Accepting Sosa's invitation: did Congress expand the subject matter jurisdiction of the Alien Tort Statute in the Military Commissions Act?

Author:Morison, Samuel T.
Position:IV. Statutory Incorporation and the Common Law of War A. Incorporating Piracy by Express Reference to International Law through VI. Conclusion, with footnotes, p. 1135-1174 - Symposium on Corporate Responsibility and the Alien Tort Statute
  1. Incorporating Piracy by Express Reference to International Law

    In 1819, Congress reacted to Palmer by enacting a new statute that attempted to circumvent the jurisdictional difficulties the Court had identified in Section 8 of the Crimes Act by conforming the definition of piracy to the existing contours of customary international law. In this way, Congress ensured that it legislated to the full extent of its prescriptive authority. Reverting to the practice that had informed the passage of the ATS, Congress thus made it a capital offense for "any person or persons whatsoever ... on the high seas, [to] commit the crime of piracy, as defined by the law of nations." (176)

    The statute was soon put to the test and survived a due process challenge. In United States v. Smith, (177) the defendant was a crew member on a privateer that had been duly commissioned by the government of Buenos Ayres, which was engaged in a civil war with Spain. (178) While the ship was anchored in port, the crew mutinied, confined the officer on the ship, and forcibly seized another privateer docked nearby. The crew then "proceeded to sea on a cruize [sic], without any documents or commission," at which point they attacked and plundered a Spanish merchant vessel. (179) The defendant was later arrested and charged under the 1819 Act. On appeal, the question before the Court was the amenability of the defendant to the jurisdiction of a U.S. court. The defendant was represented by Daniel Webster, who argued that the statute was unconstitutional, because "Congress is bound to define [the crime of piracy] in terms, and is not at liberty to leave it to be ascertained by judicial interpretation," which he suggested would violate the injunction against the creation of common law crimes. (180)

    Justice Story., writing for the Court, found that in proscribing piracy by express reference to the law of nations, Congress had defined the offense with sufficient clarity to put the defendant on notice that his actions were subject to the criminal jurisdiction of a U.S. court. The analysis begins by rejecting the linguistic theory, inherent in Webster's argument, which, if accepted without qualification, would equally invalidate the municipal crimes delineated in Section 8 of the Crimes Act. When Congress enacts a penal statute of any sort, Story observed, "there is nothing which restricts it to a mere logical enumeration in detail of all the facts constituting the offense," as opposed to referring to "a term of a known and determinate meaning" adapted from an external source. (181) For example, in Section 8, Congress proscribed piracy to include "robbery" and "murder" without further elaboration, but these are terms of art defined by the amorphous collection of statutes and judicial decisions that comprise the common law, and "by such a reference, the definitions are necessarily included, as much as if they stood in the text of the act." (182)

    Indeed, if this sort of definitional backstop is impermissible, Story reasons, legislation would essentially become impossible, because we would find ourselves stuck in an infinite semantic regress, with each new term requiring yet further clarification. (183) For purposes of the Define and Punish Clause, then, Congress may codify offenses against the law of nations "either by reference to crimes having a technical name, or by enumerating the acts in detail." (184)

    With that interpretive principle in place, Story turns to the merits of whether the law of nations, in fact, defined the offense of piracy "with reasonable certainty" for purposes of a federal criminal prosecution. (185) To ascertain the definition of piracy in customary international law, he consults what has since become the standard menu of sources, namely "the works of jurists," "the general usage and practice of nations," and "judicial decisions recognizing and enforcing that law." (186) After reviewing numerous such sources, including a seventeen-page footnote comprised primarily of citations to scholarly opinions, Story concludes that "[t] here is scarcely a writer on the law of nations, who does not allude to piracy as a crime of a settled and determinate nature .... [R]obbery or forcible depredations upon the sea, animo furandi, is piracy. (187)

    On this view, when a court enforces the 1819 Act, it is not, as Webster had suggested, exercising its discretion to invoke a common law jurisdiction over the offense of piracy. Instead, the Act confers jurisdiction over the offense and then directs the court to a determinate body of law to establish the meaning of its terms. This was understood to be an objective inquiry, in which the court endeavored to "find" rather than "create" the substantive law, in precisely the same way that a district court discovers the substantive norms enforceable in ATS litigation. Accordingly, the Court concluded that Congress had "sufficiently and constitutionally" codified general piracy in the 1819 Act, because the customary law of nations defined the offense with sufficient clarity to satisfy due process concerns. (188) Finally, as applied, the conduct of the defendant and his associates "completely fit the [foregoing] definition," because they had plundered the victim merchant vessel without "protection from the flag or commission of any government" and therefore could not claim to be lawful belligerents. (189)

  2. The Legal Status of the Military Commission

    Aside from its significance for ATS litigation, the relevance of Smith's construction of the 1819 piracy statute is that--prior to the passage of the Military Commissions Act in 2006--it might fairly be characterized as a methodological template for the adjudication of war crimes. A history of the military, commission as an institution is beyond the scope of this essay, (190) but it suffices to note that, in U.S. military practice, these tribunals have traditionally been regarded as "common law war courts." (191) Although the term was invented by Major General Winfield Scott during the Mexican War in 1847, (192) the legal parameters of the military commission as we know it today were established during the Civil War period. The first major codification of the law of land warfare, commonly known as the Lieber Code, distinguished between courts-martial, which have jurisdiction over statutory military offenses under the Articles of War, and "military offenses which do not come within the statute," which therefore "must be tried and punished under the common law of war.., by military commissions." (193)

    On this point, the Lieber Code expressly built upon the practice already introduced by General-in-Chief of the Union Army, Henry Halleck, who supervised the formation of the Code and should be credited as the intellectual godfather of the modern military commission. (194) In his previous command, General Halleck had sought and received President Lincoln's authorization to declare martial law in the Department of the Missouri, (195) which was being wrecked with internecine violence rooted in deep-seated regional conflicts that predated the war. (196) Shortly thereafter, Halleck instituted a system of hybrid military commissions, which had jurisdiction over two categories of offense: (1) ordinary domestic crimes that could not be tried in the local courts due to the exigency caused by the war, and (2) offenses against "the general code of war" committed by the civilian population, which were neither "triable ... by courts-martial" nor "within the jurisdiction of any existing civil court." (197)

    An accomplished international law scholar, Halleck was sensitive to the distinction between these two categories of offense. As he subsequently wrote in the second edition of his treatise--which was intended to be a textbook for the military academies at West Point and Annapolis--insofar as such tribunals prosecuted violations of the common law of war, they "must be governed and guided by the principles of universal public jurisprudence." (198) Moreover, Halleck was careful not to conflate the mere status of being an unprivileged belligerent with the commission of war crimes. "Private citizens who commit acts of violence," he wrote, "without the authority or sanction of their own government" are not considered "enemies, legitimately in arms," and thus are not entitled "to plead the laws of war in ... justification" of their actions. (199) In the absence of combatant immunity, it follows that "when captured, they are not treated as prisoners of war, but as criminals subject to the punishment due their crimes." (200) Hence, the "taking of property by such forces ... is not a belligerent act authorized by the law of nations, but a robbery," and "the killing of an enemy by such forces ... is not an act of war, but a murder," unless the defendant acted in serf-defense. (201)

    An unprivileged belligerent might also be guilty, of a war crime, to be sure, but each case had to be judged on its own merits. In this regard, the Lieber Code contains an intriguing reference comparing unprivileged belligerents to pirates. (202) As an expert on the law of the sea, the analogy surely would not have escaped Halleck's meticulous attention. (203) In context, this provision was understood to mean that unprivileged belligerency in land warfare--like privateering without a commission on the high seas--merely removed the cloak of combatant immunity, thereby maintaining the distinction between domestic crimes and violations of the law of war." (204)

    When the Lieber Code was revised in 1914, the drafters retained the reference to piracy without change, but added a separate paragraph stating that unprivileged belligerents are "liable to punishment for [their] hostile acts as war criminals." (205) Some commentators have uncritically read this to mean that any hostile act committed by an unprivileged belligerent in the context of an armed conflict ipso facto constitutes a "war crime," but this is...

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