like they claim that Shell would call in this sort of special forces unit of the Nigerian government that that colloquially everybody was calling the kill and go mob. Oh, they're claiming Shell is calling it 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 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 Tort Statute.


They allege that Shell was essentially the hostess who managed generous, the enemy of of the human kind or race and therefore could be tried in American courts.


Yeah. And as you can imagine, they got pushed back in this case, got challenged all the way up to the Supreme Court.


Will hear argument first this morning in case 10, 14, 91 Theorbo versus Royal Dutch Petroleum. OK, 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 full article 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 Philadelphia decision and saying, you know, we gave the stamp of approval. The courts have said this is OK. There were certain categories of offenders, the word 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 Tort Statute.


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 human rights norms are defined by actions.


They're not defined by whether the perpetrator is a human being or a corporation.


And if Ladka says that tortures are today's pirates, what about a group of torturers?


What about pirates and corporate, do you think in the 18th century, if they brought Pirates Incorporated and we get all their gold and the Blackbeard gets up and he says, Oh, it isn't me, it's the corporation, do you think that they would have then said, oh, it's I see 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 Breyer powerfully.


The question to me is, who are today's pirates? He says Adolph Hitler was like a pirate. If Hitler is the pirate, who is there, the dread pirates of our time.


And we have treaties that say there is universal jurisdiction. The alien, especially as it was applied to human rights cases from Florida on, 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 fought the argument went extremely well and we really did not see how we should lose.


But then it was Schell's turn.


The trouble is that the choice to pursue corporations sameem mine again 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 Misselling. Kathleen Sullivan, Mr. Chief Justice, and may it please the court. Kathleen Sullivan got up there, she and the defense team basically sidestepped 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 ATMs 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 court can be open to try any accused law of nations violator for anywhere in the world, regardless of the place of the conduct the other nations of the world might seek 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? And inform your decision today? And the second point made by Shell through 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 like 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 on to foreign countries.


And finally in the statement of the case is really striking this case on the most basic level.


What does the case like that what business does a case like that have in the courts in the United States? How is this any of our business? No connection to the United States whatsoever.


It's a point that really jived with Justice Alito.


Why does this case belong in the courts of the United States? Well, that's nothing to do with the United States and 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, 14, 91, Chiodo 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 just a story wrote in 1822 that no nation has ever yet pretended to be the customs marom 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.


And we see no reason, he says, that extraterritorial conduct conduct that's outside the United States isn't going to count it. 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 in my mind, and I'm wondering if you would agree or you think it's stupid. Um, the the sense that I have with the ATSI is that it came about at a moment of great idealism and hope. Mm hmm. And now after the fog is cleared, so to speak, it seems to represent not just hope, but naiveté, the fact that we think we can change the world, that it's that easy.


The ATSE 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, it's I think it's transformed our our idealism. But maybe the the disaster in Cuba 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 Moine 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, which was the first nation in the history of the world to be founded explicitly on such an idea, which is 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 avoid the question, what's the best bang for our buck? It's just not proven yet.


That is it is that all you really had was a few individuals who won cases. And by the way, most of them never got any money. Really? Yeah. Dolly didn't get paid. You know, after she won, Penya fled again.


And so in a way, the Alien Tort Statute didn't have far to fall to begin with. So they're just symbolic victories.


You could definitely see it that way. Do you feel like you got justice? What did you get out of this? Yes, yes. But darling, good doesn't. You didn't get any money back, correct?


Yeah, but it never was for for for the money, Lisa. The money won't pay. Don't bring me back or leave, though, I find.


That will lead to a no normally otherworldly. I know how to say that they need some time, but that there was a reason. Yes, yes, I lost several there, but when we won the case here in New York and you know, this day I get so many other brothers and sisters through all over their war that they find that a little deviant diet.


Carlito leaves for the. Producers Kelsey Badgett and Kelly from. So there you go. This is a story that gives context to a case that the Supreme Court just heard last week regarding the company's Nespoli 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. We'll wait and see what they rule. Until then, I'm Jad Abumrad.


Thanks for listening. OK, more perfect is produced by me, Jad Abumrad with Suzy Lichtenberg, Julia Longoria, Kelly Prinzhorn, Rummies firm Alex Overington and Sara. This episode was produced with Kelsey Padget and significant editing Joujou from Jenny Lawton.


Take a Jenny.


We also had help from Ellie Mistal, Christian Farias, Linda Hirshman, David Gabal and Michelle Harris. Supreme Court audio is from Oja, 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 Sahraoui Jr., who appears in this episode, passed away in October 2016.