CHICAGO (FAXX/jGLi) – If a foreigner commits torture and murder against another foreigner in a foreign land and escapes prosecution by going to the United States, the fugitive foreigner cannot use the U.S. as a safe harbor.
This was the ruling Thursday (Nov. 7) handed down by Judge William Alsup of the U.S. District Court of Northern California in San Francisco, who “granted in part” the motion for default judgment against Michael Ray Aquino filed by the orphaned children of Salvador “Bubby” Dacer, who sought at least $10-Million compensatory and $50-Million punitive damages against Aquino based on Alien Tort Statute (ATS), 28. U.S.C. Sec. 1350.
Judge Alsup issued the ruling after a two-minute pre-trial hearing Thursday for the plaintiffs’ “notice of motion and motion for default judgment by court of defendant Michael Ray Aquino, memorandum of points and authorities in support thereof.”
Alsup also set the “trial/prove up hearing” of the case on Nov. 18 at 7:30 a.m. when the Dacer children Carina Dacer, Sabina Dacer-Reyes, Amparo Dacer-Henson and Emily Dacer-Hungerford, all residing in the United States, are expected to testify on their claims.
Dacer’s lawyer, Filipino American Rodel Rodis, felt pessimistic of getting a favorable ruling in the case when a unanimous U.S. Supreme Court last April 17 narrowed recognition of private claims by federal courts to “violation of safe conducts, infringement of the rights of ambassadors, and piracy” on the case of Kiobel v. Royal Dutch Petroleum, 621 F. 3rd 111.
But when Rodis pointed out that “where the claims touch and concern the territory of the United states, they must do so with sufficient force to displace the presumption against extraterritorial application,” this applies to Dacers, citing the concurring opinion in Kiobel held by Justice Breyer and concurred in by Justices Ginsburg, Sotomayor and Kagan.
The concurring opinion held that “Congress has enacted other statutes, and not only criminal statutes, that allow the United States to prosecute (or allow victims to obtain damages from) foreign persons, who injure foreign victims by committing abroad torture, genocide, and other heinous acts.
”Private right of action on behalf of individuals harmed by an act of torture or extrajudicial killing committed ‘under actual or apparent authority, or color of law, of any foreign nation (committed) by torturers and death squads will no longer have a safe haven in the United States, by providing a civil cause of action in U.S. courts for torture committed abroad.”
WHEN AQUINO FLED TO THE U.S. HE USED IT AS SAFE HARBOR
Rodis told Judge Alsup when Aquino fled the Philippines in July 2001 following the November 2000 murders in the Philippines after learning from Defendant Panfilo Lacson in May 2001 that a warrant of arrest was issued for him in connection with his central role in the murders of Dacer and Dacer’s driver, Emmanuel Corbito, Aquino used the United States as a safe harbor when he fled to the U.S.
Jurisdiction under the ATS could be found where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important U.S. interest, including preventing the United States from becoming ‘a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.’ ”
This case should qualify as an exception to the presumption against extraterritoriality enunciated in Kiobel, Rodis implored. “This Court has personal jurisdiction over this Defendant (Aquino) who not only resided in the United States until he was sentenced to a jail term in New Jersey and eventually extradited to the Philippines but also because he submitted to the jurisdiction of this Court when he filed his Answer to the Complaint on September 7, 2011. This Defendant has also availed himself of the security and/or sanctuary of the United States.
“To prevail on a defense of exhaustion for claims under ATCA (Alien Tort Claims Act), defendant must first show that exhaustion is required. Exhaustion may be required if the action lacks a significant nexus to the U.S. or does not pertain to an offense of universal concern.”
Rodis added the action has “nexus to the U.S.” because one of the plaintiffs is a U.S. citizen and defendant Aquino lived in the U.S. for years and was found guilty of illegally possessing classified government documents. The alleged conduct involves torture and murder for political ends” whose gravity “and potential violation of international law make this matter a universal concern.”
Meanwhile, the plaintiffs are still bent on serving a courtesy copy of the default motion on Aquino’s former superior (former) Senator (Panfilo) Lacson.
Because “no other named defendants were served summon (in the case) other than Defendant Glenn Dumlao, the case will be voluntarily dismissed,” Rodis said.
Aside from former General Lacson, Aquino and Dumlao, the other defendants in the original $120-Million double murder civil suit are former President now Manila Mayor Joseph Estrada, Philippine Amusement and Gaming Corporation chief Reynaldo “Butch” Tenorio, businessman Dante Tan, and Chief Inspector Vicente Arnado, believed still hiding in the U.S., and “Does 1-100, inclusive.”
