So basically every corporation operating in the US has to follow US law at all times, regardless of the economic/legal circumstances in other countries?
I can see why that is controversial and almost certainly will be extremely selectively enforced.
I feel like the US government has a legitimate interest in making sure US corporations don't pay paramilitary death squads for drug traffickers, especially ones that the US had designated as terrorist organizations at the time.
I don't think it's really that controversial to prevent US companies from doing this.
But to be clear they had already pled guilty to doing that crime in 2007 (and they also prosecuted the AUC, many AUC leaders were extradited to the US in 2008).
This isn't about enforcement at all, this is them being found liable in a civil class action lawsuit, one brought by families of folks the AUC murdered.
> But to be clear they had already pled guilty to doing that crime in 2007 (and they also prosecuted the AUC, many AUC leaders were extradited to the US in 2008).
That's exactly what I mean for extremely selective enforcement
Say some hypothetically medium/small US business with some operations in Mexico has their employees stalked/intimidated and their equipment gets burned down and people with guns hang out in the office, usual cartel stuff that happens daily there
Then they go to the Mexican gov for help and find out they don't give a shit because they are paid off or worse directly working for the cartel (as this particular Colombian paramilitary group was notorious for being protected by the gov).
So they pay money to some local cartel to make them go away
This is bad yes and should be punished.
But I don't see how that behaviour at all should allow civil action by random families from Mexico who were harmed (indirectly) by the same Cartel to make a case in the US
That's the most disconnected and roundabout form of justice imagineable.
Their crime should have rightfully been procescuted by Colombia at the time or the US sanctioning them. That is the real deterence. Civil courts in the US have no business playing judge in that context IMO. Unless your goal is feel good emotions by giving victims of crime money by takkng money from another party coerced by the same criminals.
>So they pay money to some local cartel to make them go away
Traditionally it's more like "they pay money to some local armed group to get rid of union activists and unruly workers asking for more rights and better conditions and salaries".
Yes, because real workers are never exploited and never have legitimate concerns and demands, especially in developing world countries /s
It's not like such companies like Chiquita even support dictators or topple goverments (or lobby to get it done on their behalf) to protect their margins and cheap labour...
"Among the Honduran people, the United Fruit Company was known as El Pulpo ("The Octopus" in English), because its influence pervaded Honduran society, controlled their country's transport infrastructure, and manipulated Honduran national politics with anti-labour violence."
Well, feel good justice isnt even just one part here because justice isnt the primary goal of a legal system. Your premise is wrong.
Its about punishment to enforce the civil contract and once you exclude bodies, eg drug trafficing CIA officials or sociopathical CEOs, you start to loose credibility.
> But I don't see how that behaviour at all should allow civil action by random families from Mexico who were harmed (indirectly) by the same Cartel to make a case in the US
So then only attorneys are left to lead the charge, right? How can you still trust a system that prosecutes journalists that uncover war crimes that get covered up by the same cartel?
>So basically every corporation operating in the US has to follow US law at all times, regardless of the economic/legal circumstances in other countries?
wait - was the argument that the laws of these other countries they were operating in required them to fund paramilitary death squads? I must have missed that part.
I'm thinking the slope is not as slippery as feared here.
on edit: Ok I read your Mexican cartel example, slipperiness still not apparent to me how one slides from we hired death squads that killed people to we hired a cartel for protection but the money we paid was put in a big pile of money that cartel used to also fund bad stuff the cartel did that hurt people who were not trying to damage our company.
at any rate the amount of money paid out here having people killed is the usual cost of doing business slap on the wrist considering Chiquita's size and doesn't actually affect them. The negative publicity is worse.
I mean actually this is probably the rule for most countries regarding some laws at least - EU companies as I understand the law need to follow GDPR when outside EU, there are laws against bribery and money laundering that work across nations despite what the economic/legal circumstances are in play in other countries.
Luckily though I believe every country in the world that is not a fictional dystopia actually has laws against corporations paying to have people killed so it probably doesn't matter much in this case anyway.
Non-EU companies need to follow GDPR when serving EU customers, yes. There are many websites that geoblock EU visitors because they don't want to comply with GDPR.
But the EU only enforces that for transactions involving EU citizens. If you want to grab all the data from US visitors, go for it, the EU will not complain (as long as you don't do it to EU visitors).
I think the difference here is that the US is enforcing US law on an operation in a foreign country by a company that operates in the US. The equivalent would be the EU enforcing GDPR for all site transactions, regardless of the visitor's nationality.
The point of making this distinction is that there are countries that have laws that we don't want to follow (e.g. various Middle East countries having drastic punishments for atheism and apostasy), and that should not be applied to people (or organisations) who don't reside there. If the USA makes the precedent that it can enforce its domestic law on actions happening in other countries, then it's possible that (e.g.) Australia could enforce its ridiculous anti-online-bullying laws on US citizens who have never left the USA.
>But the EU only enforces that for transactions involving EU citizens. If you want to grab all the data from US visitors, go for it, the EU will not complain (as long as you don't do it to EU visitors).
>your company processes personal data and is based in the EU, regardless of where the actual data processing takes place
>your company is established outside the EU but processes personal data in relation to the offering of goods or services to individuals in the EU, or monitors the behaviour of individuals within the EU
Notice how they emphasized EU citizens? Yeah, neither did I.
Reading over the post I realize they meant that companies in the U.S need to handle EU citizens data properly but they can do what they want with U.S citizens data, which I misunderstood so my apologies on the misunderstanding.
which of course is not an exactly correct understanding - no American company without holdings in Europe needs to worry about what they do with their websites accessed by European citizens.
The don't emphasize citizenship because it is enough to live in the EU for the law to apply, i.e. immigrants etc. are included.
If you look into the actual GDPR, you will find the phrase "data subjects who are in the Union", which are "natural persons", for whom the data protection laws apply.
>you will find the phrase "data subjects who are in the Union", which are "natural persons", for whom the data protection laws apply.
tourists who are in the union also apply, there is no idea that you can figure out if that person is just traveling through the EU for some months you can do what you want with them.
>Data subjects in the Union means any person in the Union whose information is being collected at that moment, regardless of their nationality or legal status. That means EU citizens and residents are squarely in scope. And someone in the EU, even a US tourist using an app in the EU, is a data subject in the Union for purposes of the GDPR.
on edit: if you were just clarifying/backing up my original point, sorry, I thought it seemed you were going with interpretation of the person who I was replying to an EU company can do what they want with any U.S citizen's data.
It's kind of ironic, as the US wants every other country to follow their laws too sometimes (patents, copyright, probably more).
For the extra cup of strange irony, part of the government in my country (Australia) just tried forcing X to delete posts for everyone globally instead of just not showing them to Australian users. Thankfully the court system told the Aust gov to bugger off due to overreach. ;)
> So basically every corporation operating in the US has to follow US law at all times, regardless of the economic/legal circumstances in other countries?
It is wild to me how some people can throw something like this out as this like, unreasonable and clearly sarcastic question like, what you expect a corporation to follow the law everywhere? And I'm just over here like... yeah? Yeah. I... always did, really, I never considered that if I formed a corporation I could fund death squads in other countries to maintain access to cheap products. What the hell is wrong with you where you thought that was not only desirable, but a normal situation...?
I grew up very conservative and pro-free-market, and honestly a huge part of my transition to being a pinko commie scum was recognizing just how FUCKED big businesses are, especially overseas. Like you have the banal stuff like tax sheltering which is shitty but like, it's just money but then, oh MAN, they get up to some truly horrific shit. Death squads, union breaking, cataclysmic environmental damage, and it's 100% enabled by our system. I hope that this trend continues and we can finally get some justice out of these organizations that have clearly overstepped in so many ways.
If we’re talking about crimes like “murder”, yes, it’s pretty clear.
If we’re talking about crimes like “bribing a public official”, it’s less so. There are countries where that is simultaneously 1) technically illegal by that country’s own laws, 2) absolutely an expected and required part of doing business. So what do you do in that case?
Anyone who has ever worked for a medium-large corporation will have done the inevitable employee training that, among many other things, tells you that "no, you cannot pay bribes or facilitation payments in another country even if it's normal and expected there, and yes you and us can still be prosecuted at home for that".
One could make the argument that if the corporation is required by law in all the non-legal countries to abide by those laws and not bribe officials that the practice will necessarily have to die out among the few countries you would be arguing for, simply because the risk is too great to the corporation. Maybe it would be maintained among local businesses, but it would be an understood fact that a politician could not expect a broad multi-national to participate in it, irrespective of their desire or willingness, if they stood to face prosecution from... however many countries they operate in, all of whom would demand a penalty be served. Even if they're slap-on-the-wrist penalties, that's going to add up real fast.
IANAL, but I believe that under US law you are allowed to pay bribes to get someone to do their job in places where that is customary. You just aren't allowed to pay bribes to get someone to do something that they aren't supposed to do.
> under US law you are allowed to pay bribes to get someone to do their job in places where that is customary
Not quite.
You may be thinking of the “grease payment” exception [1] to the FCPA [2]. Customariness isn’t as important as whether the payment is to speed up a decided outcome or effect the outcome.
idk, I see it the other way around actually. if you kill someone in another country, that's still bad, but it's not clear why the US government should be the entity that holds you accountable for it. seems more appropriate to turn you over to that country's government upon request.
whereas if you bribe public officials in other countries as normal business practice, that might give you an advantage over other companies that also operate in the US. if they have to also engage in bribery to compete with you, that seems like a much more direct harm to another US entity.
Why stop there and not take it to the next step? Surely company A killing whistleblowers or rabble rousers overseas lets it outperform company B that isn’t doin that state-side? Doesn’t that encourage company B to do the same on red, white, and blue soil?
are A and B both operating in the US in your example? if yes, then USG has a legitimate interest in removing that perverse incentive. if not, then the US criminal justice system seems like the wrong place to solve the problem.
my point is that the jurisdiction of the US criminal justice system should be limited to the US. if people do things in another country that demonstrably harm US residents, that's fair game. otherwise, it seems like an overreach for the US to enforce laws that might not even exist in other countries. just my opinion, you don't have to agree.
>it's not clear why the US government should be the entity that holds you accountable for it. seems more appropriate to turn you over to that country's government upon request.
This would make it very easy for Americans to be mercenaries and assassins for foreign governments.
The company in question managed to get the CIA to overthrow the democratically elected government of Guatemala and replace it with a military dictatorship.
The issue has nothing to do with conservatism versus liberalism, but sovereignty. Why should the US get to make law for the whole world, and then enforce that law in US courts?
The funny thing about the leftist children of Reaganites is that they maintain their parents’ universalism and lack of respect for foreign sovereignty. “Maybe America should fuck off and mind its own business” is never part of the political conversion.
America is not enforcing its laws on some random people outside its borders, its regulating the behavior of people who are very much subject to our legal system. I am quite surprised to see there's a contingent of folks who think that leaving our borders means you can do whatever you want and expect to be welcomed back
The Alien Tort Statute applies specifically to "aliens" not Americans. It's about holding foreigners liable for conduct on foreign soil in U.S. courts.
I want to say something and I promise I say it not as a dig on you... as someone who's followed you for more than 10 years, I am fascinated that despite the many, many changes and revisions in your belief systems over the years, something that never changes is the certainty and conviction and confidence in your tone.
I guess it's a good thing, wish I had it. Makes for persuasive and effective writing, that's for sure.
It's just dress-up for really specious legal theories, such as we should disregard this statute because they believed in the "law of god" at the time, but of course, not any other law he would prefer not be overturned from that time.
I’m not arguing ad hominem. In this case, the nonsensical thing they believed makes the statute itself nonsensical:
> 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 highlighted part just doesn’t make sense unless you believe in some universal, God-given “law of nations.” In this context, the supernatural belief renders the statute itself nonsensical, like a law setting tariffs on imported “faerie wings.”
I’m not using it as an ad hominem to disparage a statute that makes sense on its face. The part of the statute referring to acts in violation of US treaties is perfectly fine.
I'm not an international lawyer, but my understanding is that for a very long time there has indeed been a generally-accepted "law of nations" that simply evolved by (more or less) common consent, not necessarily by any formal enactment on the part of some generally-accepted authority. Lex mercatoria ("the Law Merchant") comes to mind, as does the "right" of any nation to execute pirates captured on the high seas.
The brute fact is that ultimately, might does indeed make right.
> The brute fact is that ultimately, might does indeed make right.
Sure. But that’s not “law” that’s the exercise of power. In 2024 we shouldn’t indulge the fiction that it’s more than that.
The way it has been construed, the ATS empowers US courts to do whatever they want if some foreign conduct offends the sensibilities of some Americans. Some feelers in America upset that Bangladesh summarily executes drug traffickers? They can sue for violation of “the law of nations.” I’m not saying the US can’t do that, I’m saying it’s stupid and arrogant.
> Some feelers in America upset that Bangladesh summarily executes drug traffickers? They can sue for violation of “the law of nations.”
Citation? In the mifepristone case just yesterday, SCOTUS reminded us of the need for "standing" — albeit while practically drawing a road map for other plaintiffs to try again.
Question: Under your reasoning, are Judge Kacsmaryk's nationwide injunctions, e.g., in the mifepristone case, similarly "stupid and arrogant," even though they're technically permissible under the All-Writs Act [which needs major revision IMHO]?
> Citation? In the mifepristone case just yesterday, SCOTUS reminded us of the need for "standing" — albeit while practically drawing a road map for other plaintiffs to try again.
Some “human rights” group in the U.S. would just have to find a random Bangladeshi person (including a non-citizen) to claim some family member was killed in some supposedly “illegal” execution of drug dealers.
> Question: Under your reasoning, are Judge Kacsmaryk's nationwide injunctions, e.g., in the mifepristone case, similarly "stupid and arrogant," even though they're technically permissible under the All-Writs Act [which needs major revision IMHO]?
No because he’s a judge of the same legal entity being enjoined. Unlike the national borders, the federal districts are mostly just lines in an org chart.
> The way it has been construed, the ATS empowers US courts to do whatever they want if some foreign conduct offends the sensibilities of some Americans.
I'm no expert, but this seems overbroad and even flat-out wrong.
1. Here's something from The New Republic [0] (certainly not a bastion of right-wing thought) earlier this week: "In recent history, as well, the U.S. has closed off some of the few venues through which victims of human rights violations committed by corporations can be heard in U.S. courts. In Kiobel v. Royal Dutch Petroleum [1], in 2012 [sic; 2013], the Supreme Court ruled that the Alien Tort Statute does not apply to human rights violations committed outside of the country, unless claimants can prove a strong connection to the United States."
2. From the Court's 9-0 decision in Kiobel:
<quote>
The question presented is whether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute, for violations of the law of nations occurring within the territory of a sovereign other than the United States.
***
[N]othing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach.
The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach—such violations affecting aliens can occur either within or outside the United States.
Nor does the fact that the text reaches "any civil action" suggest application to torts committed abroad; it is well established that generic terms like "any" or "every" do not rebut the presumption against extraterritoriality.
</quote>
(Extra paragraphing added.)
3. Then a few years later in Jesner v. Arab Bank, PLC (2018) [2], the Court said, 5-4: "With the ATS [Alien Tort Statute], the First Congress provided a federal remedy for a narrow category of international-law violations committed by individuals. Whether, more than two centuries on, a similar remedy should be available against foreign corporations is similarly a decision that Congress must make." (Emphasis added.)
And of course the Court has gotten much more conservative and pro-business since 2013 and 2018 ....
On this issue, I don't think there's been a change. I don't believe in universalism, which Americans on both the left and right tend to do. I opposed the Iraq War because I thought America had no business trying to bring democracy to Iraq (and knew Iraqi society couldn't handle democracy). Similarly, I oppose current U.S. efforts to impose universal norms. America shot a bunch of striking workers and polluted the environment on the way to becoming rich. Why shouldn't Bangladesh have that same prerogative?
> Why should the US get to make law for the whole world, and then enforce that law in US courts?
A longish response would be: "The United States is generally a force for good, and it's the main provider of the very-costly Pax Americana that supports so much of global commerce and a rules-based international order. If we decide you need to follow our standards everywhere if you want to enjoy access to our country, you're always free to refuse — and to accept the consequences."
The short, brutalist response would be: "Because we can."
A footnote: You seem to think that "sovereignty" is some kind of magical concept that causes everyone to honor the wishes of another people. It's not; history amply proves that "sovereignty" is simply shorthand for "we think we shouldn't have to do what you want us to do, because reasons, and we're willing to gamble that our economic power and military might (alone and/or with allies) are enough to enforce our preference over yours."
I agree with the short version, but that doesn’t answer the question of why. It’s one thing to invade other countries’ sovereignty to materially benefit your own citizens. But to do so without such benefits is irrational. It’s religious nutjobbery, like the crusades.
> It’s one thing to invade other countries’ sovereignty to materially benefit your own citizens. But to do so without such benefits is irrational. It’s religious nutjobbery, like the crusades.
Short-term vs. long-term analysis. Analogously, if I understand your argument correctly: It's entirely rational for citizens to support costly- and occasionally-violent enforcement of the law against others — e.g., arrest and (upon conviction) imprisonment of murderers, robbers, tax cheaters, etc., and then publicizing that action — even though few if any citizens get any near-term material benefit from doing so. Likewise with the rules-based international order supported by Pax Americana.
Taking (what I think is) your argument to an extreme: The U.S. didn't get involved in WWII to stop Germany from exterminating European Jewry; nor did we invade Rwanda to try to stop the Hutu slaughter of Tutsis and others. But in either case, had we done so, I don't think it would have been "religious nut[-]jobbery."
The U.S. is an entity that has duly enacted laws and some of them require paying taxes. But nobody made the “laws” that the U.S. pretends to enforce on the international stage.
That’s my beef: if the U.S. wants to meddle in other country’s affairs “because it can” nobody can stop it. But it’s insulting to disguise what is an exercise of power as the enforcement of “law.” And if Americans really do believe there is law that binds the whole world that’s where the religious nutjobbery comes in. Law is something that only exists within a state that has the monopoly on violence to enforce it.
(Intervening in World War II can be justified as an exercise is protecting U.S. security. Intervening in Rwanda cannot, and is an example of Americans believing it’s their job to enforce God’s law everywhere in the world.)
> But nobody made the “laws” that the U.S. pretends to enforce on the international stage.
You're setting the bar pretty high. Some "law" simply evolves, by custom and practice, without any formal enactment by anyone. One example that comes to mind is (maritime) anti-piracy law.
Keep in mind that, unless I'm very much mistaken, American extraterritorial law is fundamentally grounded on, "if you want access to our country, financial system, etc., then you gotta follow our rules — and not necessarily just while you're within our geographic borders. You pays your money and you takes your choice."
BTW, the U.S. didn't invade Rwanda at all, to save the Tutsis or otherwise.
> Intervening in Rwanda [to stop genocide] cannot [be justified], and is an example of Americans believing it’s their job to enforce God’s law everywhere in the world.
Many of us would assert that trying to stop mass murder is a good thing in its own right and doesn't need to be justified by reference to "God's law," whatever that might mean.
Other countries are free to levy such fines for offenses they deem worthy and have done so in the past certainly. The US does not have exclusive right to this.
Uh, yes? There are dozens of specific US laws that govern this and tons of existing case law that committing a serious crime overseas is punishable in the US regardless of its legality elsewhere.
The Travel Act for example makes it illegal to fly to another country to engage in sexual acts with a minor, even if it is legal in that country. Do you think that is some sort of government overreach?
The relevant principle of jurisdiction here is that a state has jurisdiction over the acts of its citizens. It's not uncommon and it's certainly not just a US thing (eg. here is a Brazilian court convicting one of its citizens over a murder committed in Australia: https://www.theguardian.com/world/2023/jun/23/cecilia-haddad... ).
The thing that's a bit scary about that Travel Act is: what happens when US laws change?
Instead of having sex with minors, suppose the US elected some crazy religious zealots who managed to make it illegal to have sex outside of heterosexual marriage, after getting abortion banned (so, not exactly far-fetched). So does that mean that all "US persons" (citizens, green card holders, residents, etc.) who travel (or live) outside the US and have sex with someone they're not married to are now criminals?
>So does that mean that all "US persons" (citizens, green card holders, residents, etc.) who travel (or live) outside the US and have sex with someone they're not married to are now criminals?
What might you say about war crimes? When was the last time we had a large scale war within the borders of the U.S.? Should the wars that have taken place since been free of such prosecution since they were overseas?
I can see why that is controversial and almost certainly will be extremely selectively enforced.