Thomas Jefferson Disagrees with the Supreme Court’s Decision in Kiobel

In 1792, Thomas Jefferson, as the first Secretary of State, made note of complaints that had been lodged against the U.S. by both Spain and France. In different incidents, citizens of Georgia had breached international law by trespassing into Florida (then a part of Spain) and into the territorial waters of Santo Domingo for the purpose of recapturing and kidnapping slaves. In examining the remedies that might be available to the United States to prevent this situation from reoccurring in the future, Jefferson affirmed the Alien Tort Statute’s extraterritorial reach, taking it as obvious that the statute conferred jurisdiction over acts that took place in a foreign sovereign’s territory:

XXX. — Opinion relative to a case of recapture, by citizens of the United States, of slaves escaped into Florida, and of an American captain enticing French slaves from St. Domingo.

December 3, 1792.

Complaint has been made by the Representatives of Spain that certain individuals of Georgia entered the State of Florida, and without any application to the Government, seized and carried into Georgia, certain persons, whom they claimed to be their slaves. This aggression was thought the more of, as there exists a convention between that government and the United States against receiving fugitive slaves. The minister of France has complained that the master of an American vessel, while lying within a harbor of St. Domingo, having enticed some negroes on board his vessel, under pretext of employment, bought them off, and sold them in Georgia as slaves.

1. Has the general government cognizance of these offences? 2. If it has, is any law already provided for trying and punishing them?

1. The Constitution says .. that Congress shall have power to “define and punish piracies and felonies committed on the high seas, and offences against the law of nations.” These offences were not committed on the high seas, and consequently not within that branch of the clause. Are they against the law of nations, taken as it may be in its whole extent, as founded, 1st, in nature; 2d, usage; 3d, convention? So much may be said in the affirmative, that the legislators ought to send the case before the judiciary for discussion; and the rather, when it is considered that unless the offenders can be punished under this clause, there is no other which goes directly to their case, and consequently our peace with foreign nations will be constantly at the discretion of individuals.

2. Have the legislators sent this question before the Courts by any law already provided? The act of 1789, chapter 20, section 9, says the district courts shall have cognizance concur rent with the courts of the several States, or the circuit courts, of all causes, where an alien sues for a tort only, in violation of the law of nations: but what if there be no alien whose interest is such as to support an action for the tort? — which is precisely the case of the aggression on Florida. If the act in describing the jurisdiction of the Courts, had given them cognizance of proceedings by way of indictment or information against offenders under the law of nations, for the public wrong, and on the public behalf, as well as to an individual for the special tort, it would have been the thing desired.

The same act, section 13, says, the “Supreme Court shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently, with the law of nations.” — Still this is not the case, no ambassador, &c., being concerned here. I find nothing else in the law applicable to this question, and therefore presume the case is still to be provided for, and that this may be done by enlarging the jurisdiction of the courts, so that they may sustain indictments and informations on the public behalf, for offences against the law of nations.

[A note added by Mr. Jefferson at a later period. ]

On further examination it does appear that the 11th section of the judiciary act above cited gives to the circuit courts exclusively, cognizance of all crimes and offences cognizable under the authority of the United States, and not otherwise provided for. This removes the difficulty, however, but one step further; — for questions then arise, 1st. What is the peculiar character of the offence in question; to wit, treason, felony, misdemeanor, or trespass? 2d. What is its specific punishment — capital or what? 3d. Whence is the venue to come?

As these offenses had taken place in the territory of other sovereigns — and not upon the high seas, which is the geographical extent of Congress’ authority to prescribe “piracies and felonies” — Jefferson concluded that the Constitutional authority for acting against the Georgians’ incursions came from the “offences against the law of nations” clause. Jefferson then considered whether Congress had previously, pursuant to this authority, provided for any laws that might reach the challenged conduct and, in examining the section now known as the Alien Tort Statute, finds that Congress had. Unfortunately for Jefferson, the ATS would not protect the U.S.’s interest in this instance, leading him to  lament the apparent lack of federal jurisdiction for such a case to be heard before the federal courts: “what if there be no alien whose interest is such as to support an action for the tort?”

But Jefferson implicitly accepted that, under the ATS, an alien possessed an individual cause of action for an extraterritorial tort. The Attorney General at that time, Edmund Randolph, concurred with Jefferson that a civil claim could plainly exist over the slave abductors, even though the exercise of criminal jurisdiction under those circumstances was more questionable.

And although no plaintiff existed to have standing in the cases of the Florida and St. Domingo slave abductions — and thus no claim under the ATS was available — the permissibility of civil jurisdiction over the defendants was, to Jefferson, obvious. Constitutional authority to provide a cause of action over the offence was authorized under the “offences against the law of nations” clause; subject matter jurisdiction in the district courts was provided for by section 9 of the Judiciary Act of 1789; and personal jurisdiction was to be had over the defendants owing to both their presence in the state of Georgia and their status as U.S. citizens. No ‘presumption against extraterritoriality’ would have applied, under Jefferson’s understanding, because such a judicial construction would have directly undermined the congressional purpose underlying the ATS.

-Susan

30 thoughts on “Thomas Jefferson Disagrees with the Supreme Court’s Decision in Kiobel

  1. I’m willing to bet that a clear American nexus–such as the Americans from Georgia violating Spanish sovereignty–would sufficiently “touch and concern” the United States to harmonize Jefferson and the Court’s modern-day position. Hyperbole will get you nowhere.

    • So you’re willing to bet that a hypothetical application of the presumption against extraterritoriality, which does not currently exist but might in the future, could be reconciled with 18th century understandings of jurisdictional reach.

      That’s possible. But the St. Domingo incidents involved conduct that wholly occurred abroad, with only citizenship of the actor to provide a nexus with the US. And the majority opinion in Kiobel tried very hard to exclude from the ATS’s reach any cause of action in which “all the relevant conduct took place outside the United States[.]”

      If we’re presuming that acts that occur outside of U.S. territory (and also outside of the high seas, if you allow for Roberts’ new rule) are beyond the contemplated reach of congress, then it doesn’t matter if they are committed by U.S. citizens. Kiobel’s citations to Aramco and similar cases further indicate that the Court was unconcerned by the nationality of the actors, but instead only with the nationality of the conduct — which makes it very hard to reconcile with the views of Jefferson in his private writings, as well as in his letters to various outraged French Ministers.

      • Look, the entire point of the statute is to avoid having war declared upon us by one of our neighbors, ex-enemies, or desperately needed allies. That means Spain (neighbor to the South and the West), Britain (ex-enemy with a hell of a Navy), or France (military ally angling for America’s support against the Brits) and the Netherlands (financiers of the revolution). The Marbois and New York incidents, if not adequately addressed by the courts of the states, could have given rise to a denial-of-justice claim by one of those aforementioned States, who could, under the law of nations as interpreted by Vattel, either pulled all of their support and/or declared war on us under the right of reprisal. Thankfully, Pennsylvania allowed that case to proceed (although other states would likely not have taken the case–as the Dutch ambassador’s experience in New York in 1787 exemplified).

        If American citizens were to violate the law of nations, then flee back to their home country for protection, and if then a foreign plaintiff (here, a Floridian whose land was trespassed upon) could not seek redress for that violation in the tortfeasors’ “home courts,” that would read the statute to do precisely the opposite of what it was intended to facilitate. It would literally leave the plaintiffs without any court system to go to adjudicate the wrong done to them. This could then create a possible war by itself. True, the relevant events occurred outside of American jurisdiction in this example, but the tortfeasors, by their citizenship and return to the United States for protection, have actually made the United States potentially liable if justice is thereafter denied to the victims by denying them a forum in an American court. This type of case is precisely why the Chief Justice’s opinion allows for the presumption to be rebutted.

        If American courts actively protected an American citizen who assaulted a British ambassador in France, you can bet that the Brits would have declared war on us. Cf. The Don Pacifico Affair in the 1800s. The statute has a purpose and should be read with those understandings in mind. The plaintiffs in Kiobel wanted to wedge 20th century international wrongs through an 18th century law designed to head off a foreign nation’s right of reprisal. But if America cannot in any way be tied to the alleged tort, the claim does not touch and concern American interests for the presumption to be rebutted.

        Oh, and that presumption against extraterritoriality canon was essentially applied in the Court’s early treatment of the American piracy statute of 1790, again in Charming Betsy in 1804. So much for the whole “it wasn’t around then” argument.

        • I think you’re being disingenuous when you make your last (snarky) point. Extraterritoriality in Charming Betsy is much different from the presumption against extraterritoriality that he we have today. Most obviously, international law recognizes (at least arguably) some cases where a nation is free to exercise jurisdiction over a matter that has no “nexus” with that nation. Genocide is the most obvious example. Charming Betsy would allow for that, while today’s presumption against extraterritoriality likely would not.

        • Thanks for explaining to me what the basic geopolitical situation was in the late 18th century, and also for informing me of what the commonly known historical causes that contributed to the ATS’s enactment are. I had no idea about any of that.

          But I am curious about what makes you think I disagree with any of the background statements that you just provided. Because I don’t, I agree entirely. Reading the ATS to exclude jurisdiction over violations of international law that took place abroad would “read the statute to do precisely the opposite of what it was intended to facilitate.”

          My disagreement with the Kiobel decision is based on the fact that the presumption against extraterritoriality (PAE) is an inappropriate and problematic vehicle for denying jurisdiction, particularly in a case where there were literally dozens of other alternative rulings that the justices had to choose from to accomplish just that. I fully agree that U.S. courts should not have exercised jurisdiction in Kiobel — and the Court was properly unanimous on that point — but it should not have been done on the basis of an amorphous canon of construction that is a modern judicial invention.

          But if America cannot in any way be tied to the alleged tort, the claim does not touch and concern American interests for the presumption to be rebutted.

          This is not what Kiobel says. You’re reading depth into the decision that simply isn’t there. Kiobel states that “[n]othing about this historical context suggests that Congress also intended federal common law under the ATS to provide a cause of action for conduct occurring in the territory of another sovereign” — not that “nothing about the historical context suggests that Congress intended to provide a cause of action for conduct that does not touch and concern American interests,” or “nothing about the historical context suggests that Congress intended to provide a cause of action for the conduct that is performed abroad, except when it is performed by U.S. citizens,” which are the readings you appear to be advocating for.

          Because the PAE’s most frequent use has been in finding that federal statutes do not affect the acts of U.S. citizens that occur outside of U.S. territory; see Aramco, Smith, and Sale. And there is nothing in existing caselaw concerning the PAE that would allow for a presumption that statutes have extraterritorial effect for the actions of citizens, but do not have extraterritorial effect for the actions of aliens.

          But despite its ill-fit, the Kiobel majority likely chose to use the PAE to deny jurisdiction in Kiobel because it was a convenient — although clunky — mechanism for denying jurisdiction over an uncomfortable cause of action, but in a manner which did not also acknowledge the existence of any restrictions on Congress’ power. It was solely the Court’s internal rules of interpretation that were addressed in Kiobel, and not any underlying substantive law. So the Kiobel majority chose an arguably activist cop-out: the Court would legislate on behalf of a quiet Congress, but would do so in a way which could not counteract Congress’ ability to legislate in violation of international law in the future.

          Also Charming Betsy didn’t say what you say it did.

          • I like that our blog is perhaps the only place on the internet where tensions can rise over the jurisdictional reach of a somewhat obscure 18th-century federal tort statute.

  2. Fair enough–Charming Betsy held that a statute must be construed if possible to comply with, rather than violate, the law of nations. “An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” This much is true–but this WAS the foundation for the presumption against extraterritoriality. See John H. Knox, A Presumption Against Extrajurisdictionality, 104 Am. J. Int’l L. 351, 352 (2010). Just look at the case, for goodness sake.

    The federal law in that case prohibited commerce with France or its possessions. All fine and good, we wanted to remain neutral. Nevertheless, the statute was read to not apply to a Danish-owned vessel trading with and in a French possession, despite its literal applicability. Literal application of an American statute to a “foreign-cubed” situation just like Kiobel would have violated customary international law, and thus the Charming Betsy rule of construction made the statute inapplicable. See Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 Geo. L.J. 479, 489 (1998) (“[C]ourts often invoke the Charming Betsy canon as a reason for construing ambiguous statutes as not having extraterritorial effect.”). Michael is naturally correct and piggybacking off of Colangelo’s work to say that universal jurisdiction would be okay for certain universal wrongs, but the key with statutory interpretation is looking at what was meant regarding its breadth AT THE TIME OF ENACTMENT–not in the 20th or 21st centuries. Jurisdictional statutes shouldn’t be allowed to mutate on their own and quietly expand federal courts’ power if the federal courts are indeed courts of limited jurisdiction (as they most certainly were meant to be in 1789).

    Incidentally, I noticed that no one challenged my assertion that the federal 1790 anti-piracy law was also read to not apply extraterritorially. See United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630-32 (1818) (Marshall, C.J.). That application of the canon predates Jefferson’s letter, no?

    The bottom line is that despite our agreement on much of the background, I think Susan is simply overreading Kiobel to bar cases that clearly touch and concern the sovereign interests of the United States, in an effort to lambaste the majority’s “activism.” The crucial difference in her exemplar with Jefferson is that it is not foreign-cubed, whereas both Kiobel and Charming Betsy were. That is a crucially important difference because it means that the United States could either directly violate customary international law, or give rise to a right of reprisal. This is an important piece of the puzzle and the entire reason why the majority distinguishes piracy as the sui generis jurisdictional quirk that it is under international law. See Kiobel, (“We do not think that the existence of a cause of action against them is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign; pirates may well be a category unto themselves.”); accord S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 70 (Sept. 7) (Moore, J., dissenting) (“Piracy by law of nations, in its jurisdictional aspects, is sui generis. Though statutes may provide for its punishment, it is an offence against the law of nations; and as the scene of the pirate’s operations is the high seas, which it is not the right or duty of any nation to police, he is denied the protection of the flag which he may carry….”); Arrest Warrant of 11 Apr. 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, 56 (Feb. 14) (declaration of Ranjeva, J.) (“[S]ince piracy by definition involves the pirates’ denial and evasion of the jurisdiction of any State system, the exercise of universal jurisdiction enables the legal order to be re-established…. [T]he conferring of universal jurisdiction on national courts to try pirates and acts of piracy is explained by the harm done to the international system of State jurisdiction. The inherent seriousness of the offence has, however, not been deemed sufficient per se to establish universal jurisdiction.”); cf. Arrest Warrant of 11 Apr. 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, 38, 44 (Feb. 14) (separate opinion of Pres. Guillaume); R v. Bartle, ex parte Pinochet Ugarte, [2000] 1 A.C. 61 (H.L.) 79 (Lord Slynn of Hadley, dissenting) (appeal taken from Q.B. Div’l Ct.) (U.K.), reprinted in 37 I.L.M. 1302, 1312-13 (1998) (“It does not seem to me that it has been shown that there is any State practice or general consensus let alone a widely supported convention that all crimes against international law should be justiciable in National Courts on the basis of the universality of jurisdiction. . . . That international law crimes should be tried before international tribunals or in the perpetrator’s own state is one thing; that they should be impleaded without regard to a long-established customary international law rule in the Courts of other states is another. . . . The fact even that an act is recognised as a crime under international law does not mean that the Courts of all States have jurisdiction to try it. . . . There is no universality of jurisdiction for crimes against international law. . . .”).

    Oh, and don’t give me the Lotus rationale of that which is not forbidden is permitted. That might be true for the purposes of the PCIJ/ICJ today, but the ATS is what we have in this country, and it speaks in terms of what actually is “the law of nations.” This means, in practice, that it must be read to comport with the CUSTOMary international law–not simply be permitted under the most liberal construction and oddities of international law (such as the Dutch case from a year ago, or Spain’s universal criminal liability from the last decade, or Beligium’s rejected in absentia criminal statute, or Italy and Greece’s rejected civil liability cases for the Holocaust).

    • “[T]he key with statutory interpretation is looking at what was meant regarding its breadth AT THE TIME OF ENACTMENT–not in the 20th or 21st centuries. Jurisdictional statutes shouldn’t be allowed to mutate on their own and quietly expand federal courts’ power if the federal courts are indeed courts of limited jurisdiction (as they most certainly were meant to be in 1789).”

      I’m happy to see that you’ve read an opinion written by Justice Scalia before. That said, I think Sosa suggests that you’re mistaken here. The Charming Betsy canon would be pretty silly if it provided that the Supreme Court should not interpret a statute to conflict with international law as it was, not as it is today. And Sosa explained that claims under the ATS are premised “on the present-day law of nations.” To me, if the “present-day law of nations” embraces notions like universal jurisdiction, then we should embrace it, too.

      Although I’d love to read the many concurrences and dissents that you cited from random international decisions, I’ll save that for another day. It’s too nice outside for that.

      • Sosa suggests no such thing. Substantively, reading modern-day universal, specific, and obligatory causes of action/claims comports with what common-law judges were known to do in the 18th century and still do today. Jurisdictionally, however, it would be diametrically opposed to the framers’ and First Congress’s understanding to hold that a jurisdictional statute (here, the ATS) could gradually expand the powers of a federal court that was always meant to be limited. The trouble is that the ATS was meant to be jurisdictional, but Souter’s opinion allowed for judges to recognize new causes of action as customary international law developed; this comported with the understanding that Congress had AT THE TIME OF THE ENACTMENT–i.e., that federal courts would look to the general common law for legitimate claims. What did not comport with customary international law, however, either at the time or today, is universal jurisdiction for foreign-cubed suits. The inevitable rebuttal to my last sentence hinges on Lotus and a refusal to actually recognize what is the custom amongst the world–which is the test for what actually is within “the law of nations.” See Arrest Warrant of 11 Apr. 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, 77 (Feb. 14) (joint separate opinion of Higgins, Kooijimans, and Buergenthal, JJ.) (“Under the Alien Tort [Statute], the United States … has asserted a jurisdiction both over human rights violations and over major violations of international law, perpetrated by non-nationals overseas…. While this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally.”).

    • You didn’t address a single point I just made. You’re just citing random cases about jurisdiction, but jurisdiction isn’t what was addressed in Kiobel. It was about using a canon of construction to divine the territorial reach of a statute. And the Court said that, under the PAE, ‘we are required to presume that the ATS did not intend to regulate conduct that occurs outside of the U.S.’ The PAE, when applied to a statute, prohibits its application to conduct that occurs abroad, whether committed by a U.S. citizen or an alien. Nothing you cited refutes that, or even addresses it.

      If the PAE prohibits courts from exercising jurisdiction under the ATS to acts that occurred outside of U.S. territory, then the Jefferson examples would be excluded from its reach. Full stop. Why do you believe the PAE does not exclude such conduct? In what case(s) has the Court applied the PAE in a manner that would not exclude such conduct?

      Also U.S. v. Palmer did not involve the PAE, that case did not say what you say it did either.

          • Hilarious. Here’s my rebuttal: “[W]here 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.” Kiobel v. Royal Dutch Petroleum. I read that to mean that cases with an actual nexus to the United States can be heard in a United States federal court–similar to Sosa. It has been argued that that case was entirely foreign, but that argument completely overlooks how the DEA was running the entire operation. That type of conduct–where America can be held liable under international law and thereby provide the affected alien’s home country with a right of reprisal–“touch[es] and concern[s]…the United States…with sufficient force to displace the presumption against extraterritorial application.”

            Oh, and according to the United States Supreme Court, Palmer does actually relate to the presumption against extraterritoriality: “In determining the scope of the statutory phrase we find help in the ‘commonsense notion that Congress generally legislates with domestic concerns in mind.’ Smith v. United States, 507 U.S. 197, 204, n. 5 (1993). This notion has led the Court to adopt the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application. See Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949); SEE ALSO PALMER, supra, at 631 (‘The words “any person or persons,” are broad enough to comprehend every human being’ but are ‘limited to cases within the jurisdiction of the state’); EEOC v. Arabian American Oil Co., 499 U.S. 244, 249-251 (1991).” Small v. United States, 544 U.S. 385, 388-89 (2005).

            By the way, the capitalization is used because I simply don’t know how to underline or italicize for emphasis.

      • Your single quote from Kiobel does not carry the weight you want it to. The whole quote is this: “And even 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. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” The Court is saying that even when a corporation has officers on U.S. soil who direct or are involved with extraterritorial violations of U.S. law, that itself may not be enough to find that the cause of action was itself territorial rather than extraterritorial.

        It absolutely does not mean “but secretly we will not enforce the PAE in certain incidents where it’d make sense for the ATS to actually apply.” And every single other PAE case I am aware of likewise confirms that extraterritorial conduct is beyond the reach of statute that the PAE applies to, regardless of whether the actor is citizen or alien.

        Here is the Court’s actual language regarding the ATS’s inability to reach acts that occur in the territory of a foreign sovereign:

        “The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign.”

        “That canon provides that ‘[w]hen a statute gives no clear indication of an extraterritorial application, it has none[.]'”

        “Nor does the historical background against which the ATS was enacted overcome the presumption against application to conduct in the territory of another sovereign.”

        “These prominent contemporary examples — immediately before and after passage of the ATS — provide no support for the proposition that Congress expected causes of action to be brought under the statute for violations of the law of nations occurring abroad.”

        “[P]etitioners’ case seeking relief for violations of the law of nations occurring outside the United States is barred.”

        The Court says over and over again that it is concerned with a statute’s application to any conduct that occurs abroad, regardless of who the actor may be. The construction you’re advocating for does not exist in Kiobel‘s text.

        And have you even read Palmer? Yes it “relates” to the PAE — in that the case was also about statutory interpretation and legislative intent — but it did not apply the PAE, as you incorrectly claimed above. (“That application of the canon predates Jefferson’s letter, no?”).

        • We’ll see what the Court (and lower courts) does (do) with it. My take is that there was no reason to include that last section if there could never be a way for the presumption to be rebutted. But for that last section , there would be no reason for Justice Kennedy to read the opinion as leaving unanswered questions. Your reading is much more in line with Justice Alito’s basic adoption of the Kavanaugh dissent/concurrence in Doe v. Exxon Mobil. There would also be no reason for him to have concurred in that manner if the majority opinion was meant to read as you claim.

          And yes, I have read Palmer; I don’t know how you can claim that it doesn’t really deal with the presumption. The final result might not have directly turned on the presumption, but it was pretty obvious that it was important to Chief Justice Marshall’s decision. See Pakootas v. Teck Cominco Metals, Ltd., 452 F. 3d 1066, 1076-77 (9th Cir. 2006); see also William S. Dodge, Understanding the Presumption against Extraterritoriality, 16 Berkeley J. Int’l Law. 85, 85 (1998). (citing Palmer) (“Early in the 19th Century, the Supreme Court applied the presumption to limit the reach of federal customs and piracy laws.”).

          • Read the whole final paragraph together, not as isolated sentences. It makes the context clear:

            “On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern…”

            The “[a]nd even where” is distinguishing cases where not all of the relevant conduct took place outside the U.S., but which may also still be excluded under the PAE. In other words, Kiobel is an ‘easy’ case, because there was no conduct in U.S. territory. But there will be harder cases in the future where there is some territorial activity, but which the PAE still bars, in spite of the territorial connection.

            Alito’s concurrence confirms this:

            In Morrison v. National Australia Bank Ltd., 561 U. S. ___ (2010), we explained that “the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case.”

            Alito is concerned that the majority’s opinion is leaving too big a whole — that cases with some U.S. based conduct (likely by corporate defendants) will occur on U.S. territory, but which, in his view, the PAE should still not allow a cause of action for. He’s not concerned about foreign conduct not being excluded — he’s worried about domestic conduct not being excluded.

            Kennedy’s concern cuts the other way:

            Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.

            Kennedy is signalling that the ATS is merely crippled, not dead. In appropriate cases against U.S. corporate defendants, he might be willing to interpret the PAE as only barring foreign conduct where the “nerve center” behind the conduct is also foreign. If the “nerve center” is domestic, then maybe the PAE doesn’t apply.

            So Kennedy seems much more willing to find that the ATS covers acts even with a minor territorial nexus. Which is probably why the majority opinion was so vague — in order to get both Kennedy and Alito on board, they needed to not address the problem of U.S. corporations who commit international law violations abroad.

          • The PAE didn’t exist in 1818, which is how I can say that Palmer didn’t deal with it.

            And Dodge also says that the Court applied the PAE in Rose v. Himely and the Apollon, but those cases didn’t apply it either. I take Dodge’s article to mean that those cases’ holdings later influenced the development of the PAE, which would be a fair claim, rather than a literal statement that the PAE was applied in them, which would not be.

            Palmer involved a more holistic approach to statutory interpretation, finding that based upon the text and title of the statute, as well as jurisdictional constraints, it was likely that in prohibiting “crimes against the U.S.,” the legislature didn’t intend to proscribe crimes against foreign governments.

            Rose v. Himely involved the actual jurisdictional reach of a foreign tribunal and foreign municipal laws, not how courts should interpret the extent of those laws’ application.

            And the Apollon involved a Charming Betsy presumption, as well as basic statutory construction, to conclude that the challenged statute only intended to apply to ships bound for U.S. ports, not ships bound for foreign ones.

  3. You can parse out all of the concurrences any which way you want. As Justice Brennan used to put it, five votes is what matters most. By my count, Kennedy, Roberts, Scalia, and the Breyer-four would find the presumption rebutted where there is a clear American nexus–i.e., where the United States could be held liable under the law of nations for failure to provide a disaffected alien with adequate means of redress (what was known in the 18th century as a denial of justice). Your reading of the majority and the case essentially moots the entire need of Alito’s concurrence–much less any rationale for why only Thomas chose to join it.

    And with the early 19th century cases, the principle behind what’s going on here is clearly in those cases. Hell, why would Breyer have ever cited Palmer in 2005 right in between clear “PAE” case law if Palmer was always irrelevant? This is all a long-winded way of saying a simple point: the Court may have not yet invented the label, but the same (or extremely similar) principles were being discussed and used by Chief Justice Marshall. No clearly distinct doctrine with a nice modern label may have been applied to it at the time, but was the term “customary international law” even coined by then, either? If not, I suppose your reasoning would suggest that such thing should be seen as distinct from the operative “law of nations” that was explicitly written by the First Congress, but has been–for a very long time–understood to mean the exact same thing as customary international law. I mean, it wasn’t like Holmes Jr. just plucked the PAE concept up out of a brooding omnipresence in the sky with American Banana.

    • Let’s try this a different way: name one case, concurrence, or dissenting opinion, in which it was suggested that the PAE could exclude foreign conduct by an alien, but not foreign conduct by a citizen

  4. If I’m not mistaken, Palmer came to that exact same conclusion. Even Justice Johnson’s dissent noted how “Congress can inflict punishment on offenses committed on board the vessels of the United States or by citizens of the United States anywhere ….” Moreover, the Court’s treatment and slightly different conclusion very soon thereafter in United States v. Klintock confirms this view. Congress responded to Palmer with the Act of March 3, 1819, “to make clear that it wished to proscribe not only piratical acts that had a nexus to the United States, but also piracy as an international offense subject to universal jurisdiction.” United States v. Dire, 680 F.3d 446, 455 (4th Cir. 2012).

    • No, go read Palmer, it did not come to that conclusion. Palmer looked at “[t]he question [of] whether [the Act for the punishment of certain crimes against the United States] extends further than to American citizens, or to persons on board American vessels, or to offenses committed against citizens of the United States is not without its difficulties.” The Act was clearly extraterritorial in its effect, and applied without question where the U.S. has territorial, nationality, or passive personality-based jurisdiction. The Court applied several presumptions and examined the intent of Congress before concluding that an “Act for the punishment of certain crimes against the United States” only criminalized acts that were in fact crimes “against the United States,” rather than crimes against other sovereigns. Klintock was similar, and both cases involved the Court interpreting a statute’s jurisdictional reach on the basis of the legislature’s actual ability to legislate with regards to those subjects.

      The PAE is entirely different. The PAE does not concern itself with any limits on Congressional (or, for that matter, judicial) power. The PAE is an internal rule of court etiquette — as a presumption, it places the Legislature on notice that “if you enact a statute that uses XYZ language, the judiciary will translate such language to mean ABC.” And the PAE’s rule of court etiquette says “when a statute does not specifically state that Congress wants this statute to apply outside of U.S. territory, we reserve the right to interpret the statute to apply solely to conduct occurring on U.S. territory.”

  5. Oh, there’s also Lauritzen v. Larsen, 345 U.S. 571, 578 (1953) (“[I]f any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting. That is a rule based on international law by which one sovereign power is bound to respect the subjects and the rights of all other sovereign powers outside its own territory.”).

    • Lauritzen is the same as Palmer, it’s about interpreting statutes in compliance with the law of nations.

      Here is the point that I think you’re missing: Presumption Against Extraterritoriality =/= Charming Betsy Presumption. PAE is not concerned with substantive international law, and Charming Betsy is. The PAE’s effect applies whether or not international law has any opinion on the subject of a statute’s jurisdictional reach, and Charming Betsy applies only when there is a potential conflict with international law. The PAE’s sole concern is the territorial locus of an act, Charming Betsy’s sole concern is whether a construction of a statute would place it in conflict with international law when there exists a non-conflicting interpretation of it.

      • Your take on Lauritzen is interesting considering that I picked up that quotation from Scalia’s statutory interpretation book earlier today in the section on the presumption against extraterritoriality. Here’s the point that you’re missing from what I am saying: the early Charming Betsy cases gave birth to the presumption against extraterritoriality. They’re related, and that relationship should not be ignored–regardless of whatever Aramco might have said with the two doctrine’s current independence from one another. For our purposes, both canons simply presume that Congress does not exercise universal jurisdiction without making its intentions clear. Sosa took care of the piracy qua piracy paradigm, but the sovereignty concerns and the fact that no other nation recognizes universal civil jurisdiction counseled against using that as a loophole to essentially go beyond customary international law.

        I understand everything that you’re saying with regard to the Kavanaugh/Alito-like reading of the statute if the strict Aramco-like presumption were applied. And I understand why you’d want to criticize the opinion in this case for such bluntness. It sucks when injustice is perpetuated and it feels like the Court is changing the basic rules as it goes along. But all of that forgets that the statute we’re talking about here was enacted in 1789 and should basically be interpreted in line with what the Marshall Court did in Palmer. It’s not changing the basic rules if the Court simply goes back to the original basic rules that were applied to another statute passed by the same First Congress!

        I don’t know what to say with regard to our differing interpretation of Palmer. As I understand it, the point of the decision is that even though a statute could be read to apply universally, the Court rejected that interpretation and applied the common presumption that a nation doesn’t normally legislate for the acts of foreigners in a foreign territory/ship under a foreign flag. This is essentially the same thing Chief Justice Marshall read the statute as requiring a U.S. nexus, even though it was clear that Congress could constitutionally apply the statute universally. Congress quickly overrode the Palmer construction, at least partially, and Klintock soon followed. Some of this must be us talking past one another and emphasizing different things from the history behind the presumption.

        • For our purposes, both canons simply presume that Congress does not exercise universal jurisdiction without making its intentions clear.

          No. No they don’t. They really, really don’t.

          It sucks when injustice is perpetuated and it feels like the Court is changing the basic rules as it goes along. But all of that forgets that the statute we’re talking about here was enacted in 1789 and should basically be interpreted in line with what the Marshall Court did in Palmer.

          It’s like you haven’t read a word I’ve written. I would have been thrilled if the Court had adopted a Palmer-like approach in to evaluate the ATS, or if the Court had used Charming Betsy to find the ATS did not extend jurisdiction in cases without a nexus, or if — as is my personal preference — the Court had used some combination of due process/personal jurisdiction approaches to deny jurisdiction in Kiobel.

          But the Court didn’t. It used the PAE.

          The PAE is a specific canon of construction, and it has a specific line of case law that resulted in its development. Using the PAE is not “essentially the same thing” as using the broad-ranging inquiry to legislative intent and jurisdictional reach found in Palmer. Yes they have some overlapping purposes, and are “related,” as I’ve said like 500 times, but they are not the same.

          Let’s take a little trip down PAE’s memory lane, starting with Foley Bros., Inc. v. Filardo, which is the case Aramco hung its hat on: “The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States, Blackmer v. United States, supra, at 284 U. S. 437, is a valid approach whereby unexpressed congressional intent may be ascertained. It is based on the assumption that Congress is primarily concerned with domestic conditions.”

          Now what does Blackmer v. U.S. say? As Scalia cites to it in Morrison, “[w]ith respect to such an exercise of authority, there is no question of international law, but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his own government. While the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States, the question of its application, so far as citizens of the United States in foreign countries are concerned, is one of construction, not of legislative power.

          Morrison is, if anything, more forceful on this point: “The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law.”

          When the PAE applies, ALL foreign conduct is outside of the scope of the statute, and the matter of whether there is a “U.S. nexus” is wholly alien (pardon the pun) to the Court’s analysis when determining whether or not challenged conduct is outside of the statute’s scope.

          I’m not sure how to be clearer. You can’t identify a single authority applying the PAE in the way you want it to apply, but that doesn’t even seem to faze you.

          • I suppose what I am saying is that Morrison and the modern presumption against extraterritoriality (which I would peg to American Banana rather than Foley Bros.) is really the first lens through which to view the statute. But at that point, it becomes obvious that a strict presumption couldn’t account for piracy and the overall purpose of the statute–to prevent reprisals from foreign governments on account of their injured citizens/subjects. At the end of the day, the presumption is simply supposed to be a starting point to flesh out what is the most likely purpose and meaning of the statute.

            It basically seems like you refuse to believe there was a presumption against extraterritoriality until the 20th century. I see the presumption as something that grew out of Charming Betsy–which would have been the most applicable canon in the late 18th century. The Court here was stuck in between the two and had to hybridize, but the Morrison label is the easiest one to slap on since it is the most recent attempt by the Court to re-invigorate the presumption against extraterritoriality and represents the one where the justices have the most authoritative power to decide (as opposed to getting into a discussion about the nuances of what international law may permit versus what is most customary under international law). Breyer’s concurrence definitely calls out the majority for doing this, but the approach advocated for by Breyer was still too free-floating for the purposes of statutory interpretation.

            I also really want to say how much I appreciate your continuing this conversation with me. Hardly anyone else I know is actually interested in the statute or cares that much about anything else besides the results. (I am not being sarcastic with the prior two sentences.)

    • Okay, now we’re getting somewhere. I still think you’re being far too charitable in your reading of Kiobel, but assuming that’s what the majority actually intended, I would be on board with it as well.

      But I’m willing to take the Court at its word when it says it applied the PAE. Because the Court could’ve applied Charming Betsy, and it could’ve invoked constraints on the legislative or judicial power, and it could’ve indicated that it was actually examining the permissive jurisdictional reach of the court in hearing a case under the ATS or of Congress in enacting it. And instead it used something it called the PAE. I don’t disagree that the roots of the PAE come form earlier case law that invoked more of a Charming Betsy principle than a strict canon of construction, but the PAE already has its own clearly established contours, and using it in the sense you’re suggesting would eviscerate the PAE as we previously knew it.

      Would you disagree that, prior to April 2013, the PAE did not contemplate an exception for extraterritorial effect for the acts of citizens? With the high seas portion alone, Kiobel already started to rewrite the PAE, so it’s not completely implausible to argue that Kiobel’s distortion of the canon goes much farther than that.

      And agreed. I can’t begin to understand why more people don’t find obscure questions of jurisdictional reach to be completely fascinating.

      • Susan,

        I agree with everything you’ve said in this last reply. The piracy exception and discussion is a useful rhetorical device that can be backed up with history, but using it means that we’re not really talking about the strict Morrison/Aramco presumption against extraterritoriality here. I also believe that the piracy exception’s use in this case is the ratio decidendi of the majority approach–that is, piracy is one of the actionable torts that gives rise to a private cause of action, but because universal (civil) jurisdiction over that claim could not, by definition (“on the high seas”/combined with UNCLOS provisions) insult any other nation, it can easily work within the main concerns at the end of the 18th century: protecting our sovereignty and preventing other nations from having rights of reprisal against us. The other two Blackstone paradigms simply wouldn’t make sense in a universal/foreign-cubed application. That meant the plaintiffs were really hanging everything on piracy (which Breyer bought–to an extent). But at the end of the day, it seemed like there was unanimous agreement on one underlying point: if the United States can’t be blamed for this horrendous wrong, it is unlikely that the First Congress meant to provide universal jurisdiction for it–except for the only paradigm that existed back then and continues today–piracy.

        This, combined with the hedged language in section IV of the majority opinion, as well as Kennedy’s concurrence, lead to my take that something less than a strict presumption was read into the statute in this case. In this statutory context, the presumption is meant to only apply on a case-by-case basis, and the presumption can be rebutted if the connection to United States sovereignty/responsibility/culpability is strong enough.

        I honestly think the CACI case in the EDVA right now is a perfect example of where the presumption should be rebutted. Mainly because, like Sosa, the American nexus there is extremely strong. If American courts don’t provide a cause of action to the alien plaintiffs over the American defendants in American courts, those plaintiffs will be denied justice and that could (under 18th century principles of the law of nations) give Iraq a legitimate right of reprisal and the ability to justifiably declare war upon us. Much has changed in international relations since 1789, but that’s how it could play out back in the day.

  6. Pingback: Edmund Randolph Also Disagrees With the Supreme Court’s Decision in Kiobel | The View From LL2

  7. Pingback: Post-Kiobel, the Lower Courts Are Only Pretending to Apply the Presumption Against Extraterritoriality in Alien Tort Statute Cases | The View From LL2

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