The Volokh Conspiracy

The Supreme Court has denied certiori in a pair of Fourth Circuit piracy cases, which raised questions about the Define and Punish power and how federal courts determine international law when incorporated into a federal statute. I had previously argued that the decisions below were clearly correct.

Somali pirates, and the broader contexts of state failure and the maritime economy, are the subject of the new documentary film “Stolen Seas.” It has just had its first U.S. release at Cinema Village in New York. The filmmaker quite adventurously spent significant time with Somali pirates on land and at sea, to good effect. He also less adventurously interviewed me. Hopefully it will get wider release and I’ll be able to see it for myself.

Continuing the analysis of possible Art. I authority for applying the Material Support of Terrrorism statute to three Somali nationals fighting on behalf of al-Shabab in Somalia, with no identifiable link to the U.S. – other than being brought here for trial.

War Powers
The U.S. is not at war with Shabab. They are at war with our pals, Somalia’s notional Transitional government, in a civil war to which we are not a party. It is important to distinguish enemies in the “really hate” sense to war in the constructive or declarative sense.

True, Shabad has aligned itself with Al-Queda. Do the War Powers allow banning anyone in the world from fighting in a conflict to which the U.S. is not a party, but on behalf of a force sympathetic or allied with forces hostile to the U.S.? I don’t know, but my first reaction is that is a stretch. By such logic one could say that the ACA, by making healthier Americans, would make for better soldiers.

Note how this discussion recapitulates government’s move in Hamdan II: first it the argued “material support” rule was an exercise of Offenses Clause powers, then in last minute downgraded D&P to second-stringer, and brought out the general war powers for Art. I support.

With the Supreme Court having declared a limit on the Commerce Clause, the Treaty Power may remain the broadest, least defined governmental power. I do not think general treaties denouncing terrorism would be enough; they specifically do not do what the U.S. wants to do here – establish universal jurisdiction over the crime. Much easier would be to sign a quick executive agreement with the nominal government of part of Somalia, over which the U.S. presumably has a lot of control as it struggles between being nominal and dead.

To be sure, a non-treaty treaty with a non-governing government could be an illustration of the possible excesses of the Treaty power as broadly interpreted. But it might serve the government in a pinch.

Protective Jurisdiction
Assuming their is an Art. I basis, one might ask whether this application of the law would be consistent with international law. Lacking a universal jurisdiction crime, the next fall-back would be “protective jurisdiction.” Definitions of the protective principle require the acts to be “directed against the security of the state” or certain core interests (Restatement). Classic examples have a tight nexus: espionage, counterfeiting. Designation as a foreign terrorist, on the other hand, only requires a determination that the group “threatens” the national security of U.S. or its nationals. I don’t think “threaten” in this context requires any particular intent. Moreover, posing some danger to some U.S. nationals overseas would probably not qualify for the invocation of the protective principle either.

The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war.

The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I discussed why the prosecution exceeds’s Congress’s Define & Punish powers; here we’ll consider other possible Art. I grounds. Today – the Foreign Commerce Clause; later today, War and Treaties. Tomorrow: additional thoughts about American exceptionalism in universal jurisdiction.

Foreign Commerce Clause
My previous post focussed on the Define & Punish Clause as the basis for the MST law; today, we will examine some other suggestions. I addressed the Define & Punish clause first because it is the first Art. I power Congress cited in its “findings” in support of the section. (sec. 301(a)(2) of the public law). Later, the findings do suggest the Commerce powers as a tertiary rationale: terrorism discourages travel from the U.S. to affected country, and vice versa. It also mentions general harm to “market stability.” This sounds a lot like the arguments rejected by the Supreme Court in U.S. v Morrison . Surely Congress’s can’t regulate any crime anywhere in the world just because it upsets things. The commerce argument is even weaker here: if someone moves out of their state because of violence against women, they presumably move to another U.S. state. But if they move from Somalia, they do not presumably move to the U.S.

The connection to U.S. commerce would have to be shown. In the one prior universal jurisdiction “material support” case, Ahmed , the government claimed in the indictment, without providing specifics, that it could show real links to commerce. The district judge accepted that as sufficient for starters [in an unpublished opinion, 2011 WL 5041456]. The present indictment says nothing about foreign commerce.

The Supreme Court has said little about the scope of the power. As a textual matter, the foreign commerce power does not allow Congress to simply regulate “foreign commerce,” but rather that part of it which is “with” the United States. It is not clear that the same kind of “foot-bone-is-connected to the ankle bone” games can be played with the Foreign Commerce clause as with the domestic on. Andrew Colangelo, in the leading article on the subject, argues that it requires a substantial U.S. nexus. Indeed, without that, the Constitution would have incorporated broad universal jurisdiction, without anyone knowing about it until now!

If the Foreign Commerce clause is enough here, it would mean several recent federal cases finding no universal jurisdiction over drug trafficking and piracy conspiracy case were wrongly decided: surely those things are linked to foreign commerce in the most general sense.

One can imagine a broader argument that the terrorist group designation is a regulation of foreign commerce, and the material support statute “necessary and proper” to that. And that would turn on the particular group and executive finding...

Some have suggested that the Foreign Commerce Clause should, on the contrary, be broader than the Interstate clause, because there is no background principle of federalism to protect. I see the point, but am hesitant for two reasons.

First, Congress is a government of limited and delegated powers. It can only have powers to regulate conduct anywhere in the world with no demostrable nexus if these were either preexisting powers of states, or somehow a natural emergent power of national sovereignty. I think neither is the case. The latter point can be seen from the fact that no other country exercises universal jurisdiction over this kind of thing...

Second, while Foreign Commerce authority is not concurrent with states, it is shared with other countries, whose existence and sovereign competency the Framers were aware of. Consider Hamilton’s discussion of the Foreign Commerce power (Camillus XXXVI):

Congress (to pursue still the case of regulating trade) may regulate, by law, our own trade and that which foreigners come to carry on with us; but they cannot regulate the trade which we may go to carry on in foreign countries; they can give to us no rights, no privileges, there. This must depend on the will and regulations of those countries; and, consequently, it is the province of the power of treaty to establish the rules of commercial intercourse between foreign nations and the United States. The
legislative may regulate our own trade, but treaty only can regulate the national trade between our own and another country

In the next few days, I’ll discuss possible sources of Art. I authority for the the federal prosecution of three foreigners for fighting on the side of al-Shabab in Somalia, and brought forcibly to the U.S. for trial. Previously, I’ve argued that this prosecution cannot be sustained under the Offenses Clause. But first lets put this in historical and political context.

The use of the material support statute to prosecute foreign fighters in foreign wars is certainly novel, but it has a a historical cousin, which highlights the unusualness of the present prosecution in Brooklyn.

The Neutrality Proclamation of 1793, and subsequent Act, banned Americans from participating, or providing what we might call material support, to the belligerents in the Napoleonic Wars. The idea was such involvement could drag the U.S. into the war. The measures were extremely controversial, leading to the Pacificus-Helvedius debate between Hamilton and Madison. One of the secondary questions was the source of constitutional authority: it was variously placed in what I’d call the “dormant war power” – violations of neutrality by citizens undermined Congress’s prerogative of choosing our wars – or various treaty obligations to the particular warring states. Foreign commerce would do too. (I discuss the Art. I basis for the law in Part II.D.2 of this new article.)

The extraterritorial application of the Material Support statute to foreigners engaged in foreign wars essentially applies the Neutrality Act to the world. Not only must Americans stay of the of designated conflicts, everyone else must to. Of course, the effect is the opposite of the Neutrality Act: instead of distancing the US from foreign wars, it imports them into U.S. court rooms.

It is interesting to note that two of the men have Swedish citizenship, and the third had British citizenship. He became a news item last year when the U.K. revoked his citizenship shortly before his mysterious disappearance in Africa. He only reappeared in Brooklyn federal district court.

Given the lack of protest by Sweden, and the citizenship-stripping by Britain, one might think they are happy/complicit about the U.S. prosecution. I’ve noted before the process of “Goalization,” how countries transfer pirates to African countries with less cumbersome justice systems – a kind of cheapest-justice-provider. Apparently the European governments were watching these Islamist fighters for a while but couldn’t move against them. So maybe transferring terror suspects to the U.S. for trial is the European version of America’s sending them to Egypt or Iraq...

A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group. To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

This is an aggressive – and unconstitutional – assertion of universal jurisdiction. The U.S. is prosecuting foreign nationals for their participation in a foreign civil war. Congress, as the Supreme Court recently reminded us in the Health Care decision, is truly one of limited regulatory powers, and thus the first question about such a case is what Art. I power gives Congress the power to punish entirely foreign conduct with no U.S. nexus.

The men have been charged under the “material support for terrorism” statute, 18 USC 2339B . Apart from the many controversies about the substantive sweep of the law, it casts a very broad jurisdictional net. By its terms, it applies to foreigners who support designated foreign terror groups with no connection to the U.S. In other words, it makes terrorism anywhere a federal offense.

While the statute has previously been used to prosecute extraterritorial conduct by foreigners that conducted significant dealings in the U.S., this is only the second apparently “universal” prosecution.

The Art I. authority for prosecuting conduct under universal jurisdiction is the “Define and Punish” clause. Yet the clause limits universal jurisdiction to crimes, like piracy, that are i) “offenses against the law of nations,” and ii) treated as universally cognizable by the law of nations. Congress cannot “define” something as a universal offense when the law of nations has not done so – not because of any superiority or comity of international law, but because that is the limit place by the Define and Punish Clause.

I have elaborated this theory of the Define and Punish Clause and its implications in a series of recent papers.

More importantly, recently several federal courts have adopted this position.
Thus in U.S. v. Bellaizac-Hurtado, 700 F.3d 1245 (2012), the 11th Circuit held unconstitutional a universal jurisdiction prosecution of drug trafficking in a foreign country. It held that drug trafficking had not been recognized as a “offense against the law of nations,” and thus cannot be reached by Congress under the Offenses Clause. One of the judges added in concurrence that because drug trafficking is not universally cognizable in international law, it cannot be punished universally through the Offenses power.

Similarly, in U.S. v. Ali, the a D.C. federal district court threw out charges of piracy and conspiracy to commit piracy because universal jurisdiction for such acts only ran on the high seas. And the Fourth Circuit in U.S. v. Dire
680 F.3d 446 (2012) agreed in dicta. (And of course, in Kiobel the Supreme Court is reconsidering whether universal jurisdiction exists under the Alien Tort Act.)

Material support for terrorism is a particularly weak case for the Offenses Clause, as the D.C. Circuit had ruled in Hamdan that it was not a war crime (though this does not rule out its being another type of international offense), and terrorism itself does not violate international law, as the Second Circuit has held in Yousef.

Indeed, I know of know other case in the world of material support for terrorism being prosecuted through universal jurisdiction. In prosecutions under the Define and Punish Clause, courts have increasingly (and properly) required actual evidence of past state practice to establish an international norm, as I’ve discussed here before.

The policy behind the material support statute, when applied without a U.S. nexus, is to punish actors whose political actors whose goals and methods the U.S. disapproves of. Al Shabab is a pernicious and destabilizing force, but that does not give the U.S. Congress Art. I power to criminally punish entirely foreign conduct simply because it runs counter to U.S. foreign policy.

There are other ways the U.S. can, consistent with the Constitution, engage and repress Al Shabab and other purely foreign terror groups. It can help local governments that are fighting them. It can even use military force itself. It the beef with Al Shabab is that it is an ally of other forces actively hostile to the U.S., it members (but perhaps not supporters) could perhaps even be detained militarily as co-belligerents.

(Thanks to Jon Bellish for the pointer.)

UPDATE: The defendants seem to be among the folks discussed in today’s Washington Post renditions story:

The three European men with Somali roots were arrested on a murky pretext in August as they passed through the small African country of Djibouti. . . . U.S. agents accused the men — two of them Swedes, the other a longtime resident of Britain — of supporting al-Shabab, an Islamist militia in Somalia that Washington considers a terrorist group. Two months after their arrest, the prisoners were secretly indicted by a federal grand jury in New York, then clandestinely taken into custody by the FBI and flown to the United States to face trial.