Suing Repression's Service Provider
by KAVEH SHAHROOZ in New York
28 Aug 2010 19:27
Nokia Siemens, meet the Alien Tort Statute -- a U.S. detour for justice.
[ briefs ] On the phone, Ali Herischi, a lawyer in Maryland, is talking tough: "Nokia's decision to give surveillance technology to Iran is like giving a gun to a person that you know wants to shoot somebody." His law partner, Edward Moawad, thinks about it for a moment and tries to firm up the analogy: "It's more like giving a bullet to someone that already has a gun." The two men have been so busy planning the case that they haven't yet had time to figure out how to most dramatically analogize the defendant's action.
Herischi and Moawad are the two lawyers behind an unusual and potentially devastating lawsuit against Nokia Siemens, the Finnish-German telecom giant. As featured in Tehran Bureau last week, the suit has been brought by Mehdi Saharkhiz on behalf of his father, Isa (pictured). The elder Saharkhiz, an outspoken reformist journalist in Iran, was arrested shortly after the start of the post-election uprising in the summer of 2009. Since that time, authorities in Iran have reportedly subjected the 56-year-old former member of the Khatami administration to repeated torture. He has been charged with spreading propaganda against the state and offending the government's senior officials, including the Supreme Leader. Saharkhiz denies the charges.
The new lawsuit alleges that Nokia Siemens knowingly provided the Iranian government with the surveillance technology which it employed to track and arrest dissidents like Saharkhiz; hence, the lawyers' struggle to find an analogy about providing guns to known criminals.
This isn't the first time that Saharkhiz's case has been heard abroad. Earlier this year, the United Nations Working Group on Arbitrary Detention found the journalist's incarceration to be "arbitrary" and asked Iran for his "immediate and unconditional release" and guarantee of a "fair trial according to international standards." The U.N. body also asked Iran to pay reparations to Mr. Saharkhiz for his arrest and detention.
Since the launch of Herischi and Moawad's action, the web has been abuzz with stories about the suit. Nokia has hit back, claiming that the service they sold was "lawful interception technology." The company has also stated its belief that the lawsuit has been "brought in the wrong place, against the wrong party and on the wrong premise."
Much of the discussion about the lawsuit centers on the politics behind the claim and its potential business impact. Maybe because of its technical nature, the remarkable jurisdictional aspect of the claim -- how an Iranian journalist can bring a civil suit against a European company in a U.S. court for harms alleged to have been committed by the Iranian government on Iranian soil -- hasn't received widespread attention.
But the history of the law that might permit Saharkhiz's action is fascinating in itself. And it might give Iranian victims of human rights abuses a new avenue by which to hold Iran's leaders accountable.
No one knows for sure why, in 1789, the authors of the U.S. Judiciary Act decided to include the following provision in the law: "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 provision, now known as the Alien Tort Statute (ATS), was so misunderstood that it remained obscure and unused for almost two hundred years.
Suddenly, in 1980, the ATS reappeared in dramatic fashion and shook up the international human rights landscape. In Filártiga v. Peña-Irala, a case with facts tragically familiar to the families of Iranian dissidents, the U.S. Court of Appeals for the Second Circuit accepted the argument that the ATS could be used by a foreign citizen to bring a civil action in an American court for human rights violations with no territorial connection to the United States.
In the late 1970s, the government of Paraguay kidnapped, tortured, and executed Joelito Filártiga for his political activities. When the Filártiga family brought a murder charge in Paraguay against Peña-Irala, their town's police chief, the case went nowhere. In fact, their lawyer was arrested, threatened, and disbarred. A few years later, the Filártigas moved to the United States and accidentally discovered that Peña-Irala, too, had moved there. They swung into action and sued him for ten million dollars. Their case was initially dismissed, but the dismissal was overturned on appeal. The appeals court agreed that torture was a violation of accepted laws of nations. Therefore, because all parties were present in the United States, it was found that the American courts had jurisdiction to hear the case under the ATS.
The Filártiga decision suddenly opened avenues that had not previously existed for human rights activists and victims of human rights violations. Similar lawsuits were soon launched against other foreign human rights violators found in the United States.
Enterprising activists soon went one step further, bringing civil suits against companies alleged to be complicit in violations of human rights abroad. In Doe v. Unocal, for example, Burmese activists sued Unocal, the California energy giant (now part of Chevron), for use of forced labor in the building of a gas pipeline in Burma. The case was settled out of court, but not before the plaintiffs won an important victory when Unocal's motion for summary judgment was dismissed. The Unocal result notwithstanding, ATS lawsuits against corporations remain very difficult to win, with the vast majority of such cases being dismissed before ever even coming to trial.
Because the defendants often have no assets or can choose to leave the United States before trial, cases brought against foreign individuals are rarely successful in recovering any money for plaintiffs. Lawsuits against corporations like Unocal with established operations in the United States, however, have the potential to be considerably more lucrative.
In 2004, the U.S. Supreme Court ruled on the ATS and clarified its limitations. In Sosa v. Alvarez-Machain, the court circumscribed the scope of the law, ruling that the ATS is not substantive in nature -- that is, it does not mandate recognition of any and all actions involving the infringement of an individual's rights under international law. In the court's view, the statute is merely jurisdictional, meaning that it provides jurisdiction to courts to hear cases concerning torts that are defined as prohibited norms under the law of nations or treaties of the United States. The Supreme Court also made clear that not every violation of international law qualifies as a violation of the law of nations. The ATS can be used to bring claims only for torts defined with specificity under international law and widely acknowledged to be violations of the obligations of states.
It remains to be seen how the Sosa v. Alvarez-Machain decision will affect the Saharkhiz case. As a legal matter, the plaintiffs will now have to prove that Nokia's alleged complicity in the detention and torture of the political activist meets the high standards articulated by the Supreme Court. Factually, Saharkhiz's lawyer will have to show that Nokia knew or should have known that the technology it was selling to Iran would be used to violate the rights of citizens like Isa Saharkhiz. Neither task will be easy.
Herischi and Moawad, the lawyers for Saharkhiz, are asking Nokia Siemens for damages. They are also asking Nokia to stop support of the intercepting technology sold to Iran. Finally, they want the company to "help secure the release of Mr. Isa Saharkhiz through the use of their connections with the Iranian government."
It's not clear that they could get all of the relief they are seeking in an American court, even if the judgment went their way. In civil suits such as this, money damages are the most common form of relief granted.
But perhaps the lawyers' demand with respect to Nokia's responsibility to help release Saharkiz is primarily symbolic in nature. Even if not enforceable through the court system, the lawyers are hoping that public pressure will force Nokia Siemens to act to help dissidents imprisoned through the use of the company's technology.
If successful, the lawsuit could alert Iranian activists to the potential for legal action in U.S. courts against members of the Iranian government or companies that do business with it. There would, of course, remain myriad challenges for such potential plaintiffs: finding the defendant individuals or companies on American soil, serving them, forcing them to stay in the United States to defend against the suit, and getting them to pay if found liable.
Such civil suits, of course, would not give victims and their families the satisfaction of a criminal case in which the guilt or innocence of a defendant is decided and a jail sentence may be meted out. Still, cases arising under the ATS might give activists hope and cause Iranian officials to hesitate before setting foot on U.S. territory.
Herischi and Moawad tell me that they are hoping to find others with stories similar to Saharkhiz's and turn the case against Nokia Siemens into a class-action lawsuit. As they are well aware, if the many legal hurdles are cleared, such a suit could yield a very large financial payout.
But the lawyers emphasize to me that, amid the talk of lawsuits and money damages, they don't want Isa Saharkhiz's plight to be forgotten. "We want to show that we appreciate what he has done," Herischi says. "We don't want his courage to be forgotten in this story."
Kaveh Shahrooz is a graduate of Harvard Law School. He practices corporate law in New York. 'Briefs' is where legal issues are explored in the magazine.
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