Edmund Randolph Also Disagrees With the Supreme Court’s Decision in Kiobel

Oliver Ellsworth, as the primary drafter of the Judiciary Act of 1789, tends to get the lion’s share of the credit for the enactment of the Alien Tort Statute. Often overlooked in the history of the ATS, however, is the role played by Edmund Randolph, the first Attorney General for the United States.

Randolph was part of the congressional committee that drafted the original “recommendation to the states to enact laws for punishing infractions of the laws of nations,” in November 1781, which is frequently cited as a precursor to the ATS.
That resolution also contained a nascent version of the ATS’ grant of civil jurisdiction, providing “[t]hat it be farther recommended to authorise suits to be instituted for damages by the party injured” in the event of such a breach. During the Constitutional Convention, Randolph’s contributions demonstrated his continuing interest in the purposes served by the ATS. Randolph repeatedly criticized the failure of the Articles of Confederation to restrain states from engaging in “acts against a foreign power contrary to the laws of nations,” and argued that the federal government should have the power to redress violations of neutrality that might drag the U.S. into war. He also kicked off Article III’s inclusion of the Constitution, helped introduce the “to define … offences against the laws of nations” language in Article II, and advocated for the federal judiciary’s power over “questions which involve the national peace and harmony.”

He also tried to re-write the Judiciary Act of 1789, although he failed at that. But Washington appointed him as the United States’ first Attorney General, and in that capacity, he affirmed the extraterritorial effect of the ATS. In a memorandum provided to Thomas Jefferson regarding the slave abductions in Florida and St. Domingo, Randolph confirmed that although no criminal jurisdiction would extend to those acts, civil jurisdiction was plainly to be had in federal courts, where an alien brought a suit seeking damages for the Georgians’ violation of international law:

Neither of the two cases is cognizable in the U.S. criminaliter; because they arose within the local jurisdiction of Florida and St. Domingo. Generally speaking, Incendiaries, poisoners, and other very high offenders may be demanded by the sovereign from whose territory they fled; and ought to be delivered up, according to the law of nations. But no such power exists in the U.S., by which such a surrender can be made.

Civiliter, however, damages may be recovered in the courts of the U.S. under the jurisdiction established by the judicial law if an alien be a party; and the state courts, if both [plaintiff] and [defenant] be citizens.

The federal judiciary has also cognizance of offences against the law of nations, because that law is attached to the U.S. from the nature of the subject, without explicit adoption of it; and because offences cognizable under the authority of the U.S. are clearly subjected by the judicial law to the circuit court. This Mr. J[efferson] seems to doubt, and is therefore referred to the 11th section [of the Judiciary Act of 1789].

It is presumed that congress ought not specially to provide, (considering the circumstances of our country) for the surrender of the malefactors sheltered in the U.S. Nor can their definition be necessary; unless it be to define affirmatively those acts which perhaps may not be absolutely offences against the laws of nations yet are injurious to our harmony with foreign nations, if any such there be.

December 5, 1792

Randolph’s memorandum does no more than to restate the then-existing understanding of extraterritorial jurisdiction. There was a firm divide between the extraterritorial reach of criminal jurisdiction — which goes only to citizens on the high seas — and the extraterritorial reach of civil jurisdiction — which knew no such limitation. Although a U.S. citizen could not sue a U.S. citizen in federal court for an extraterritorial violation of international law, that was due to the lack of diversity jurisdiction, not because of a lack of extraterritorial effect. And, even if there was no federal jurisdiction, a U.S. citizen could still bring his suit in a state court, so long as process could be had on the defendant. But where an alien sued for damages, as in a civil suit, the ATS provided for that case to be brought in a federal court — and, to Randolph, and to Jefferson, the extraterritorial reach of that cause of action was as obvious as it was uncontroversial.

In 1792, the United States lacked the ability to proscribe crimes committed by its citizens within the territories of foreign sovereigns, and that was a source of some contention at the time. The Crimes Act of 1790 did proscribe some offences against international law, but only when committed within the jurisdiction of the United States. But to the founding fathers, the limits of a nation’s prescriptive jurisdiction with regard to criminal offences had little or no relation to a nation’s ability to provide for a cause of action, civiliter, for an extraterritorial tort. And, in light of the United States’ inability to provide a criminal remedy for extraterritorial violations of international, its ability to provide for a civil remedy was made all the more important.


7 thoughts on “Edmund Randolph Also Disagrees With the Supreme Court’s Decision in Kiobel

  1. This basically just brings us right back to the discussion we last had regarding Jefferson’s conclusion with the Georgians invading Spanish Florida, no? Your reading Kiobel to categorically preclude extraterritorial application. I suppose I read that fourth section, along with Kennedy’s concurrence, to allow for the presumption to be rebutted in stronger foreign-squared cases. I don’t see the Randolph reading your showing here (or in the Sierra Leone AG opinion) as conflicting with the latter interpretation.

      • Wow, I think Judge Facciola got that one totally wrong. It looks like the ATS will be up again, at least before the Circuit Courts, sooner than I would’ve expected.

    • I am reading Kiobel to preclude extraterritorial application because Kiobel literally says that it precludes extraterritorial application:

      To begin, nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach. The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach—such violations affecting aliens can occur either within or outside the United States. Nor does the fact that the text reaches “any civil action” suggest application to torts committed abroad[.]

      How does it get plainer than that? ‘Nothing in the ATS suggests it should reach torts committed abroad,’ Under Morrison, the resulting conclusion is not in question: “When a statute gives no clear indication of an extraterritorial application, it has none.”

      You seem to be reading Kiobel to have, in secret, adopted the Solicitor General’s “significant and material conduct” test in Morrison, which the Court firmly rejected there. But the only logical interpretation of Kiobel’s reference to claims that “touch and concern the territory of the United States” is that it was to contrast claims where “all the relevant conduct took place outside the United States” — i.e., where conduct partly occurs in the United States. And the only logical interpretation of something that both “touches the territory of the U.S.” and “concerns the territory of the U.S.” is something that physically has a U.S. nexus and takes place here (i.e., “touches”) and is also focused or intended to affect U.S. territory (i.e., “concerns”).

      The Mwani opinion’s conclusion also seems to strategically mis-paraphrase Kiobel to get its result, by holding that the claims there could be said to be “touching and concerning the United States with sufficient force.” But Kiobel phrased it differently: “even where the claims touch and concern the territory of the United States.”

      And at least in Mwani there are allegations that “overt acts in furtherance of that conspiracy took place within the United States,” which is arguably territorial for purposes of the PAE. And maybe you could argue the U.S. embassy in Nairobi is “actually” U.S. territory, although that kind of goes against U.S. v. Spelar (1949). But even allowing the ATS to apply to Mwani still wouldn’t be enough to have the ATS apply to the St. Domingo incident that Jefferson and Randolph are referring to.

      • I think we had this debate before. My reading is that a direct nexus is enough. By direct, I really just mean whether the United States could be said to be responsible for creating a remedy, or risk justifying a reprisal by the Alien’s home country. The Domingo incident would be covered, but the Al Qaeda claim certified below very likely would not–as it would seem very difficult to say that the United States must provide a remedy in that instance.

        Again, this is tea-leaf reading, but Section IV of that opinion wouldn’t exist otherwise, and the narrowest concurrence of Justice Kennedy’s militates toward a non-sweeping conclusion of the presumption’s unusual application in this statute.

  2. Pingback: Thomas Jefferson Disagrees with the Supreme Court’s Decision in Kiobel | The View From LL2

  3. 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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