Saturday, October 24, 2020

To Wage Legal Warfare One Must First Acquire a Territorial Connection: Hatice Cengiz v. Mohammed bin Salman, Case 1:20-cv-03009 (US Dist Ct for the District of Columbia)


Pix Credit: Fiancée Sues Saudi Crown Prince Over Khashoggi Killing


War today., at least war with significant geo-political consequences. are today rarely fought with armies.  To a large extent, and where it matters most (that is where the consequences of traditional warfare are topp great, the major (and great regional) powers now deploy armies of bureaucrats, lenders, cyber shockk troops, enterprises, social scientists, news and other well managed social media organs (yes, even or especially in the West), politicians . . . . and lawyers.  Clever lawyers (e.g.,  Lawfare: Law as a Weapon of War).   Despite an almost constant occurrence of traditional warfare at the edges  and margins of those actors of central importance to the global core of leadership, where consequences count, non-traditional warfare has proven quite effective.  And, as an added benefit, it preserves the spoils of war--the productive forces of defeated rivals.  In a sense, modern post-global warfare (the multiple generations of warfare that are now the object of great study and strategic use by those states capable of their deployment) preserves the goods, services, infrastructure, and laboring elements even as they acquire the advantages once assumed only possible through conventional war (e.g., The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment).

The circumstances around the death of Jamal Khashoggi serves as the the battlefield on which the opponents of the government of Saudi Arabia now wage war.  Initially the combatants deployed the traditional forces of diplomacy and strategically social agitation (especially useful as a management tool of assemblages of human collectives in liberal democracies, if one knows what one is doing), leveraged through the management of news and social media organs among networked news and media organs (especially the case where a media organ  becomes both combatant and chronicler of events, e.g., here).  In liberal democratic states that is undertaken through private markets for influence, and the consequences of control or contractual relationships embedded within autonomous private self referencing economic systems (e.g., here). That produced (from the perspectives of the opponents of the Saudi state) limited success (e.g., here, and here).

Now onto the battlefield come the lawyers. Initially the battle revolved around criminal sanctions that veiled the political war between Saudi Arabia and Turkey (e.g., here, and here). On 20 October 2020, the fiancé of Jamal Khashoggi along with  DAWN, a US non profit corporation, filed suit against a large number of Saudi officials--Hatice Cengiz v. Mohammed bin Salman, Case 1:20-cv-03009 (US Dist Ct D.C.). The Complaint seeks compensatory and punitive damages along with attorneys fees on the basis of claims for extra judicial killings under the Alien Tort Statute (28 USC §1350) and the Torture Victim Protection Act (28 USC §1350 note), along with claims for tortuous interference with contract, wrongful death, intentional infliction of emotional distress, loss of consortium, and loss of society.  

Brief reflections follow


The lawsuit fits within well established patterns of combat pioneered in the US and deeply embedded within ideologies of tort claims as they have matured over the last half century.  The practice suggests the way that private, market and harm based civil action may be used to supplement or compensate for failures of criminal law within states (Cf., here).  And, indeed, one can understand the practice in part of a means of privatizing criminal law.  yet its utility as a substitute or supplement to warfare--especially where not all combatants are states and thus capable to effectively waging conventional war, cannot be underestimated and as a tool serve any capable of wielding it (e.g., here; here).  Lawsuits like these serve not just as vehicles of personal vindication, but also as means of leveraging private law to change public policy.  As important, western judicial systems are now so politically intertwined with the mechanics of politics that they have become an indispensable part of augmenting voice and projecting it out through the vehicle of lawsuits (e.g., Chroniclers in the Field of Cultural Production: Courts, Law and the Interpretive ProcessRetaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges Dominion of Judge). The value of the lawsuit is not merely to seek punishment, then, but to aid in the political discrediting of leaders of the targeted state, and top ensure a wider audience for the narratives that the plaintiffs and their supporters would seek to normalize among the (voting) public (e.g.,  Chroniclers in the Field of Cultural Production, supra). Thus, for example, this is particularly relevant to the care taken with the factual exposition now incorporated into a readily accessible document (Hatice Cengiz v. Mohammed bin Salman, supra, ¶¶45-162).

 All of this is well known, and to some extent an efficient markets driven mechanism for the utilization of law as a weapon combat.  And to some extent profitable (otherwise it would not have become the efficient and increasingly used private markets based lawfare vehicle it now appears to be (here, here, and especially here (""Hijacking the justice system for political ends is common in less sophisticated democracies than our own. Dreyfus, on behalf of Labor, seems intent on making “lawfare” a feature of ours. A lawyer of his experience must have known the case against Taylor was never going to fly. His aim was not to put Taylor in the slammer, however; it was to put him in the stocks. The punishment is in the process, not the verdict.)).

But there are larger stakes involved as well.  In the case of the  Hatice Cengiz v. Mohammed bin Salman, it revolves around the renewed efforts to try to develop US courts as the courts of first instance to develop something like an international common law of human rights built around the principles of international law and overseen and interpreted by the judicial branch of the American federal government. That effort, once quite close to realization, was the victim of a series of Supreme Court decisions that effectively renationalized the ATS and the jurisdiction of US courts in ways that did not accord with what a faction of vanguard lawyers saw as the inevitable role of US courts in the emerging human rights centered world (legal) order (e.g., The Rise and Decline of the Alien Tort Statute).  Of course, in light of the current make up of the Supreme Court, the timing of the litigation, one grounded on a renewed effort to muscle up jurisdictional claims under the Alien Tort Claims Act and its fraternal statutory companions. Yet it might also indicate some sense of an impending change of administration and court packing in time for an eventual hearing of the case  before the US Supreme Court (and as a vehicle for overturning those decisions that have so stifled thew international lawyer class efforts to transform the US into international courts of first instance with effective universal jurisdiction. 

In this sense, the most interesting part of the claim, and the one most likely to have lasting effect beyond the advancement of the interests of the direct combatants in this particular battle, is the jurisdictional claim (Hatice Cengiz v. Mohammed bin Salman, supra, ¶¶36-44).

 36. This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the action arises under the Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note) and the Alien Tort Statute, 28 U.S.C. § 1350. The Court additionally has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332.

37. This Court has supplemental jurisdiction over Plaintiffs’ state law claims based on 28 U.S.C. § 1367.
38. The exercise of subject matter jurisdiction over this claim pursuant to the Alien Tort Statute is proper because the claim touches and concerns the United States. As detailed further below, significant portions of the conduct that is the subject of this complaint occurred inside the United States. For example, Defendants ensured that Mr. Khashoggi could not obtain a certificate of marriage eligibility from the Saudi Arabian Embassy in Washington, D.C. and advised him he must obtain the certificate in Istanbul, Turkey, for the purpose of forcing him to leave the United States and obtain the certificate in the location where Defendants ultimately murdered him. Defendant MBS also instructed the Saudi Ambassador to the United States, who was in the United States, to assure Mr. Khashoggi that it would be safe for Mr. Khashoggi to retrieve the document he needed at the Saudi Consulate in Istanbul. The Ambassador did so, setting in motion the chain of events that led to Mr. Khashoggi’s murder in the Consulate in Istanbul. Defendants’ actions were also purposefully aimed at the United States, as Mr. Khashoggi was a U.S.-resident journalist and human rights advocate. Defendants murdered him to silence said political activities in the United States. Defendants acted with the intent to lure Mr. Khashoggi outside of the United States and murder him.
39. The exercise of personal jurisdiction is appropriate under Fed. R. Civ. Proc. 4(k)(2) because this claim arises under the Alien Tort Statute and Torture Victim Protection Act, the Defendants are beyond the jurisdiction of any state’s courts of general jurisdiction, and exercising jurisdiction is consistent with the Constitution and United States law.
40. This suit arises out of and relates to Defendants’ contacts with the United States. Key steps in Defendants’ conspiracy to lure Mr. Khashoggi to his death in Istanbul occurred insideof the United States: the Defendants ensured that the Saudi Embassy in Washington, D.C. would not provide Mr. Khashoggi with a necessary document so that he would be forced to seek the document in Istanbul, and the Defendants arranged for the U.S.-based Saudi Ambassador to communicate to Mr. Khashoggi—falsely—that Mr. Khashoggi would be safe while retrieving the document in Istanbul. These actions laid the groundwork for Mr. Khashoggi’s murder. The Defendants’ U.S. contacts thus were key to achieving the extrajudicial killing at the center of this suit.
41. Furthermore, the Defendants’ actions were directed and aimed at the United States in critical respects. Mr. Khashoggi was a U.S. resident and widely-respected journalist and advocate who had become the Executive Director of Plaintiff DAWN, which is incorporated in the United States with its principal offices in Washington, D.C. On information and belief, each Defendant was aware of Mr. Khashoggi’s U.S. ties and brutally killed Mr. Khashoggi to silence him and prevent him from continuing in the United States his advocacy for democracy in the Arab world.
42. Mr. Khashoggi’s assassination is a tragedy with worldwide ramifications to be sure, but personal jurisdiction over Defendants in this forum is appropriate both because significant aspects of Defendants’ wrongful conduct took place in the United States and because Defendants undertook wrongful conduct in the United States, the intended and actual effect of which, was to silence Mr. Khashoggi’s political advocacy in the United States – advocacy that was especially threatening to Defendants precisely because it occurred in the United States and so touched Defendants’ economic and political interests there.
43. This court also has pendent personal jurisdiction over Defendants with regard to Plaintiffs’ common law claims, including for intentional infliction of emotional distress, loss ofconsortium, loss of society, and tortious interference of contract, because these claims share a common nucleus of operative fact with Plaintiffs’ federal claims.
44. Venue is proper in this Court pursuant to the rules of pendent venue and 28 U.S.C. § 1391(b)(2) because a substantial part of the events constituting the conspiracy leading to Mr. Khashoggi’s murder occurred in this judicial district. Alternatively, venue is proper pursuant to 28 U.S.C. § 1391(b)(3) because there is no district in which this action may otherwise be brought and because Defendants are subject to the Court’s personal jurisdiction with regard to this action.

As interpreted by the US Supreme Court currently, lawfare undertaken within the  territory (e.g., the jurisdiction) of US courts must be sufficiently connected to the territory of the state form which the courts derive their authority. The operative language ("touches and concerns" is ambiguous enough to give the judiciary substantial discretion in its application (subject of course to a judge's ability to strategically maneuver through or around precedent)) (See the excellent essay, Maria Chiara Marullo and Fransisco Javier Zamora Cabot, "Transnational Human Rights Litigation--Kiobel's Touch and Concern: A Test Under Construction," Huri-Age Consolider-Ingenio 2010, Papeles en Tiempo de los Derechos 1 (2016) ("Even those of us who only know the US legal system superficially, can guess that these few and generic words of the Supreme Court afford enormous leeway regarding interpretation") p. 16).  It is with in the spaces created by this leeway that courts may use law to direct politics int he way that exercises of judicial discretion in equity is informed by the normative principles understood, valued and vindicated.

To that end it is necessary to construct a narrative with sufficient power to permit courts to accept the invitation to connect the dots between the events that occurred in Istanbul and those that took place in the United States. That is, in this case, a function of the strength of the argument that there was not a series of (legally) disconnected events but rather only one (legally) unified event from which liability follows (¶38). That unified narrative is then the basis for the assertion of personal jurisdiction against individuals with no other connection with the territory of the United States (¶39).  The difficulty is apparent in ¶40 (the site of the development of the conspiracy--was it in the Saudi Embassy in Washington or elsewhere?)and in ¶¶41-42 (was the action aimed at the United States--that is that the violation was a political killing in which the object was to affect political relations between sovereigns of which the victim was merely its personification or means). Conspiracy is meant to resolve those issues favorably to the plaintiffs as is the appeal to politics (§42)--that is that the killing was collateral to the primary objective, to help manage US-Saudi relations. 

It is here that the case assumes its most important aspects, beyond the specific interests of the litigants. The development of theories of judicial territory appear to hold promise for the re-construction of the US courts as venues for the resolution of global human rights claims.  The success of this effort will have profound effects on everything from the litigation of political action (further moving human rights principles into the realm of tort--but also moving politics there as well), to the movement of human rights litigation to the United States, and through it, to the internationalization of US human rights tort cultures and approaches.  That may be welcomed by the lawyer-judicial vanguard, especially that portion still loyal to the vision of the emerging world order--administrative-regulatory and compliance-accountability driven overseen by authoritative (inter)national (US) courts--but it is not clear whether the move in that direction is still premature. For those still loyal to that vision, however, there is little alternative but actions like these.  And even if they fail, they will have managed a substantial action from which political and international relations victories might yet be extracted.   

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