Lawrence Hurley of Greenwire raises some good questions about the Obama Administration’s position with regards to Kiobel:
“Solicitor General Donald Verrilli, the administration’s top legal advocate, would be expected to weigh in on Kiobel, according to three former attorneys who have worked in the solicitor general’s office and other lawyers familiar with the legal issues.
Complicating matters is the fact that Verrilli’s top deputy, Sri Srinivasan, is recused from the case because he has defended corporations facing suit under the Alien Tort Statute.
A Justice Department spokesman confirmed that he will have no involvement in the case.”
Sri Srinivasan was involved in Sarei v. Rio Tinto. Small world.
Hurley goes on to imply that there may be some dissension on the issue over at Justice.
“One official with a keen interest in the subject is [State Department legal adviser Harold] Koh. In 2004, just before he became dean of Yale Law School, Koh wrote an article arguing in favor of corporate liability under the Alien Tort Statute.
[…] Attorney General Eric Holder, while in private practice, helped represent Chiquita Brands International Inc. over allegations it aided and abetted human rights violations in Colombia.”
Will they file a brief or will DoJ sit this one out? What position will the Administration take? Will Holder and Koh settle this in a Thunderdome buried deep underneath the National Mall? There is a big temptation to interpret DoJ’s decision, whatever it turns out to be, as the result of some long-running soap opera between the agency’s tweed and pinstripe factions. But I won’t go down that road … until I simply can’t resist it anymore.