NDAA Amendment Could Make Anti-Terrorism Act a New Alien Tort Statute

When the Senate returns on December 9 to take up the National Defense Authorization Act, one of the more than 500 amendments Senators will consider is a provision that would amend the Anti-Terrorism Act to allow suits by non-US nationals against persons (including corporations) for “aiding and abetting” acts of terrorism.  Although perhaps not intended as such (although perhaps maybe so?), the amendment has the potential to reverse in part the Supreme Court’s decision in Kiobel v Royal Dutch Petroleum and to turn the ATA into a mini Alien Tort Statute. The amendment would allow “any person” (instead of a “national of the United States”) to bring suit in federal court against any person who commits, aids, abets or provides material support to an “act of international terrorism.”  The amendment would significantly expand the universe of possible plaintiffs and also reverse decisions by several appellate courts, including a decision earlier this year by the Second Circuit in Rothstein v UBS, that the ATA does not allow suits for aiding and abetting and that the conduct of the defendant must have been the “proximate cause” of the plaintiff’s injury.  The amendment also specifically states that it is intended to apply extraterritorially.   This clearly seems intended to overcome the presumption against extraterritoriality reaffirmed by the Supreme Court in Kiobel. The ATA has already been used by plaintiffs to sue (unsuccessfully) numerous U.S. and foreign corporations for allegedly aiding and abetting acts of international terrorism.  The proposed amendments would make these suits easier to bring and would allow non-U.S. nationals to bring them. Even more significant, the amendment could allow the resurrection of many suits against corporations (including “foreign-cubed” suits) that can no longer be brought under the Alien Tort Statute after Kiobel.  The ATA defines “international terrorism” to include “violent acts . . . [that] appear to be intended to intimidate or coerce a civilian population.”   This definition is broad enough to cover many of the suits brought against U.S. and foreign oil, mining, and agricultural corporations under the ATS for allegedly cooperating with local governments or using private security services to protect their investments or activities in foreign countries. In short, if this amendment were to be adopted, it could usher in a new wave of extraterritorial lawfare against U.S. and foreign corporations and turn federal courts into international civil courts with universal jurisdiction to hear actions brought by non-U.S. nationals involving terrorism or violence anywhere in the world.