Mohamad v. Palestinian Authority - Oral Argument - February 28, 2012

Mohamad v. Palestinian Authority

Media for Mohamad v. Palestinian Authority

Audio Transcription for Opinion Announcement - April 18, 2012 in Mohamad v. Palestinian Authority

Audio Transcription for Oral Argument - February 28, 2012 in Mohamad v. Palestinian Authority

John G. Roberts, Jr.:

We will hear argument next in case 11-88 Mohamad v. The Palestinian Authority.

Mr. Fisher.

Jeffrey Fisher:

Mr. Chief Justice, and may it please the Court:

Unlike the previous case, this case does not involve the need to formulate federal common law or to survey customary international law.

Here Congress has expressly created the cause of action at issue in a statute.

And we know that in every single other Federal court statute that Congress has ever enacted, it has provided for organizational liability.

As Justice Kennedy I think you put it earlier, it's a simple concept in our country.

John G. Roberts, Jr.:

We usually like -- we usually like to begin with the language of the statute.

Jeffrey Fisher:

That was my next sentence, Your Honor.

John G. Roberts, Jr.:

Well then go ahead.

Jeffrey Fisher:

Thank you.

The question arises in this case why did Congress use the word D.C. circuit that gave rise to the TVPA.

And in that case, Judge Edwards wrote a lengthy concurrence where he again and again used the word individual liability, and individual to describe the PLO which was the very defendant in that case against the backdrop of international law which uses the term individual to differentiate anyone from the state.

After Nuremberg, starting with the discussions recited most prominently in our reply brief at pages 6 to 8, Professor Jessup and many others discussed whether international law applies simply against states or whether it applies to quote individuals.

The word individual was used again and again to mean anyone but the state.

And as Professor Jessup and many others said it, includes organizations and juridical persons.

And this is the usage that Judge Edwards used in his opinion in Tel-Oren.

He uses the word 43 times in that opinion.

And if you look at nothing else--

Ruth Bader Ginsburg:

I thought you said that Judge Edwards opinion was about politically motivated terrorists, not coming within the Alien Tort Statute.

Jeffrey Fisher:

--No.

What Judge Edwards concluded, Justice Ginsburg, was that as he understood the Alien Tort Statute at the time against the backdrop of international law, that any private actor acting under color of law could be held liable.

And what Judge Edwards decided in that particular case was that the PLO as it then existed was not a state actor.

But the rule that Judge Edwards proscribed and this is at page 793 I believe in his concurrence was that individuals acting under color of law should be held liable.

That is the precise language that the TVPA uses.

So if you want to know where Congress got the word individual, and what it probably thought it meant, the best place to look is Judge Edwards' opinion.

Antonin Scalia:

Wait.

Congress got it from Judge Edwards.

Gee, my goodness.

Jeffrey Fisher:

I think, Justice Scalia, I think--