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Yesterday a Maryland federal court issued a decision allowing a case alleging torture by a US contractor in Iraq to proceed.  There’s a lot of good analysis in the opinion, but I’d like to focus on a particularly strange argument made by the defendants–that foreign residents simply cannot sue in US courts, especially when they are citizens of countries that the United States is at war with.  (Put aside for the moment the suggestion that all Iraqis are “enemies.”)  This argument was rightly rejected by the court, which found that the plaintiffs “possess the ‘privilege of litigation’ in United States courts.”  But why was it even raised?

Except in very limited circumstances, no one had ever really questioned that aliens can sue in US courts.  Nearly every transnational case that has been litigated has involved aliens, mostly residing outside the US, suing in US courts.  Last year, however, a federal court in Washington, DC, dismissed a case against Exxon Mobil because, the judge found, there was a “general rule that non-resident aliens lack standing to sue in United States courts.”  (The notion of “standing” can be a vexing legal doctrine, but basically it encompasses the idea that the plaintiff is the right person to bring the suit, because the plaintiff has suffered harm and because the law intended to benefit that type of plaintiff.)  There is, of course, no such general rule; nonresident aliens have been suing in US courts for centuries, as the Exxon Mobil plaintiffs pointed out.  So how could the judge get it so wrong?

One reason is that, even if courts have been doing something for centuries, some judges will find that the prior cases don’t stand for any legal rules that they didn’t specifically mention.  In other words, if no one raised the argument before, and the courts didn’t reject it, it’s still fair game.  Even if courts (including the Supreme Court) have heard hundreds of cases brought by nonresident aliens, if they didn’t say that nonresident aliens had standing to bring suit, or reject an argument that they lack standing, some courts find that those cases are no barrier to a rule against standing.  (Of course, lack of standing deprives a court of jurisdiction, and courts are always supposed to ensure that they have jurisdiction–so courts in every case should have assured themselves that the plaintiffs had standing, even if they didn’t mention it.)  In Exxon Mobil, the judge even ignored prior cases where the court had specifically found that the plaintiff who was a nonresident alien had standing to sue, because the defendant hadn’t argued that nonresident aliens don’t have standing.

What this means is that defendants are essentially encouraged to find new, and ever more outlandish, arguments against transnational cases, and we’ve seen more and more outlandish arguments in recent years.  It doesn’t matter that, if the new argument were true, dozens of previous cases were wrongly decided.  It doesn’t matter that no one brought up the new argument because everyone thought it was crazy, or that no judge mentioned it because everyone knew it was wrong.  If it wasn’t specifically raised and rejected, it’s still fair game. The argument goes something like this: Yes, twelve cases just like this one have been decided against defendants just like us, but none of those cases considered this wacky theory, so we’re really writing on a blank slate!

Defendants and their counsel don’t need to actually win these arguments in order for them to be useful.  In the Exxon Mobil case, the plaintiffs will very likely win their appeal on the alien-standing issue.  But if a defendant can get one judge to accept their new theory, they can delay a case for years even if the judge’s decision is later reversed; even if no judge accepts the theory, defendants can force plaintiffs and courts to waste time researching and responding to the new arguments.  Plaintiffs never know when a judge will misread the caselaw and, as in Exxon Mobil, announce a “general rule” that no one had ever heard of before, so we always need to take every argument seriously, no matter how crazy it seems.

The new case is al-Quraishi v. Nakhla, No. 08-1696 in the District of Maryland, and it was brought by the Center for Constitutional Rights, ERI’s co-counsel in several other cases.