Last month, the U.S. government weighed in on the side of Royal Dutch Petroleum/Shell in the Kiobel case, opposing everyday people who claim to have suffered when the oil giant’s pursuit of profits led it to collude with the Nigerian military government to commit human rights abuses.
The government’s brief, authored by the Justice Department, was offensive, deeply troubling, and legally deficient. It argued that the United States judicial system is not available to victims of human rights abuses in cases like this one, where a foreign company that is otherwise subject to our courts was complicit in atrocities abroad. This argument flies in the face of decades of precedent and weakens the protections of a law that is over 200 years old.
Now we’re pushing back. A number of key signatures are conspicuously absent from the brief, indicating that there were internal struggles within the administration over the government’s position. Most notable was the lack of a signature from Harold Koh, the top lawyer in the State Department and a longtime human rights advocate. In fact, neither the State Department nor the Commerce Department signed the brief, despite having joined a previous Kiobel brief in support of the victims.
Why didn’t the government’s top foreign and trade policy officials sign this brief? Their absence is particularly glaring given that the brief relies almost solely on arguments about the effects of human rights claims on foreign affairs.
We want to know how this strange brief came to be, so we have submitted three Freedom of Information Act (FOIA) requests, asking for relevant communications regarding the decision-making surrounding the government’s Kiobel brief. If disclosed, this information will help reveal whether or not the business interests of Attorney General Eric Holder or Deputy Solicitor General Sri Srinivasan influenced the government’s position in Kiobel. Prior to joining the government, both Holder and Srinivasan represented companies that were subject to lawsuits similar to Kiobel, and both of their former clients would benefit if the Supreme Court adopts the position advocated by the Justice Department. We also hope to learn whether the U.S. government was lobbied by business interests.
Similar inquiries have also been made in other countries, where citizens are looking to learn the extent of corporate influence over their governments. The German government filed a brief supporting Shell prior to the first hearing in February, and we later learned that their position was encouraged by a German industrial. Other Freedom of Information requests and parliamentary inquiries were submitted in the Netherlands and the UK, which are Shell’s home governments and have jointly submitted briefs supporting the company.
This post was written by Jonathan Kaufman, former staff.