Falun Gong Suit Divides Capital

By Benjamin Soskis

Published June 27, 2003, issue of June 27, 2003.
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Last October, while then-Chinese president Jiang Zemin was visiting the United States, he received an unwelcome surprise. Practitioners of the spiritual movement known as Falun Gong, which was outlawed by the Chinese government in 1999, served his security detail with notice of a lawsuit filed against him in a Chicago federal court.

The class-action suit charges that Jiang created a special agency which persecuted Falun Gong practitioners through a “campaign of murder, torture, terrorism, rape, beatings and destruction of property.” The alleged crimes did not occur on American soil, and almost all of the plaintiffs were not American citizens. But the Falun Gong practitioners are attempting to give their case standing in the Chicago court by relying on the 200-year-old Alien Tort Claim Act that allows foreigners to use American courts to bring civil charges against violators “of the law of nations or a treaty of the United States.” The statute has been invoked in recent court cases on restitution for Holocaust victims.

The case is causing a split in Washington, between the Bush administration, which is pushing for the lawsuit to be dismissed, and a group of 37 members of the House of Representatives — mostly Democrats — that is backing the Falun Gong. The battle reflects a larger struggle within the political establishment over whether the left or the right deserves to wear the mantle of leading human-rights champion.

In defense of human rights, liberals often have gravitated toward the use of American courts and the utilization of international law — mechanisms shunned by many conservatives, who would rather rely on a muscular foreign policy and often decry the reluctance of liberals to endorse one. Indeed, some conservatives attribute the popularity of the Alien Tort Claim Act among liberals to political gamesmanship.

“What troubles me is the possibility that [the Democrats’ support of the act] is simply a response to tort-lawyer pressure,” said the Hudson Institute’s Michael Horowitz, a former Reagan administration official and leading conservative activist on human rights and religious freedom issues abroad. Still, he added, “I hope I’m wrong. Because nothing would please me more than if liberals regained their historical passion about human rights.”

Liberals, meanwhile, have argued that the conservative camp’s refusal to utilize the alien tort act and other legal mechanisms simply plays into the hands of dictators across the globe. By pushing for the Falun Gong’s case to be dismissed, the congressmen argued in a friend-of-the-court brief filed June 9, the administration “has gone beyond asserting the legitimate interests of the United States” and has “in part, [been] acting as an advocate of the Government of the People’s Republic of China.”

The brief, which was signed by 31 Democrats and 6 Republicans, was organized by Rep. Tom Lantos of California, the only Holocaust survivor serving in Congress and the ranking Democrat on the House International Relations Committee. In a letter to his colleagues, Lantos claimed that “instead of promoting the use of… laws designed to give hope to victims of gross violations of human rights abroad, the Administration has aggressively sided with Beijing in part to avoid friction in our bilateral relationship.”

Lantos was referring to an earlier motion filed by the Bush administration in December 2002, which argued that the lawsuit should be dismissed on the grounds that it interferes with the foreign affairs powers of the executive branch and the sovereign immunity of the former Chinese president as a foreign head of state. The administration filed a similar brief in May, in favor of dismissing a separate case against the California-based oil company Unocal, accused of complicity in human rights violations allegedly committed by the government of Myanmar during the construction of a pipeline partially owned by the company. “Although it may be tempting to open our courts to fight every wrong all over the world,” the administration argued in the Unocal case, “that function has not been assigned to the federal courts.”

Juxtaposed with the Bush administration’s aggressive foreign policy and suspicion of international law, the increasing attempts to utilize the Alien Tort Claim Act highlight a sharp debate over which American institutions should be employed to guarantee human rights around the world.

Championed by human rights activists, the law is regarded with suspicion by Bush administration officials — a discomfort that reflects the administration’s general hostility toward international law, said Burt Neuborne, the New York University law professor who used the statute in a series of cases against German companies and the German government on behalf of individuals forced into slave labor by the Nazis. The invocation of international law “means that Gulliver gets tied down,” said Neuborne, and the administration “doesn’t want norms to evolve that will limit our field of action.”

The act, which legal scholars believe to have been a response to piracy, slumbered in legal obscurity for its first 190 years of existence. Then in the late 1970s, the statute was rediscovered by a lawyer seeking to prosecute a Paraguayan police inspector living in New York for the torture and murder of the teenage son of a political dissident. In a landmark 1980 ruling, the Second Circuit Court of Appeals in New York deemed human rights abuses violations “of the law of nations,” thereby ruling that the act could be employed.

Since then, the act has been invoked against former Filipino president Ferdinand Marcos and Bosnian Serb leader Radovan Karadzic, as well as a host of multinational corporations, including ChevronTexaco, Fresh Del Monte Produce and Unocal. Perhaps most famously, in 1998 Holocaust survivors and their families used the act to help secure a $1.25 billion settlement from Swiss banks accused of looting the bank accounts of Jewish Holocaust victims.

The Falun Gong practitioners seem to be modeling their efforts, at least rhetorically, after the campaign for Holocaust restitution. Terri Marsh, the Washington-based attorney for the Falun Gong practitioners, frequently refers to the “holocaust” perpetrated by the Chinese government and once asked reporters: “If Hitler visited the United States during the Holocaust, would this country have offered him immunity?”

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