Questions From the Awlaki Litigation

Posted on July 27, 2012 by Ryan Scoville

In August 2010, the father of Anwar al-Awlaki filed a federal lawsuit alleging that his son’s inclusion on CIA and DoD “kill lists” violated the Constitution and international law. The court dismissed the suit for lack of standing and for raising a political question. Several months later, the CIA killed Awlaki and two other U.S. citizens in aerial drone strikes in Yemen. Now the ACLU and Center for Constitutional Rights have responded by filing a separate lawsuit challenging the government’s use of the drones. The defendants are Leon Panetta, David Petraeus, and two other senior military officials, and the complaint alleges that the killings violated the Fourth and Fifth Amendments and the Bill of Attainder Clause. Given the relatedness of the lawsuits and the dismissal of the first on the basis of the political question doctrine, I think there’s very little chance that the second succeeds. But it still raises interesting issues.

One concerns precedent—has the United States ever carried out targeted killings against its own citizens? The answer is yes; the U.S. military has targeted and killed individuals without judicial process notwithstanding their U.S. citizenship. The most significant example comes from the Civil War, during which the Union killed tens of thousands of Confederate soldiers. One might argue that those soldiers were no longer U.S. citizens because they were fighting for the Confederacy, but that position is inconsistent with the view—supported by the Supreme Court’s decision in Texas v. White (1869)—that secession was unconstitutional. As long as secession was invalid, then the Confederacy was void and did not dissolve the U.S. citizenship of its soldiers. More isolated examples appear to have occurred during World War II, when the United States fought against Nazi forces that included some U.S. citizens of German descent. And of course federal law enforcement officers have occasionally killed criminal suspects who presented significant and immediate threats to the public. If the United States has acted permissibly in these cases, then the extrajudicial killing of a U.S. citizen is not unconstitutional per se.

Of course, it does not necessarily follow that the drone strike on Awlaki was constitutional. The Civil War and World War II are in important ways different from the war on terrorism—both fit into classic categories of armed conflict and presented more significant threats to the United States. And fatal police actions against suspected criminals are generally responses to threats more immediate than that presented by Awlaki. Moreover, even if these differences were immaterial, it’s not clear how much non-judicial precedent should guide the analysis—political branches disregard it all the time, and courts are poorly equipped to apply it.

A second question, then, concerns which criteria should determine the constitutionality of acts of this kind. One would think that the criteria should be extremely difficult to satisfy. If the Civil War and World War II precedents are any guide, then perhaps a targeted citizen must be actively fighting against the country in an armed conflict that presents an existential threat to the United States. As an alternative, a secret OLC opinion has reportedly suggested that the targeting must further a permissible military objective, and that the citizen must present an imminent threat and be beyond the reach of law enforcement.

Many have debated what the criteria should be, whether Awlaki satisfied them, and whether the political question doctrine should preclude judicial elaboration on the subject. But I think it’s hard to dispute that dismissing litigation on the basis of the doctrine generates at least one significant problem: Because terrorists such as Awlaki are far from popular and voters are generally apathetic about small-scale, overseas military operations, public opinion and Congress will hardly ever present a hurdle to targeting operations. Moreover, because the President’s criteria are secret, the public cannot know whether targeting decisions are justified. Once you couple those circumstances with the absence of judicial review, there is not much to ensure that the executive responsibly uses the power to target terrorism suspects who hold U.S. citizenship. To me, this is a bigger problem than the drone strikes themselves.

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The Self-Defense Argument for Intervention in Syria

Posted on April 9, 2012 by Ryan Scoville

News media are reporting today that the strife in Syria has, for the first time, spilled across international borders, with Syrian government forces firing into Turkey last night, killing two people and injuring three others, and also firing into Lebanon. The New York Times suggests that a “large number of reinforcements for the government troops, backed by tanks and helicopters,” may have arrived “close to Turkish territory.” And of course Turkey is already sheltering a large number of refugees from the conflict—over 24,000, by the Turkish government’s estimate.

All of which raises the question of what, if anything, can be done. For the past year, the answer has been very little: Russia and China blocked effective measures in the Security Council; the legitimacy of humanitarian intervention on the basis of the responsibility-to-protect (“R2P”) principle has been contested; and neighboring states seemed to lack a persuasive argument for intervention on the basis of self-defense.

But yesterday’s events suggest that the self-defense argument is strengthening. Article 51 of the UN Charter recognizes an “inherent right of individual or collective self-defense if an armed attack occurs against” a member state, “until the Security Council takes measures necessary to maintain international peace and security.” There is at least a reasonable argument that by firing bullets across the border, amassing troops nearby, and forcing Turkey to cope with a significant influx of refugees, Syria is violating Turkey’s territorial integrity and creating justification for an armed Turkish intervention on the basis of a Turkish right of self-defense.

To be clear, I’m not necessarily advocating the legality of intervention; I’m saying simply that the argument for a self-defense-based intervention is getting stronger. And, of course, whether intervention makes sense as a policy matter is another issue altogether.

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In Praise of Flip-Floppers (Part III)

Posted on April 6, 2012 by Ryan Scoville

In my last two posts (here and here) I scrutinized the tendency for voters, the media, and politicians to use flip-flopper critiques indiscriminately. Common usage is indiscriminate in part because it seems to accept without question that position changes by candidates are always a result of pandering, when in fact other, justifiable reasons may be the cause in any given case. Common usage is also indiscriminate because it denounces position changes by candidates for office without paying attention to how the constitutional features of the office influence the validity of the changes.

Given these defects, why does the flip-flopper critique remain so common? I have a few guesses:

First, perhaps voters and the media use the critique in an attempt to simplify the candidate selection process. Position changes complicate candidate identities, and complexity makes it harder to brand and distinguish candidates. By discouraging position changes, the critique facilitates voter choice.

Second, perhaps voters use the critique because they know that electoral mandates are difficult to enforce intra-term. If a candidate elected on one platform changes her position on a matter once in office, it is always possible for the electorate to vote her out upon the expiration of the term. But there is little that can be done until then. And in the meantime the official may work to create laws that reflect her new, unpopular position. Maybe voters scrutinize candidates for position changes to reduce the risk of this scenario. The flip-flopper critique, in other words, fulfills a vetting function, weeding out those candidates who are most likely to change positions in an unforeseeable manner.

Finally, I think candidates contribute to the ubiquity of the critique for their own reasons. They know that it influences voters. And it provides a way to criticize an opponent for holding a particular position even when the position itself is popular.

What is noteworthy about these guesses is that they may explain but cannot resolve the critique’s indiscrimination problems: Even if the guesses are accurate, they do not negate the fact that some position changes should actually improve our perception of a candidate, or that the Constitution makes such changes less problematic for certain types of office-holders. All of which is to say that flip-flopper critiques seem to say more about voters than candidates. The critiques reflect a public preference for clarity and certainty, even if at the expense of nuance, intellectual honesty, and—most ironically—candidate sincerity.

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In Praise of Flip-Floppers (Part II)

Posted on March 13, 2012 by Ryan Scoville

In my last post I scrutinized the tendency for contemporary political discourse to use the pejorative term “flip-flop” to refer to virtually any change of position by a candidate for public office. I argued that this usage uncritically discounts the possibility that some position changes are not only entirely justified, but should, if anything, improve our perception of a candidate, and that the likely effects are excessive cynicism and an exaggerated sense of the value of consistency. In this post, I want to add one more argument to the critique: contemporary usage is also problematic because it tends to attack position changes without regard for the public office the candidate seeks, and thus fails to appreciate how the particular constitutional function of the office might make a candidate’s shifts more or less problematic.

To understand this point, first note the breadth of the contemporary usage. Flip-flopper critiques are obviously a common rhetorical tool in the current presidential race. But they seem to be comparably common—even if less visible—in races for the U.S. Senate and House of Representatives, and in campaigns for state office, including state judgeships. The usage in each of these contexts seems roughly to track that which occurs in the U.S. presidential race—news media and opposing candidates attack apparent inconsistencies or position shifts by labeling them “flip-flops.” Although based on admittedly sporadic observation, my sense is that the attacks don’t vary much by office; those targeting candidates for the U.S. House, for example, don’t meaningfully differ in intensity or form from those targeting nominees for judicial office.

But perhaps they should. The differing functions of these offices are obvious. They have different terms of service. They carry different powers and obligations. And they serve different purposes; the Constitution shields some from popular pressure while directly subjecting others to the very same. As I explained previously, position changes can be responses to new facts, responses to new discoveries of preexisting facts, sincere changes in candidate beliefs, or pandering. There is good reason to think that whether explanations within this typology can justify a position change should vary with the unique characteristics of the office at issue.

Consider, for example, position changes that are based upon shifts in public opinion. We can fit these into the typology by viewing them as changes founded on changed facts, with the facts being two different prevailing public opinions on an issue within a fixed period of time. Whether we should be concerned about this type of change seems to depend largely on the office the candidate seeks. At one end of the spectrum are candidates or nominees for federal judicial office. Here, a shift in public opinion generally should not qualify as a relevant form of changed fact so as to justify a change in position for at least two reasons. First, the Constitution intentionally insulates the federal judiciary from public opinion. Evidence that a nominee alters his positions to keep up with mercurial majority views could suggest a risk to the judiciary’s independent and insulated constitutional function once the nominee obtains the appointment. Second, the predictability of the common law depends upon respect for precedent. Evidence that a nominee changes positions in response to public opinion might suggest a tendency of disregard for stare decisis that will render the law less stable and predictable.

At the other end of the spectrum are candidates for legislative bodies—such as the U.S. House of Representatives—that are constitutionally designed to be maximally responsive to public opinion. Here, the constitutionally mandated combination of elections and short office terms incentivizes legislators to pay close attention to the majority preferences of their constituents, and punishes those who refuse to shift along with the voters. By doing so, the Constitution makes public opinion the primary guide to the office-holder’s decision-making, and affirmatively encourages position changes that are responsive to changes within the electorate itself. Evidence that a candidate for such an office evolves with public opinion may suggest simply that the candidate will carry out her primary constitutional function.

Other salient points along the spectrum include President and Senator. For these, perhaps the most that can be said is that their term lengths suggest that, everything else being equal, consistency is more important than it is for members of the House, but less important than it is for federal judges, and that the strength of justification for public opinion-based position changes also falls somewhere in between.

So far, my hope is simply to have made clear that contemporary discourse is indiscriminate in its use of the flip-flopper critique. In my next and final post on the subject, I’ll attempt to explain why the critique remains so common.

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In Praise of Flip-Floppers

Posted on February 16, 2012 by Ryan Scoville

Consider the flip-flopper critique, one of the more common tools of attack in contemporary politics. Ron Paul has used it against Newt Gingrich. Many have used it against Mitt Romney. Some call President Obama the “flip-flopper-in-chief”; others speak similarly of Governor Walker. The term is efficient—in just a few syllables, it suggests that the target is at once unprincipled, untrustworthy, and unpredictable. But “flip-flopper” is often better at obfuscating than revealing. In this post, I want to briefly highlight one problem with the term’s common usage.

And here’s the problem: while flip-flopper denotes a person who has changed positions without justification, political discourse frequently abuses this meaning by failing to engage sufficiently the question of whether any given change is in fact justifiable. The common implication seems to be that all position changes are tactical and Machiavellian, and that the best candidate is the one who will most steadfastly adhere to his initial policy positions. But of course not all flip-flops are created equal. By glossing over potential justifications, standard flip-flopper critiques both encourage criticism of some praiseworthy position changes, and encourage praise of some blameworthy refusals to change course.

To highlight how position changes can be positive, consider several broad categories of justification:

(1) Changed facts. Sometimes the objective factual premise for a position will change, and in turn justify a shift in position by the person whose initial stance relied on the prior fact. Outside of politics, we accept and even expect these changes as a matter of course. For example, while I might not oppose a person driving 75 miles-per-hour on a freeway, I might strongly oppose the very same person driving the very same car at the same speed through a school zone, and no one would view the change of position as a “flip-flop.” The change in factual premise—freeway to school zone—justifies the shift. To conclude otherwise would require either ignoring the new fact or rejecting its relevance.

(2) New discoveries of preexisting facts. Sometimes the objective facts stay constant, but the social perception of them changes, perhaps because of scientific discovery. For example, while I might eat tomatoes on a regular basis in view of certain anticipated health benefits, I might stop doing so if it became apparent that tomatoes are in fact bad for human health, and no one would call me a flip-flopper. Once again, criticizing the change in position as a flip-flop would require either ignoring the changed context or rejecting its relevance.

(3) New considerations. Sometimes facts and perceptions of them remain constant, and yet a person will change positions on a matter simply because further reflection has added complexity to his thinking. Another example: I might initially like a movie because of its apparent novelty, but soon after recall that it’s similar to several others, and thus not so novel after all. Or I might simply come to understand the movie in a different light upon further reflection. Either way, few would refer to such a change as a flip-flop or view it as a basis for criticism.

(4) Pandering. Sometimes neither facts, nor perceptions of them, nor opinions change, but a person will adopt a new position to indulge an audience. This is the type of change that “flip-flopper” suggests.

All of these possible explanations transfer to politics. Because of changed facts, a candidate might oppose the use of military force in one context but not another. Because of new discoveries of preexisting facts, or new considerations based upon careful reflection or advice from advisors, a candidate might support a policy regarding mining or space exploration that she previously opposed. And pandering might lead the same candidate to present different positions to different electoral audiences.

Changes based on most of these categories of explanation should, if anything, improve our perception of the candidate. A candidate who shifts her stance because of changed facts may be better at appreciating nuance. A candidate who changes positions because of new discoveries may be more intellectually honest. A candidate who changes positions because of further reflection may be better at seeing both sides to an argument, and thus less dogmatic and more capable of sympathizing with those who disagree.

Unfortunately, the standard critiques seem to overlook these complexities. They work by implicitly discounting all but the pandering explanation without seriously considering the others. The term suggests that any changed facts or new discoveries are trivial and irrelevant, and that claims of changes in sincerely held views are simply unbelievable. The result seems to be an exaggerated cynicism toward candidates for elected office, and an exaggerated sense of the value of consistency.

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A Second Look at the Sharia Law Amendment

Posted on January 15, 2012 by Ryan Scoville

Last week, the Tenth Circuit issued a decision on Oklahoma’s “Sharia Law Amendment.” A quick summary for those who haven’t followed: In 2010, Oklahoma voters approved a ballot initiative that amended their state’s constitution to prohibit Oklahoma courts from “considering or using” either “international law” or “Sharia Law” in making judicial decisions. A district court issued a preliminary injunction that at least temporarily prohibited the law from taking effect on the ground that its language regarding Sharia Law violates the Establishment Clause. The Tenth Circuit decision held that the district court did not abuse its discretion in issuing the injunction.

Although not yet addressed by the courts, I think it’s worth noting that the Amendment’s language on international law may also be unconstitutional. The reason is the Supremacy Clause. First note that the Amendment explicitly prohibits Oklahoma courts from “considering or using” international law in the form of both treaties and custom. This prohibition is unqualified, and thus at least facially encompasses treaties and custom of all kinds.

Now consider the text of the Supremacy Clause. Article VI, Section 2 of the U.S. Constitution establishes that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” By referencing treaties that are “made, or which shall be made, under the Authority of the United States,” the Clause establishes supreme status for treaties to which the United States is a party.

The argument for the Sharia Law Amendment’s unconstitutionality is pretty straightforward. Insofar as it refers to treaties without qualification and thus includes those to which the United States is a party, the Amendment bars Oklahoma courts from considering or using treaties that have the status of supreme federal law. To prohibit a ratified treaty’s consideration or use is to deny its legal relevance, in effect even its existence, regardless of how significantly the treaty might otherwise affect the outcome of a case. Even litigation outcomes directly at odds with those dictated by U.S. treaties would seemingly be permissible in Oklahoma.

There’s also a Supremacy Clause argument concerning the Amendment’s language on customary law. International custom binds all states that have not timely objected to its development, and thus as a formal matter generally binds the United States. Although recently a subject of pretty heated debate, the traditional view is that such custom is a form of federal common law and thus backed by the Supremacy Clause. If one accepts that view, then it would be unconstitutional for the Amendment to bar Oklahoma courts from considering or using custom in much the same way that it would be unconstitutional to bar their consideration or use of U.S. treaties.

A court might attempt to avoid these problems in a couple of ways. The first would be to narrowly construe the Amendment. There is a fair argument that the text pertains only to treaties to which the United States is not a party, and to custom not applicable to the United States. Certain language, for example, suggests a general intent to adhere to federal law—a body that obviously includes U.S. treaties and at least arguably includes customary norms. Other language states an opposition only to the application of the “legal precepts of other nations or cultures.” The latter does not implicate ratified treaties or binding custom, which are the law of this country. The narrow interpretation would alleviate the Supremacy Clause problem by ensuring that the Amendment’s prohibition applies only to treaties and custom that are not federal law.

Another potential way to save the Amendment from unconstitutionality would be to conclude that custom is simply not a form of federal common law. This position would be contrary to the traditional view, but it has gained at least some support since Professors Curtis Bradley and Jack Goldsmith first articulated it in the late 1990s. If customary law is not federal common law, then the Supremacy Clause does not encompass it, and Oklahoma courts would not be obliged to consider or use it in their decisions.

Both of these efforts to save the Amendment would encounter difficulties, however. First, the narrow interpretation would render the Amendment’s text on international law essentially irrelevant in practice. I doubt that Oklahoma courts encounter many cases requiring them to resolve disputes concerning U.S. treaties, much less treaties to which the United States is not even a party. I also doubt they encounter many opportunities to resolve disputes over obscure principles of international custom that do not bind the United States. And as long as that is true, the narrow interpretation would essentially tell the courts not to do something that they don’t do anyway.

Second, concluding that international custom lacks the status of federal common law would require a departure from the traditional doctrine on that issue. There are, frankly, pretty intriguing arguments on both sides of the debate that the Bradley and Goldsmith argument has generated, but the U.S. Supreme Court has never squarely held that international custom lacks the status of federal common law.

In short, the constitutionality of the Sharia Law Amendment’s language on international law is, at best, uncertain. Its treatment of treaties is either unconstitutional or essentially irrelevant. And its treatment of custom may require courts to resolve a longstanding debate about custom’s domestic status.

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Would it be Illegal for Iran to Close the Strait of Hormuz?

Posted on January 7, 2012 by Ryan Scoville

In response to international economic and diplomatic pressure to halt its nuclear program, Iran is reportedly contemplating closing the Strait of Hormuz, a narrow and critically important waterway through which approximately a third of global sea-based oil shipments pass each year. The precise nature of this potential action is a little unclear from media reports. Some accounts state that the closure would pertain only to foreign warships that do not receive Iranian permission to transit. Others give the impression that Iran may bar all transit, including oil shipments. The difference is significant, but many seem to think that Iran would be acting illegally either way. My aim here is to briefly explore that view under international law.

The principal hurdle to either type of closure is the U.N. Convention on the Law of the Sea, a treaty that Iran has not ratified but that is widely accepted as codifying preexisting customary rules that bind parties and non-parties alike. One such rule is that in a strait all ships and aircraft shall enjoy an unimpeded right of “transit passage,” which is “the exercise . . . of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait” (art. 38). A corollary is that states bordering straits “shall not hamper transit passage,” and that “[t]here shall be no suspension of transit passage” (art. 44).

Closure of the Strait to all transit would clearly violate these rules. The more interesting question is whether closure only with respect to unauthorized foreign warships would also be illegal. To justify this action, Iran might argue that although the right of “transit passage” must be unimpeded, foreign warships cannot claim to exercise the right when their presence in the Strait is at least in part for a military purpose, and that refusal to grant authorization to transit in such circumstances is therefore perfectly permissible. The U.S. Navy, for example, might enter the Strait in part to contain Iran, fight piracy, signal a commitment to regional stability, or accomplish some other military objective. In those cases, the Navy would not be in the Strait solely for the purpose of “continuous and expeditious transit,” and therefore not be engaged in transit passage, and therefore lack the right of unimpeded passage under the treaty articles mentioned above, and Iran could permissibly decline authorization for the Navy’s vessel to pass through.

Such an argument has at least two significant problems, however. One is that while Iran’s territorial waters extend up to 12 nautical miles from its shoreline, the Strait is 21 nautical miles wide at its narrowest. Thus, to close the Strait, Iran would have to prohibit transit beyond its territorial waters, over at least 9 miles of ocean extending from the limit of those waters to the other side of the Strait. Nothing in the Law of the Sea Convention gives Iran a general power to do so.

The second problem with the argument is that, as a factual matter, the intent of the potential Iranian action appears to be to block the U.S. Navy from entering the Strait regardless of purpose. If executed in accordance with this intent, the action would violate the U.S. Navy’s right of transit passage in any case where U.S. warships aimed to use the Strait solely for the purpose of traveling to another destination.

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Some Thoughts on Kiobel

Posted on December 13, 2011 by Ryan Scoville

A few weeks ago I wrote a post providing a brief background on Kiobel v. Royal Dutch Petroleum Co., the case in which the Supreme Court will likely decide whether the Alien Tort Statute confers federal jurisdiction over claims alleging corporate violations of customary international law. I’d like to offer a couple of additional thoughts on that upcoming decision.

Although not directly at issue in the litigation, Kiobel seems to raise an interesting question about the method by which courts go about ascertaining custom. A core principle of international law is that binding customary norms develop from “general and consistent practice that states follow from a sense of legal obligation.” According to Sosa v. Alvarez-Machain, the ATS provides for federal jurisdiction over civil actions by aliens who have alleged violations of a particular subset of these norms–i.e., those that are “accepted by the civilized world” and defined with a fairly high degree of specificity. Thus, determining whether the ATS provides jurisdiction in any given case often requires a judicial analysis of the nature, extent, and rationale of the practice that has allegedly given rise to the norm that the defendant has allegedly violated. In some cases–such as those involving piracy, offenses against ambassadors, and torture–the jurisdictional analysis is relatively easy because the underlying norm is widely accepted and well-defined. In others, it may be difficult to ascertain whether a given norm has the requisite levels of state acceptance and definitional precision.

The circuit split underlying the decision to grant cert in Kiobel suggests that the norm of corporate liability falls into the latter category. After canvassing selected treaties, precedent from international tribunals, and scholarship, the Second Circuit concluded that corporations have never been prosecuted for violating customary international law, and that a custom of liability therefore does not exist. But upon completing the very same inquiry, the Seventh Circuit reached precisely the opposite conclusion in Flomo v. Firestone National Rubber Co. Notably, Flomo disagreed with the Second Circuit on the ground that that court had simply overlooked a salient example of corporate liability–that of the German company I.G. Farben for its conduct during WWII.

Assuming the Seventh Circuit was correct, the Second Circuit’s failure to recognize the I.G. Farben precedent seems significant. But from the standpoint of judicial process, the failure was also understandable, for federal courts lack the resources to systematically identify all relevant international practice for the purpose of resolving 12(b) motions. A thorough inquiry would seem to require reviewing the mundane, day-to-day behaviors of the entire “civilized world”–to use Sosa‘s words–over a course of years, even decades. And yet, there is no database of such practice, no analogue to the essentially complete and well-organized federal and state case reports on Westlaw and Lexis. Thus, standard legal research techniques won’t necessarily generate reliable answers. Courts can take shortcuts by focusing their research on salient indicia of state practice in the form of treaties and important decisions from international tribunals, but those examples are inevitably incomplete.

One conclusion to draw from this observation is that the disagreement between the Second and Seventh Circuits does not necessarily itself show that the norm of corporate liability lacks the acceptance and precision that Sosa demands. Instead, the circuit split may simply reflect the difficulties inherent in federal judicial identification of international custom. Perhaps the Seventh Circuit was right, and the Second simply overlooked relevant precedent. Perhaps both circuits did so. Absent a rigorous historical inquiry, it’s hard to say with certainty. Either way, to say that it is difficult to accurately identify whether any given customary norm enjoys the clarity and acceptance necessary to create ATS jurisdiction is not to say that the norm lacks such characteristics.

Another possible conclusion to draw is that federal courts should find ways to supplement their capacity to ascertain international custom. One potential solution lies in Rule 53 of the Federal Rules of Civil Procedure, which permits courts to appoint special masters “to address pretrial . . . matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” If the problems of research method that I have described preclude courts from “effectively and timely” identifying customary international law, then the Rule would seem to permit courts to use special masters to supplement their efforts. These special masters would ideally be international legal experts or historians with expertise in the relevant area of custom, and would have a more comprehensive and nuanced understanding of state practice than the court could possibly obtain through standard legal research techniques. Briefly looking at the Federal Reporter, I did not see any examples of courts using special masters in this way, but perhaps it’s a step worth considering.

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Federal Jurisdiction Over Claims of Corporate Liability Under International Law

Posted on November 29, 2011 by Ryan Scoville

The Alien Tort Statute (“ATS”) creates federal jurisdiction over “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.” Although enacted as part of the original Judiciary Act of 1789, the ATS has only recently become a subject of significant litigation and academic debate. The first published appellate opinion to interpret the statute came in 1980 in Filartiga v. Pena-Irala, with the Second Circuit holding that the ATS provides federal jurisdiction where an alien files a claim alleging official torture in violation of the “law of nations”—commonly known today as “customary international law.”

Since Filartiga, federal appellate courts have issued several dozen published opinions on the ATS. Many of these have elaborated on the types of tort claims for which the ATS provides jurisdiction. Courts have held, for example, that jurisdiction is present for claims of tortious conduct violating customary international prohibitions on extrajudicial killing, genocide, crimes against humanity, and medical experiments on unknowing human subjects. Courts have also held that the ATS does not provide jurisdiction over claims of international environmental harms, cultural genocide, breach of fiduciary duty, and child labor. The task of ascertaining whether the ATS encompasses any given tort can be a difficult one, for it hinges upon often-murky indicia of international state practice. In Sosa v. Alvarez-Machain, the Supreme Court’s only opinion on the ATS, the Court held that jurisdiction is present only where a claim based on customary international law invokes an international norm that is both “accepted by the civilized world” and defined with a fairly high degree of specificity.

Sosa’s guidance notwithstanding, the frequent indeterminacy of international custom creates a significant risk of disagreement among circuit courts tasked with identifying the precise contours of ATS jurisdiction. And indeed, over the past year, appellate courts have split on a new and important aspect of the statute—namely, whether it creates federal jurisdiction over claims alleging corporate violations of customary international law. The D.C. and Seventh Circuits have answered the question affirmatively, and thus permitted plaintiffs to sue corporations for engaging in conduct that violates international custom. But in Kiobel v. Royal Dutch Petroleum Co., the Second Circuit reached precisely the opposite conclusion. The plaintiffs in Kiobel alleged that Royal Dutch helped the Nigerian government to suppress dissent among Nigerian citizens who were unhappy with the environmental effects of oil exploration in the region, and in doing so aided and abetted the government’s commission of various human rights abuses. The complaint asserted, for example, that Royal Dutch provided transportation to Nigerian forces, allowed its property to be used as a staging ground for military attacks on protestors, and provided food and compensation to soldiers involved in the attacks. The Nigerian forces allegedly used this support to engage in extrajudicial killings, crimes against humanity, torture, and arbitrary arrest and detention, among other acts. The plaintiffs asserted jurisdiction under the ATS, but Royal Dutch moved to dismiss on the ground that the statute does not confer jurisdiction over corporate defendants because there is no norm of corporate liability under international custom for the types of offenses alleged. The Second Circuit agreed, and therefore dismissed for lack of jurisdiction.

Given the circuit split and the importance of the question, the Supreme Court granted certiorari in Kiobel last month. It is difficult to predict how the Court will decide the case, but a ruling in favor of either side of the split will have significant implications for corporate responsibility abroad. If the Court agrees with the D.C. and Seventh Circuits, we can expect that plaintiffs will use the ATS to hold corporations accountable for conduct at odds with important international legal norms. If the Court agrees with the Second Circuit, however, plaintiffs will lose a valuable tool for constraining corporate behavior.

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The Libya Intervention: Legality and Lessons (Part III)

Posted on November 7, 2011 by Ryan Scoville

In my last two posts (here and here), I discussed some of the legal and practical issues raised by the U.S. intervention in Libya, including the issue of whether the Obama Administration violated the War Powers Resolution by declining to seek congressional approval for participation in the conflict. Although there is room for debate, I concluded that the Administration probably did violate the Resolution insofar as the statutory meaning of “hostilities” aligns with the word’s colloquial meaning. But the question of meaning probably depends on more than text alone. As with most other questions of statutory interpretation, we should also look to precedent as an interpretive guide. My purpose in this post is to identify some relevant precedent and discuss how it might affect the analysis.

To start, it is worth noting that there is no judicial precedent. Because of justiciability hurdles and the federal judiciary’s longstanding aversion to deciding questions concerning foreign affairs and the legality of international conflict, federal courts have consistently dismissed actions under the War Powers Resolution without reaching the merits. In fact, just three weeks ago, a federal district court dismissed a lawsuit by Representative Dennis Kucinich for precisely this reason. Representative Kucinich had claimed that the President’s introduction of U.S. forces into Libya violated the War Powers Resolution, but the court dismissed for lack of standing.

There is, however, relevant precedent from the Executive Branch in the form of two opinions from the Justice Department’s Office of Legal Counsel. The first is a 1980 opinion by Assistant Attorney General John M. Harmon, entitled “Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization.” In examining the meaning of the word “hostilities,” the Harmon Opinion cited as instructive a House of Representatives Report stating that the word “hostilities” in the War Powers Resolution “was substituted for the phrase ‘armed conflict’ . . . because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, ‘hostilities’ also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict.” The Harmon Opinion also cited a letter from the Departments of State and Defense explaining that the term “hostilities” includes “a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces,” but does not “necessarily encompass[] irregular or infrequent violence which may occur in a particular area.” The Opinion concluded that “the term ‘hostilities’ should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces abroad.”

With the Harmon Opinion in mind, stop for a moment to consider how the law circa 1980 would have viewed the Libya intervention: If my last post is correct, the ordinary meaning of “hostilities” encompassed the conflict. Additionally, the legislative history seems to corroborate the text and suggest that Congress would have intended the War Powers Resolution to apply. If “hostilities” “encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict,” then surely the term must also encompass the U.S. bombing of Libya with manned and unmanned aircraft, and the U.S. provision of military support to NATO allies. And the Harmon Opinion’s partial reliance on the legislative history shows an Executive approach to war powers that aligned with the Resolution’s text and intent. Thus, at least as recently as the early 1980s, the law would have framed the Libya intervention as a “hostility.”

The law lost clarity, however, with the second relevant Executive precedent–a 1994 opinion by Assistant Attorney General Walter Dellinger, entitled “Deployment of United States Armed Forces Into Haiti.” OLC issued the opinion in response to a request from President Clinton for an analysis on the lawfulness of a planned deployment of U.S. forces into Haiti to oust Raoul Cedras from power and restore the democratic government of Jean-Bertrand Aristide. Concluding that the deployment would be consistent with the Resolution even without congressional authorization, the Dellinger Opinion explained that the Resolution’s “overriding interest was to prevent the United States from being engaged, without express congressional authorization, in major, prolonged conflicts such as the wars in Vietnam and Korea, rather than to prohibit the President from using or threatening to use troops to achieve important diplomatic objectives where the risk of sustained military conflict was negligible.” Notably, the Opinion cited no authority for this view.

With the Dellinger Opinion, it was no longer clear whether the War Powers Resolution applied to conflicts such as Libya. Given the Opinion’s suggestion that the Resolution’s overriding interest is simply in preventing unauthorized U.S. involvement in “major, prolonged conflicts,” the effective reach of the Resolution narrowed significantly. Moreover, there was no Executive analog to the doctrine of stare decisis to require the President to adhere to the decades-old Harmon Opinion.

So why does this matter? I think the OLC opinions are a microcosmic reflection of the steady march toward increasingly expansive presidential war powers–a march that has been powered by the Executive and that continues today. President Obama’s introduction of U.S. forces into Libya probably violates the text and purpose of the War Powers Resolution. The President’s action, however, aligns quite well with the practice of other recent presidents, including President Clinton with respect to Haiti and President George W. Bush with respect to the war on terrorism.

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