As we celebrate the end of slavery in the U.S., the Supreme Court gave it a pass in West Africa. Once again, Nestlé and Cargill get off the hook for allegedly aiding and abetting child slave labor.
"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is an ass - an idiot." — from “Oliver Twist” by Charles Dickens.
“First, do no harm.” — from “Of the Epidemics” by Hippocrates.
On June 19, 1865, U.S. Major General Gordon Granger, who had just arrived in Texas with 1800 men, declared that “all slaves are free” in Texas and there would be an “absolute equality of personal rights and rights of property between former masters and slaves.”
Last week, for the first time, we in the U.S. celebrated that day with the declaration of a new federal holiday. But two days before, on June 17, the U.S. Supreme Court, in a decision that only got a modest amount of news coverage, handed down a ruling that will almost certainly help perpetuate modern day slavery. In an 8 to 1 decision written by Justice Clarence Thomas, the Court ruled that former child slaves from Mali, who were trafficked to the Cote d’Ivoire to work on cocoa farms, could not sue the multinational corporations Nestle and Cargill in U.S. courts—despite years of circumstantial evidence that the companies were complicit with the enslavement and benefitted directly from it.
Who was the lone dissenter? One of the Court’s few remaining “liberals” perhaps? No, it was conservative justice Samuel Alito. But even in Alito’s brief dissent, he made no mention of child labor in Africa, the horrible conditions that had led six Malians to sue the cocoa companies, the valiant efforts of human rights activists and the former slaves’ lawyers to get justice for them. Rather, the decision turned on the fine points of a 1789 law called the Alien Tort Statute, which had laid almost entirely dormant for nearly 200 years until it was revived by the Center for Constitutional Rights in 1979 as an instrument to human rights abuses at home and abroad.
At the oral arguments last December, the former child slaves were represented by Paul Hoffman, an international human rights lawyer based in California. (Full disclosure: I worked with Paul Hoffman at the ACLU of Southern California during the 1980s, on a major case against police spying on peaceful political organizations. He is a great lawyer, a great guy, and still a good friend.)
Nestle and Cargill were represented by Neal Katyal, an attorney based in Washington, D.C., perhaps best known in recent years for his support of the impeachment of Donald Trump and his many media appearances on that topic. Perhaps less well known was Katyal’s strong support for the nominations of Neil Gorsuch and Bret Kavanaugh. In the oral arguments in December, Katyal contended not only that the cases of the Malian slaves should be thrown out, but that the Alien Tort Statute should be interpreted to mean that corporations could not be sued at all for international human rights violations.
But that extreme position, although supported by some of the justices, could not muster a majority, and so the question remains for another day. As for the Malians, Paul Hoffman says that he plans to file an amended complaint in the case in hopes of satisfying some of the very strict conditions SCOTUS has laid down in recent years for invoking the Alien Tort Statute. (More on that judicial history below.)
Most importantly, the Court insisted that the plaintiffs in the case must have stronger evidence for the complicity of Nestle and Cargill before they could be allowed to proceed with the lawsuit; during oral arguments, Alito gave Hoffman quite a bit of grief over why the plaintiffs were not able to present stronger evidence (in one form or another, the combined cases had been active since 2005.) But that demand represents a Catch 22 for the plaintiffs, who need to go through legal discovery (documents, depositions, etc.) to garner evidence that has been hidden behind closed doors for decades.
“We made that argument to [the district court judge],” Paul told me, but “he denied discovery.” Thus under SCOTUS precedents (the Twombly and Iqbal cases, often called “Twiqbal”) plaintiffs in federal court must show that they have a “plausible” claim before they can proceed with their cases. As we shall see below, the claims are more than plausible, but SCOTUS has set a very high bar. “Getting information about those issues [without discovery] is almost impossible without a whistleblower,” Paul said. “This is part of the conservatives’ efforts to limit these cases.”
William Dodge, a law professor at the University of California, Davis, says that Alito’s grilling of Paul Hoffman “may have had an impact on the other members of the Court.” He adds, “to win you need to have a plausible doctrinal case and a reason for the court to rule in your favor… this left the Court looking for the narrowest disposition they could find…”
The net effect of the Nestle/Cargill decision is to shield bad actors from accountability for their actions, even when violations of international law and international norms—such as the prohibition against slavery—are on the docket. How did we get here? In the broader sense, this is just another chapter in the long campaign of conservatives to twist and turn the U.S. Constitution into an instrument for injustice, all the while insisting that they are only judging cases the way the Founders would want them to. But as we shall see, there are some surprises in the long history of the Alien Tort Statute—and the “original intent” of the Founders may not have been what the majority of justices are claiming it to be in 2021.
Anyone looking for a scholarly legal commentary on the Alien Tort Statute (ATS) should look elsewhere, as the subheading above suggestions. But since the ATS has given a thin thread of hope to victims of human rights abuses (a thread that, as we shall see, the Supreme Court has rendered even thinner in recent years) let’s at least cite the 1789 statute in its entirety:
“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.”
That’s it. In essence, it says that a non-citizen of the United States can sue someone in U.S. courts if the case involves international law or a treaty violation. As for the “original intent” the Founders had in adopting this law—part of broader 1789 legislation that established the U.S. judicial system—historians have generally concluded that the ATS was designed to avoid war with other countries by assuring them that their citizens had redress if an American violated their rights. There was an incident of an attack on a French ambassador, and some conflicts around piracy, but not much else—and so it’s probably no surprise that the law saw very little use for 200 years.
We will get back to the judicial history of the ATS shortly, but let’s now focus on why the six Malian citizens tried to use it to sue Nestle and Cargill. In the Second Amended Complaint in the case, dated July 14, 2016, they are listed as John Does I through VI to protect them from retaliation (the case was originally filed in 2005 but amended to take into account subsequent Supreme Court decisions.)
John Doe I was trafficked from Mali into the Cote d’Ivoire when he was 14 years old, and forced to work on a cocoa plantation between 1994 and 2000—when he finally escaped—for no pay. He worked 12-14 hours day, and was kept locked up in a guarded room at night to prevent him from escaping. When the overseers thought he was not working hard enough, he was beaten with tree branches.
John Doe II was trafficked from Mali and forced into slavery between 1998-2000. Very similar treatment.
John Doe III, trafficked at age 14, enslaved 1996-2000, similar treatment.
John Doe IV, trafficked at age 12, 1998-1999, finally escaped.
John Doe V, trafficked when 11 years old in 1998. Ran away but captured and beaten. Rescued by the Malian enjoy to Cote d’Ivoire.
John Doe VI, trafficked at age 10, enslaved 1997-2001, finally escaped. Similar conditions.
All of the John Does lived in the city of Sikasso, in southern Mali, and most were recruited by traffickers at the town’s bus station where young men and boys would hang out trying to get work.
The Complaint accuses Nestle and Cargill of “aiding and abetting” the child slavery. Why? Because they not only bought the cocoa from the farms where the children were enslaved, but provided the farmers with money, equipment, and training. Company employees regularly “inspected” the farms where children were enslaved, and reported back to company headquarters. From the Complaint:
“Defendants were able to obtain an ongoing, cheap supply of cocoa by maintaining exclusive supplier/buyer relationships with local farms and/or farmer cooperatives in Cote d’Ivoire. Through these exclusive supplier/buyer relationships, maintained in the form of memorandums of understanding, agreements, and/or contracts, both written and oral, Defendants are able to dictate the terms by which such farms produce and supply cocoa to them, including specifically the labor conditions under which the beans are produced.”
What did the companies know and when did they know it? By the time the lawsuit was filed in 2005, the use of child slaves in the cocoa industry was very well known. In 2006, the Canadian journalist Carol Off published her landmark book, “Bitter Chocolate: Investigating the Dark Side of the World’s Most Seductive Sweet,” what one might call a bitter expose of the cocoa industry’s exploitation of its workers. Since then, the child slavery issue (and child labor more generally) has been the subject of a documentary film, and, more recently, a major investigation by the Washington Post, and other important media coverage.
In his majority opinion on the John Doe cases, Clarence Thomas did not dispute any of these facts, although he did question whether this kind of “general corporate activity—like decisionmaking…” was enough involvement by Nestle and Cargill to allow the plaintiffs to sue under the Alien Tort Statute. “That job belongs to Congress, not the Federal Judiciary,” Thomas wrote (p. 5, Section III.)
It turns out that Congress did indeed try to stop child slavery in West Africa, back around 2001. But intense lobbying by the food industry—the very industry that is now claiming immunity from lawsuits for its complicity with slavery—blocked the legislation in favor of a “voluntary” plan which has only seen the incidence of child labor and slavery increase.
The Harkin-Engel Protocol: Does “voluntarism” mean business as usual?
Beginning around 2000, the BBC and other media outlets began reporting intensively on accusations that the cocoa industry was profiting from the low cocoa prices made possible by child labor and child slavery. In 2001, Eliot Engel, a Congressman from New York state, introduced an amendment to an agriculture bill that would help develop a label for child slave labor free cocoa. (Note that I am relying on the Wikipedia entry as the best reference for this topic, but from my other reading it appears to be accurate.)
The amendment passed the House by a wide majority, but the cocoa industry saw red and hired former senators Bob Dole and George Mitchell to lobby against it. Finally, Engel paired up with Iowa Senator Tom Harkin and struck a deal with the cocoa industry to allow the companies to try to solve the problem on their own. The so-called Harkin-Engel Protocol, signed by eight giants of the chocolate industry, pledged to eliminate the “worst forms of child labor” on West Africa cocoa farms.
This use of this “worst forms” phrase should have been a dead giveaway that the cocoa companies would try to get away with doing as little as they could. So despite lots of publicity about all the programs and monitoring systems they have employed, a recent study at the University of Chicago, funded by the U.S. Department of Labor, found that child labor on West Africa’s cocoa farms has steadily increased since the 2001 Harkin-Engel Protocol. Today, about 1.6 million children are harvesting cocoa in Cote d’Ivoire and Ghana alone. (For a comprehensive introduction to the sorry facts, I highly recommend a series of articles prepared by Just Security, based at the New York University School of Law.)
Given these tragic facts, perhaps Clarence Thomas will begin lobbying for Congress to jettison the Harkin-Elgin protocol and pass some anti-slavery legislation with real teeth. But that would, of course, go against the trend of recent Supreme Court decisions, which seem clearly designed to make sure that the Alien Tort Statute—the only real hope for victims of misconduct by U.S. multinationals—remains reserved for attacks on ambassadors and the occasional buccaneer.
“Original intent” means what we say it means, especially if anyone’s rights are involved
As I’ve noted, the Alien Tort Statute lay dormant from 1789 when it was first passed until 1979, when the Center for Constitutional Rights (CCR) revived it in the (once) landmark case that would become known as Filartiga v. Pena-Irala. In that case, the father and sister of a Paraguayan teenager who had been tortured to death found out that the man responsible was living in Brooklyn. They eventually won a $10.3 million judgment against the torturer, opening the door to dozens of other human rights cases, including the 1995 litigation against Serbian politician Radovan Karadzic for genocide.
Given these successes, it was inevitable that there would be a backlash, and there was—especially as more conservative justices took their places on the SCOTUS bench. In Sosa v. Alvarez-Martin, decided in 2004, the Supreme Court narrowed the application of the ATS severely; and in Kiobel v. Royal Dutch Petroleum, decided in 2013 and involving the torture and murder of Nigerian nationals, the Court unanimously held that these horrible acts had to “touch and concern” the United States itself for the ATS to be applicable. The Court did not decide, however, on the issue of whether corporations could be sued under the ATS.
In the Nestle/Cargill cases, Paul Hoffman and his colleagues were up against these Supreme Court precedents. And as much as they tried to show that the facts in these cases did indeed “touch and concern” the United States—because decisions were being made in corporate headquarters there, and not just overseas—it wasn’t good enough for the Court, which, under the leadership of conservative justices, had deliberately boxed itself in when it came to relief for human rights violations.
(Civil rights lawyers and activists were left to at least feel relief that the Court once again could not muster a majority to make corporations immune from lawsuits, thus restricting the ATS to individual defendants only—ironic given the Court’s 2010 decision in Citizens United that corporations should be treated just like individuals in other matters.)
But it’s still possible that the conservative justices’ insistence on “original intent” for the interpretation of the Alien Tort Statute, seemingly accepted and adopted by the liberals on the court as well, could end up coming back to haunt them. In the last article in the Just Security series linked to above, David Golove, a law professor at NYU, reports the recent discovery of opinions written in 1792 by Thomas Jefferson, then the young nation’s first secretary of state, and Edmund Randolph, then our first Attorney-General, which suggest that the Founders did intend the ATS to apply to acts that took place outside the United States—the principle of extraterritoriality which the Supreme Court has repeatedly insisted blocks using the ATS.
The incidents involved tensions between South Carolina and Georgia on the one hand and the Spanish authorities who still controlled East Florida on the other; a second case concerned a U.S. merchant ship in a French port in St. Domingo that enticed some slaves onboard and then took them to the United States.
In these 1792 opinions, written three years before the precedent that legal historians normally rely on for determining original intent, Jefferson and Randolph agreed that the ATS could be invoked against U.S. citizens despite the fact that the acts in question took place outside the United States, according to Golove’s analysis (which I recommend you read, it is fascinating from many points of view.)
It should be clear by now that, for the most part, I am making moral arguments rather than strictly legal ones, because while it might not seem so to casual readers, I really am trying to “stay in my lane.” What I am arguing that is that if the law, or its interpretations, violates basic moral questions like those implicated in slavery, torture, and other horrendous acts, then the law is wrong, the interpretation is wrong, or both. In other words, as Dickens had Mr. Bumble say, “The law is an ass.”
As for the Hippocratic admonishment to “do no harm,” normally prescribed to doctors, the Supreme Court could have, and should have, let stand the decision by the U.S. Ninth Circuit Court of Appeals—which Nestle and Cargill were contesting—to allow those six Malians to at least try to make their case in court. It would have been the decent thing to do, the right thing to do, and it would have avoided harm to the entire class of current and former child slaves who are still crying out for justice.
