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Their lives snuffed out, justice is sought for murder victims in a Birmingham, Alabama courtroom.

If this sounds eerily familiar, it is. The victims are not, however, the four Black girls killed in the Birmingham church bombing of 1963. The three dead victims were all employees --- and union leaders --- at the Birmingham-based Drummond Coal Company in God-forsaken northeast Colombia. The civil lawsuit --- a tort action by which money damages are sought for an alleged wrongful act --- maintains that the killers of the three Colombian Drummond workers in 2001 were union-busting goons in the hire of the Drummond Coal Company

In a potentially blockbuster lawsuit --- which could go all the way to the US Supreme Court --- the Colombian labor union is using a unique, obscure 1789 US law to seek justice and compensation from the Drummond Company and Garry N. Drummond, the CEO, for the brutal tortures and murders of the union leaders. The civil lawsuit --- alleging a tort, not a crime --- is being heard under the gavel of a President Bush appointee in Birmingham, Drummond's corporate home. The next round---pretrial litigation and discovery --- is expected this fall.

In an April 14, 2003 ruling, federal judge Karon O. Bowdre flashed the green light to the Colombia labor union suit to proceed. Now, the burden is on the plaintiffs to prove the outrageous charges against the Drummond Company and its CEO, one of Alabama's most prominent businesses and behind-the-scenes powerbrokers.

Union leaders and associates of the three slain Colombian workers report from Colombia's capital city and from the front-line trenches of Drummond's gigantic, open pit coal mine in La Loma, Colombia that to this day Drummond and right-wing paramilitaries continue to harass, threaten, and repress union members.

Drummond officials here in Bogota and in Birmingham say recently that the coal mining business is "good" in Colombia and that relations between Drummond and its Colombian union are "good." Beyond that, Drummond's spokesman says he is under orders not to comment on the lawsuit to the media, "although we did talk about the case with the Wall Street Journal" which is planning an article.

"Peligroso," is the succinct response from the successor of the three murdered union leaders from his union office near the Drummond mines. The word means "dangerous" in English.

Rail-thin, wringing his brown hands nervously, the veteran coal miner, Alejandro Vergara, reluctantly assumed the union reins after his co-workers were murdered in front of his other co-workers. "Someone has to step up," he says, eyeball to eyeball. "If they kill me, someone else will take my place."

He explains, in Spanish, that no one has been arrested or charged by the Colombian police or government in the three murders, similar to hundreds of other cases of murdered or "disappeared" union members throughout Colombia.

"We have nowhere else to turn except to the US court to seek some kind of justice," he says.

Vergara, at great peril to his own safety, reveals that current conditions for the Colombian coal miners employed by Drummond remain not only dangerous but Drummond continues to suppress, sometimes subtly and sometimes not so subtly, the union movement and to lay off union workers. One Drummond employee, he says, was driven to suicide recently. Another fled Colombia because three family members were murdered due to the workerís involvement with the union.

One of Vergara's associates, Francisco Ruiz, is in the US, forced to flee his work, his country, and his wife and five children.

"It was not safe at La Loma," he tells union officials in the US. "Our mine was surrounded and controlled by rightwing paramilitary, including many trained and funded by US money."

The displaced Colombia coal miner goes on with his story, claiming that the Colombian military is stationed near the coal mines to combat the left wing communist terrorists "but they refuse to act against the illegal rightwing groups."

He says the Colombia government will not heed the union's pleas. "They say Drummond needs free reign to be productive and boost Colombia's economy!"

Ruiz says Drummond will not allow Colombian union workers to spend the night in company barracks --- which US and contract workers use. "Drummond forces us to travel back and forth to our homes through dangerous territory," he says.

In a worldwide promotion, the Drummond Coal Company touts thusly its product from Colombia: "Drummond has been listening to the marketplace and we have found a coal that is both friendly to the environment and economically beneficial. It's called 'Aire Amigo' (Friendly Air), a Drummond discovery in Colombia that meets your combined environmental and economic challenges."

The ad does not mention that this "Friendly Coal" is dripping with the blood of murdered Colombia coal miners as it arrives in Mobile, Alabama for Drummond's Southern Company electricity customers in Alabama, Mississippi, Florida, and Georgia.

"I cannot tell Alabama Power where to buy its coal," says George Wallace, Jr., from his Alabama Public Service Commission office. "I am concerned about the loss of jobs by Alabama coal miners, but I can only highlight the need for companies to buy as much Alabama coal as possible."

Alabama coal miners say they were told by Drummond officials that Drummond's plunge for profits into Colombia in the mid-90s would never lead to Colombian coal being imported into Alabama. Now, the Alabama coal miners are being laid off from their $20 an hour jobs and the Colombian coal --- with wages to Colombian miners between $3 and $5 per hour --- keeps electricity flowing for Alabama consumers. "We cannot compete," the Alabama miners tell me. "Therefore, we are laid off or pushed to take greater risks and go deeper and deeper underground for coal here in Alabama."

Alabama coal miners tell me they are sympathetic for their murdered and harassed union brethren in Colombia, but they have also been urged by the higher-ups in the US union not to comment on the ongoing Colombian situation. Despite these sanctions, Alabama miners say that Drummond influences --- at high levels --- US policy in Colombia, in order to make the climate more favorable for more importation of cheap, high-quality Colombian coal into the US

Drummond's lead lawyer, William Jeffres of the prestigious Washington, DC and Houston law firm of Baker Botts, maintains that the Colombian union's charges against Drummond are "false" and "not just lies, but damnable lies."

"Drummond has become one of the targets of the US labor lawyers," says Jeffres. "Organized labor in the US is angry because they are losing jobs overseas.

"None of these suits under the Alien Tort Claims Act (ATCA) has been successful yet."

Jeffres also says the US Supreme Court has never ruled on the constitutionality of the 1789 ATCA (Alien Tort Claims Act), but the Drummond case or one of the rash of others against a US multinational could well make it all the way to the highest court in the US.

"The Federal judge merely issued a judgment to allow us (the Colombian union) to proceed," says Richard Rouco, a Birmingham lawyer with the Whatley-Drake firm, part of the plaintiff's legal team along with lawyers from the International Labor Relief Fund in Washington and the United Steelworkers in Pittsburgh. "We are over a major hurdle, but now we have to prove our allegations --- or facts --- described in our lawsuit."

Rouco says Judge Bowdre's decision avers that the Colombian union has a standing to bring a civil suit for wrongdoing --- a tort --- for violations of human rights of their members. The judge also declared that the Colombian employees of Drummond have a right to organize under international law.

"If the Colombian union can prove there was an effort --- by Drummond -- - to intimidate or to murder in order to squelch union activities," said Rouco, "we can win."

"This is an unusual case," says Rouco. "As the US becomes more global and multinational, there will be more of these cases," he predicts, adding, unless US Republicans can repeal the ATCA. The ATCA permits non-citizens to utilize US courts to address wrongdoing abroad by Americans. "Under the ATCA, US companies cannot go abroad --- as Drummond has done in Colombia --- and do as they please without impunity.

"These people (Drummond's Colombian employees) have a fundamental right to associate and to organize," Rouco says, explaining Judge Bowdre's decision to permit the case to move forward. "US corporations can be held accountable in US courts for this type of adverse activity toward their foreign workers in foreign countries.î

Rouco goes on to say that the burden of proof --- actually proving the allegations in US Federal District Court and before a jury --- will be difficult --- due to the logistics. "We definitely have a cause of action --- as recognized by Judge Bowdre --- but now we have to prove the facts."

Many legal pundits agree.

"The original Alien Torts Claim Act of 1789 was not designed for this purpose," instructs Wythe Holt, a law professor and constitutional historian at the University of Alabama Law School. "The ATCA was designed in 1789 to promote international development... not to protect workers. I think it is highly unlikely that a US judge --- she was appointed by President Bush --- will let the Colombia union win."

"This lawsuit by the Colombia union is a very novel approach that has extraordinary implications for the internationalization of labor," says Holt, "because US multinationals will now have to pay more to foreign workers and to pay more for the workers' safety and protection. We have seen the globalization of capital which has allowed the US multinationals to go abroad for profits... now we are seeing the globalization of labor and union organizing."

Delaine Mountain, one of Alabama's prominent and successful trial lawyers and a dyed-in-the wool, yellow dog Democrat, says the tort case would be almost a slam dunk if the deaths had taken place in the US. "But with the distance and all involved, it will be very difficult for the Colombian union to prove wrongdoing in court --- to link Drummond to the smoking gun --- here in Birmingham," says Mountain from his Tuscaloosa, Alabama office.

The Colombian union's lead lawyer, Terry Collingsworth, maintains Drummond --- and other US corporations --- have taken advantage of the civil war in Colombia where union members are assassinated on a regular basis with impunity.

"We have evidence that the paramilitaries who killed the three Colombian union leaders were in fact working for Drummond," claims Collingsworth from his Washington, DC office of the International Labor Relief Fund. Collingsworth maintains that a former Drummond employee has provided information on the transfer of funds from Drummond in Alabama to Colombia for paying the paramilitaries.

The lawsuit filed by Sintramienergetica, the Colombian union of Drummond's mine workers, claims that Augustus Jiminez, Drummond's top executive in Colombia, intimidated union leaders during contract negotiations before the murders, telling them "the fish that opens his mouth dies!"

Over 600 union actvists have been murdered in Colombia over the past four years. Only one of these murders has resulted in an indictment.

The Alien Tort Claims Act of 1789 has been re-discovered in the past few years in response to the globalization of US multinationals. Attorney Collingsworth's non-proft group,the ILRF, and attorney Dan Kovalik's Steelworkers are using the law to send a strong message to corporations --- it is simply not acceptable to profit from human rights violations.

In addition to charging the Drummond Company and Garry Drummond with hiring paramilitary gunmen to torture, kidnap, and murder union leaders in Drummond's employ in Colombia, the 1789 law has been cited against Union Oil Company of California for forcing Burmese slave labor in Burma to build an oil pipeline. The ILRF has also sued Exxon Mobil Corp, accusing the energy company of financing the Indonesian military's atrocities against indigenous Indonesians in the protection of its natural gas facilities. In another notorious Colombian case, a tort claim has been levied against Coca-Cola bottlers in Colombia for backing death squads --- right wing paramilitary --- in the intimidation and murder of workers and their union.

"Colombia is involved in a holocaust of Biblical proportions," the country's Nobel literary laureate Gabriel García Marquez tells me.

Drummond is sucked into the turmoil as it pours millions of dollars into coal mining operations in Colombia, spending massive, unanticipated amounts on arms, private security, and---now--- legal defense. The wide-ranging Drummond Company empire has annual sales in the $800 million range---about 60 percent generated from its 16 tons of coal produced annually in Colombia--- and has invested nearly a billion dollars in the Colombian coal operations, according to published reports.

Vergara, the gutsy, articulate Colombia union leader, points out that the internecine, interminable civil conflict in Colombia is highly misunderstood by the US and US news media.

"Our problems in Colombia are not caused by the ruthless narco- traffickers, by the leftwing guerrilla, by the rightwing paramilitary," says Vergara. "These are all symptoms of our problems which have been around for generations---the lack of jobs, the battles over land rights, and the need for basic necessities of life.

"In Colombia, we do not need more military aid from the US," he says. "What we need in Colombia is real security based on human rights and basic levels of social and economic rights."

Vergara laments the Bush Administration, with the support of Alabama's two US Senators, appears to be hell-bent on forging ahead with the worn-out policies of the past in Colombia --- fighting the drug war and fighting the communist insurgents --- with a new double twist --- going after officially classified terrorists on the right and the left, and protecting US multinationals from the constant sabotage of energy resources harvested from Colombia's bountiful but bloodied earth. The US State Department's "terrorists" in Colombia are combatants in Colombia's civil war and not an actual threat to US soil, says the Colombian.

This is another point where the lawsuit against Drummond gets sticky because it is precisely this perpetual, complex conflict in Colombia --- a conflagration between the haves and the have-nots --- that Drummond is using as one reason for the suit to be dismissed. Drummond lawyers argue that the case presents the political question doctrine because it involves the US and Colombian government efforts to combat political violence. Therefore, the court should not interfere with US foreign policy, goes the ironic if not cynical Drummond rationale.

On a recent visit to Alabama, Ligia Inés Alzate, an officer in a Colombian union, said the hiring of paramilitary groups --- right wing death squads which have been classified as "terrorists" by the US government --- to murder and to threaten union leaders is a common practice by US companies operating in Colombia. The corporations and the paramilitary falsely accuse the unions of being in cahoots with the terrorist, leftwing communists. The unions are not allowed to be neutral, she comments.

Drummond knew these type of union-intimidating activities occur in Colombia when it decided to move its coal mining operations there,î says Cecil Roberts, international president of the UMWA (United Mine Workers of America) in Fairfax, Virginia.

Colombia remains a powderkeg, threatening to explode and to engulf the entire Andean region of South America.

The US is preparing to dump millions more dollars --- 80 percent of it military aid --- into this tar baby of the Western Hemisphere. Colombia ranks third in US foreign aid --- behind only Israel and Egypt. Much of the US money --- goes the Colombian union line --- finds its way to the Colombia military, some of which either condone or participate in the rightwing atrocities. Even now, a significant US military presence as well as significant US civilians on lucrative US Defense Department contracts are evident --- and growing --- throughout Colombia.

Reminiscent of the Spanish Civil War of the 1930s, Colombia's war --- sui generis --- is obviously a different time and a different place. But the Hispanic artists --- Dali in "Autumn Cannibalism" and Picasso in "Guernica" --- classically capture the surreal brutality and futility of civil war which is replicated in Colombia.

In Dali's work, the Iberian animals devour each other, expressing the pathos of civil war that Dali considered a phenomenon of natural history. Picasso's horrific rendition of civil war reflects more of a political genesis. Some 66 years later, Colombia is a lamentable, confoundable reflection of both artists. Such is the milieu in which Alabama's Drummond Company --- and the US government --- finds itself in Colombia --- the Western Hemisphere's second oldest democracy.


(Stephen Flanagan Jackson is associate professor at Stillman College in Tuscaloosa and associate editor of The Latin American Post (latinamericanpost.com) in Bogota. Contact him at sfjackson10@hotmail.com)

One of the very first laws that the first US Congress passed was the Federal Judicature Act, a section of which provided that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States...." This section, which was not enforced for nearly 200 years, became known as the Alien Tort Claims Act.

At the time, the "law of nations" --- international law --- was much smaller than it is today. The concept of the high seas, which had been introduced into western legal scholarship in the 1600s by the Dutch jurist Hugo Grotius, was still not universally accepted. Only recently had the European powers tacitly agreed that maritime piracy was a violation of international law and that those who engaged in it were "hostes humanis generis" --- enemies of all humanity - -- who could be arrested and punished by any nation.

The United States of that time was a small country on the eastern coast of North America, the product of a revolution that had been fought against Great Britain in large part because the British had, through the Navigation Acts and other measures, sought to suppress American aspirations to become a maritime trading power in its own right.

The US international legal concerns of 1789 were largely of a maritime nature. The Islamic powers of North Africa didn't accept the principle of the high seas, claimed the Mediterranean Sea as their territory, and sought to collect tolls from or enforce bans against American ships, sometimes affecting the rights of foreigners with cargoes aboard such vessels. Britain didn't entirely accept the reality of US independence, and from time to time British warships would intercept US merchant vessels to kidnap sailors, both Americans and non-Americans, and impress them into military service. Ordinary seafaring criminals raided American ships, committing outrages against crews and passengers who were not necessarily American citizens. Moreover, there was a legacy of pirates marauding around the world from ports in the colonies that became the United States, and the new government to suppress that tradition in order for the new nation to become a respectable trading power. Although the records of the legislative debate are scanty, it is believed that these were the sorts of wrongs for which the First Congress sought to create legal redress in the federal courts.

The problems were that the people for whose acts the Alien Tort Claims Act was intended to give redress were rarely found in the United States, and the legal writ of the newly independent nation wasn't particularly respected around the world. American arguments about North African and British practices were settled not in courts, but by warfare, the former in the conflict with the so-called "Barbary Pirates" and the latter in the War of 1812. The application of criminal laws, not civil lawsuits, kept American maritime piracy under control.

Thus the Alien Tort Claims Act remained on the statute books but went unused, and meanwhile the number of treaties to which the United States was a party proliferated, international organizations whose decisions had the force of law arose, the Nuremberg Tribunals established new precedents in international penal law and human rights became an issue in global jurisprudence as well as in various nations' political and legal debates.

Then, in the Paraguay of dictator Alfredo Stroessner, a sadistic police chief tortured the son of an opposition figure to death, the victim's sister fled to the United States, the police chief fell out of favor with the regime and entered the US as an illegal alien, a lawsuit was filed under the Alien Tort Claims Act in a New York federal district court, and the landmark Filartiga v Pena-Irala decision was the result. The verdict against Stroessner's erstwhile torturer was upheld by the US Second Circuit Court of Appeals, was not reviewed by the US Supreme Court, and thus stood. However, Dr. Filartiga was never able to collect her judgment against former Police Chief Pena- Irala, as it appeared that he had no resources from which he could be compelled to pay.

There have been other cases brought and won under the Alien Tort Claims Act since then, for example, by victims of torture orchestrated by the fugitive Bosnian Serb leader Radovan Karadzic. However, in many other cases American courts have used the legal doctrine of "forum non conveniens" to turn plaintiffs down. This doctrine holds that in certain cases where a court may have jurisdiction to hear the claim, it is better to leave the case to tribunals in another place, generally because the parties, witnesses and physical evidence are located in the other venue. This doctrine was asserted by the defendant in the Filartiga case, but the court rejected the argument, holding that in Stroessner's Paraguay there was no realistic recourse to the law for victims of the dictatorshipís abuses. However, when those injured in a toxic gas release in Bhopal, India tried to sue Union Carbide in American courts, the case was declined under the forum non conveniens doctrine.

The US Supreme Court is likely to hear a case about the scope and validity of the Alien Tort Claims Act sometime in the next few years, because it is increasingly being invoked on behalf of foreigners who claim to have been wronged by US corporations. Under Attorney General John Ashcroft, the Bush administration has filed court briefs opposing the use of the act, arguing that its application stifles the global economy and goes beyond what the law's authors had intended.



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Losing ticket
Colombian tort claim in an Alabama court
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