Monday, August 30, 2010

Nokia Siemens, meet the Alien Tort Statute -- a U.S. detour for justice.

Suing Repression's Service Provider


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. 

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."  More...

Thursday, August 19, 2010

Estate of Marani Awanis Manook v. RTI, Case 5:10-cv-00072-D, United States District Court, E.D. North Carolina, Western Division, August 12, 2010: Order

Plaintiffs contended that state action was present and alternatively that state action is not required under the ATS.  The court, however, disagreed, and GRANTED defendants' motion to dismiss for lack of subject-matter jurisdiction.

(See June 28, 2010 Order)

Friday, August 6, 2010

Morrison v. Nat’l Australia Bank Ltd.: The Supreme Court Rejects Extraterritoriality
By Paul B. Stephan
For more than forty years, U.S. courts have applied the antifraud provisions of federal securities law to actors and transactions operating outside the United States. In Morrison v. Nat’l Australia Bank Ltd.,[1] decided on June 24, 2010, the Supreme Court gave a firm and unambiguous rebuke to this practice. It is not enough, the Court stated, that international law may permit such regulation. Rather, Congress must clearly indicate that it wants U.S. law to apply to securities transactions in foreign markets. Shortly thereafter, Congress effectively confirmed this result. In the Dodd-Frank Wall Street Reform and Consumer Protection Act, enacted on June 21,[2] Congress authorized only the U.S. government and the Securities and Exchange Commission, and not private investors, to bring suit with respect to foreign transactions.

Since 1991, the Court has applied a strong presumption against extraterritoriality to force Congress, rather than the judiciary, to manage the risk that U.S.-prescribed rules might conflict with those of other sovereigns. None of its previous cases, however, have overturned such longstanding and extensive lower-court precedent. A petition for certiorari currently before the Court may give it the opportunity to decide next year whether its approach in Morrison applies to the Alien Tort Statute, which the lower courts have embraced as a means for addressing human rights violations.  More...
Federal judge allows Iraqis' suit against military contractors to proceed

A judge for the US District Court for the District of Maryland has denied a motion to dismiss a lawsuit filed by a group of former Iraqi detainees against US military contractors. The lawsuit, Al-Quraishi v. Nakhla filed in June 2008, alleges that L-3 Services, Inc. violated US and international law by directing and participating in abuses at Abu Ghraib and other Iraqi prisons. The defendants in the case had moved for dismissal in November 2008, claiming immunity under the laws of war and sovereign immunity. Additionally, they claimed that the Alien Torts Claims Act [28 USC § 1350], under which the plaintiffs were suing, was not applicable because they did not violate the law of nations. The defendants also argued that they were immune from the claims made under state law because of government contractor immunity and because Iraqi law should be applied. Judge Peter Messitte rejected these claims, explaining:

"Defendants' actions arguably violated the laws of war such that they are not immune from suit under the laws of war. Additionally, the Court is not inclined, at this stage of the proceedings, to find that Defendants are shielded by derivative sovereign immunity, since the Court is unable to determine from the Complaint alone that Defendants were acting within the scope of their contracts with the United States as that defense requires. The Court further rejects the government contractor immunity defense[.] ... The Court declines to dismiss the Alien Tort Statute claims since, in the Court's judgment, Plaintiffs' claims constitute recognized violations of the law of nations, appropriately assertable against Defendants. As for Plaintiffs' state law claims, the Court finds that they are governed by Iraqi law. ... [T]he Court is unable to determine at this time whether Defendants are in fact immune under Iraqi law."

The court held that the case must continue to discovery to answer the issues that it was unable to resolve at this point in the litigation.

In October 2008, lawyers for private US military contractor CACI International, Inc., which was named as a defendant along with L-3 in the original complaint, filed a motion to dismiss the charges against the company based on a claim of immunity. This motion was granted in January 2009. The lawsuit was filed in 2008, alleging that L-3 and CACI subjected them to torture, cruel and inhuman treatment, committed war crimes, assault and battery, sexual assault and battery and infliction of emotional distress, in addition to conspiracy to commit those acts.