Photo by Linda Ford

Paul Hoffman, whose office overlooks the Venice boardwalk, has earned a reputation as one of the leading human rights lawyers in the country.

March 2009
BY MILES CORWIN

For years Paul Hoffman had devoted his law career to representing the poor, the dispossessed, people who were discriminated against, and victims of abuse and torture by repressive regimes. In the early '90s, however, while serving as the legal director of the American Civil Liberties Union of Southern California, he found himself representing a very different kind of client: a Mexican doctor by the name of Humberto Alvarez-Machain. Instead of being a victim, Alvarez-Machain was alleged to be a victimizer, a man who—along with members of a Mexican drug cartel—stood accused of participating in the torture and murder of Enrique Camarena Salazar, a U.S. Drug Enforcement Administration (DEA) agent in Mexico.

Five years after Salazar's 1985 murder, a grand jury in Los Angeles indicted Alvarez-Machain for his alleged role in the kidnapping and killing. But instead of formally extraditing him from Mexico, the DEA paid a Mexican bounty hunter to abduct the doctor and transport him to the United States, where he was scheduled to stand trial.

That criminal case, which Hoffman wasn't involved in, ended in 1992 when Alvarez-Machain was acquitted of all charges. (The presiding federal judge found the government's case to be based on "hunches" and "wild speculation.") But the civil suit that the doctor in turn filed against his kidnapper, Jose Francisco Sosa, would drag on for many more years, and eventually Hoffman would argue it before the U.S. Supreme Court.

"I never believed [Alvarez-Machain] was involved in Camarena's torture. ... I've never seen evidence to support the government's belief that he was," Hoffman says. When asked, though, if he would have represented Alvarez-Machain even if he had proof of his guilt, Hoffman, a heavy, barrel-chested man in his late fifties, pauses and strokes his chin. "Possibly. ... [But] it's not OK to kidnap people from foreign countries. The U.S. has to adhere to international law standards. ... The legal principles might have been important enough."

The fundamental question before the high court in March 2004 (Sosa v. Alvarez-Machain, 542 U.S. 692) was whether the federal Alien Tort Claims Act (ATCA)—a law passed in 1789 by the nation's first Congress—could be used, as Hoffman had used it, to bring actions in U.S. courts for violations of the "law of nations."

At the time the law was enacted, it was directed primarily against sea piracy and attacks on ambassadors. For the better part of the next two centuries, however, it was virtually ignored. Then, in 1980, the family of a young man who had been tortured to death by police in Paraguay won the right to sue for damages under the ATCA (Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)). In 1984 a federal court issued a $10.4 million judgment against one of the implicated police officers then living in Brooklyn. No money ever changed hands, because the officer who owed the damages fled the country. But the case gave new life to an old, forgotten law, and it has since been invoked in more than 200 cases.

The first of these to come before the Supreme Court was Sosa. At one critical point in the oral arguments, Hoffman had this spirited exchange with Justice Antonin Scalia over the legitimacy of the ATCA as a basis for human rights claims.

Scalia: Part of the problem I have with your proposal is that it leaves it up to the courts to decide what the law of nations is. ... The Ninth Circuit here derived a law of nations principle from, among other things, treaties that we had refused to sign, international agreements that we had reserved against. I find that a serious interference with the ability of the political branches to conduct our foreign affairs.

Hoffman: I have two responses, Justice Scalia, to that question. ...In terms of whether the law of nations is too indeterminate—"boundless" I think is the word that's used in the petitioner's brief—this Court has affirmed at least on two occasions that I'm aware of ... that [the law of nations] is not indeterminate enough to justify a death sentence against the pirate in the United States v. Smith in 1820 and 120-some-odd years later against Nazi saboteurs in Ex parte Quirin ...

Scalia: ... [T]hose are pretty polar instances, piracy and sabotage in times of war. We're talking here about other matters that are not—not at all polar. And sure, I can tell you some things that everybody would agree is against the law of nations, but there are a lot of things in between that the European Union may think is bad and we may not think is bad.

Hoffman: ... [A]ctually, I think that would not be a correct view, either, of what the courts did or what the courts ought to do. In fact, there are a relative handful of cases under the alien tort statute in the last 25 years in which there have been findings about violations of the law of nations. They involve claims of torture, genocide, war crimes, crimes against humanity—clearly norms that the United States has not supported from Nuremberg on down.

Hoffman did not win the case for his client. In fact, the justices unanimously overturned the Ninth Circuit's decision upholding a $25,000 trial court judgment against Sosa. As Justice David H. Souter observed in his opinion for the Court: "A single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violated no norm of customary international law so well defined as to support the creation of a federal remedy." (542 U.S. at 738.)

On the larger question of how broadly ATCA can be applied, though, Hoffman scored a critical, albeit qualified, victory. By a margin of 6—3, the Court rejected the arguments of both the Bush administration and the business community that the use of ATCA in international human rights cases should be precluded. The door to ATCA suits "is still ajar," Souter wrote, "subject to vigilant door keeping, and thus open to a narrow class of international norms today." Souter added that the courts must be "particularly wary of impinging on the discretion of the Legislative and Executive branches in managing foreign affairs." (542 U.S. at 728—29.)

It was, to be sure, a heavily nuanced opinion. Yet Souter's careful crafting failed to deter three of his colleagues—justices William H. Rehnquist, Clarence Thomas, and Scalia—from issuing a pointed concurring opinion. "This court seems incapable of admitting that some matters—any matters—are none of its business," Scalia wrote for the three. "In today's latest victory for its Never Say Never Jurisprudence, the Court ignores its own conclusion that ATCA provides only jurisdiction, wags a finger at the lower courts for going too far, and then—repeating the same formula the ambitious lower courts themselves have used—invites them to try again." The majority opinion, he added, gave credence to "a 20th century invention of internationalist law professors and human-rights advocates." (542 U.S. at 750.)

Hoffman's interest in international affairs was forged in his childhood. His father, a salesman in the Bronx, lost part of his extended family in Lithuania during the Holocaust. His mother was an English war bride. After Hoffman graduated from City College of New York in 1972, he received a master's degree at the London School of Economics. "I really focused on international human rights cases that year," he says. "My tutor was a Ugandan Asian who'd been involved with the government overthrown by Idi Amin. He had to be smuggled out of the country. I spent a lot of that year dealing with issues in Uganda and became familiar with the work Amnesty International was doing." He also spent that year weighing whether to become a lawyer or an academic, and ended up choosing the former. "I decided I didn't want to be in the ivory tower," he says.

Hoffman got his law degree from NYU in 1976 and, during the early 1980s, he founded Amnesty International's legal support network and served as its national coordinator. Then, as legal director of the ACLU of Southern California—a position he held for ten years—he pursued two landmark cases on behalf of AIDS victims who faced discrimination.

However, after arguing Sosa, Hoffman became more widely known as the nation's leading ATCA litigator. These cases are important, he says one recent Friday in his Venice office, just above the beachside boardwalk: "They're the main vehicle in U.S. courts to hold human rights violators accountable, whether they're foreign leaders or American corporations."

A suit Hoffman filed against Unocal Corp. in 1996 on behalf of 15 Burmese villagers is fairly typical of the 20 ATCA-related battles he's fought since Sosa. The villagers claimed Unocal should have intervened when soldiers forced them to clear a path through thick jungle for a natural gas pipeline. They claimed they were given little food, water, or rest. Soldiers allegedly murdered one villager and raped others.

The Unocal suit made history because it was the first time ATCA had been used against a U.S. corporation doing business overseas. "Ten, twenty years ago, there was this realization that government didn't have the power to hold corporate behemoths to account," Hoffman says. "This is one way to do it."

After Unocal settled the case in 2005 (the terms remain confidential), Hoffman and several other lawyers visited the Thailand-Burma border and met with the villagers he had represented. There, the stakes behind the abstruse legal issues he had wrestled with suddenly became more real to him. "It was an amazing experience," he recalls. "We saw where the plaintiffs lived and saw how the settlement made their lives much better. We saw the building of schools and churches. We'd made a big impact on their lives. It was very moving."

Of course, not all ATCA cases work out so well for the plaintiffs. Just last December, in fact, a federal jury in San Francisco rejected claims Hoffman helped bring against Chevron over what happened to protestors ten years ago on an occupied offshore-drilling platform in Nigeria (Bowoto v. Chevron Corp., 99-CV-02506 (jury verdict Dec. 1, 2008)). Survivors of the incident contended that the oil company was responsible for Nigerian troops killing two protestors and wounding two others, because Chevron summoned, financed, and transported the troops to the platform by helicopter. Chevron's attorneys asserted that the company was forced to respond to a hostile invasion that put its workers' lives at risk.

"People should understand that these cases are very difficult," says Hoffman, who filed the original complaint and argued several motions, though he was not involved in the trial. "Asking juries here to award damages against U.S. corporations for events that take place in another part of the world is very difficult. But it's very important that American courts be forums for justice in these international human rights claims. And the fact that a jury verdict is lost is certainly not going to dissuade any of us from bringing these cases."

Apart from their legal challenges, human rights suits can also be emotionally hard on people. "It's very important to find out what clients in these cases really want," says Naomi Roht-Arriaza, a professor at UC Hastings College of the Law who has worked with Hoffman on several cases. "It's not just money, but an acknowledgement of what happened to them and changes in how a company does business."

One of Hoffman's most memorable clients is Elizabeth Demissie, a naturalized U.S. citizen who, as a teenager, was imprisoned in an Ethiopian jail for six months. There she was hung upside down, beaten, and tortured. Her sister disappeared from the prison, never to be heard from again, and her father was found shot to death. Nine years later, after she had moved to Los Angeles, Demissie heard from a friend in Atlanta who had been abused at the same jail. This friend was working at a hotel, and she called Demissie because she had just spotted a bellman who she believed was Kelbesso Negewo—the man who had tortured both of them. Demissie flew to Atlanta to confirm that the bellman was indeed Negewo, and a lawyer there contacted Hoffman about representing her. At the time, Hoffman was working with the ACLU.

"I had never spoken about what happened to me," recounts Demissie, who now works in New York City. "I told him that I didn't know if I could talk about it. But Paul made me feel at ease. He wasn't intrusive; he was very kind. He said gently, 'Just try to tell me what you remember.' I started talking and crying. I think we both cried. I felt very connected to him from that very first meeting. To this date, we're still good friends."

Hoffman tried the case against Negewo in federal court and won $1.5 million in damages for Demissie, her friend, and a third torture victim. However, they collected only a small percentage of the award before Negewo was deported back to Ethiopia.

Hoffman's ability to work long hours is legendary, but it has taken a toll. A few years ago he suffered a heart attack; now he is battling bladder cancer. He has also had to deal with a professional setback: In 2007 he was sanctioned in a case he joined at the request of a friend; the judge found that the three plaintiffs attorneys had not properly investigated their clients' claims. (Hoffman has appealed the order.)

Meanwhile, despite the urgings of friends and former associates, Hoffman continues to carry a full caseload. (Among his current cases, he's representing victims of South Africa's apartheid regime in suits against a number of corporations that allegedly supported the government.) "Paul's not a workaholic, but he [still] works too much," says Gary Bostwick, a former partner. "Paul finds meaning in a lot of things, like his family. But he works too hard for his own well-being. If you're a friend of a person like that, you try to convince them to take better care of themselves. For Paul, the work is so important and fulfilling, it just keeps driving him."

With Barack Obama now president and a new justice department in place, Hoffman believes that litigating ATCA cases may actually get a little easier. "It doesn't mean the Obama administration will support every case," he says. "But at least it won't be instinctively opposed to using the U.S. courts to obtain accountability."

Miles Corwin, a former reporter for the Los Angeles Times and the author of three books, teaches literary journalism at UC Irvine.