BBC Graphic June 2011

A previous post noted a recent article on China’s claims in the South China Sea. The most knowledgeable person I know on this issue is my dear friend and former Georgetown colleague, Dr. Charles E. Pirtle. Professor Pirtle was a mainstay in the School of Foreign Service, where he served as an Associate Dean and taught political geography for over 20 years– including the required course, “Map of the Modern World.”  He offers the following comments:

I would like to make just a few brief points about this issue. First, there is nothing new about this claim. China set forth its claim to all the islands located within the “cow’s tounge” in its 1992 law on the Chinese Territorial Sea and Contiguous Zone. My “old” Map students should recall that I used a map similar to the one used here that showed China’s claims to virtually all of the South China Sea. That map can be found on p. 120 of Michael Klare’s book, “Resource Wars,” published in 2001. Second, the outline of the “cow’s tounge,” which consist of nine dashed lines around the islands, rocks and reefs of the South China Sea, first appeared on maps issued by the Nationalist Government of China in 1947; they were just maintained by the Communist Government when it took power in 1949.Third the issues raised by these claims are just one part of a multitude of different disputes that China has with its neighbors and the international community over sovereignty, jurisdiction, and the balance between coastal-states and maritime state rights in the South China Sea. For those interested, read Peter Dutton’s recent article, “Three Disputes and Three Objectives: China and the South China Sea,” in the current (Autumn 2001) issue of the Naval War College Review, which is available on-line.

Baltasar Garzón

An excellent editorial in the New York Times reports on the strange trial of Spanish Prosecutor Baltasar Garzón:

Terrible crimes were committed during and after Spain’s 1936-39 civil war that no court has yet examined or judged. No one knows how many people were taken away, tortured and murdered. Now, one of Spain’s top investigating magistrates, Baltasar Garzón, is on trial for daring to open an inquiry into those atrocities.

Spain is now a vibrant democracy, but Judge Garzón’s trial, which opened last week, is a disturbing echo of the Franco era’s totalitarian thinking. He faces criminal charges that could suspend him from the bench for 20 years for defying an amnesty enacted in 1977 to smooth the transition to democracy. He rightly counters that under international law, there can be no amnesty for crimes against humanity and that unsolved disappearances — thousands of mass graves are unopened — constitute a continuing crime.

In 2008, Judge Garzón briefly began an official inquiry, ordering the opening of 19 mass graves and symbolically indicting Gen. Francisco Franco and several former officials, none still alive, for the disappearance of more than 100,000 people. An appellate court shut the inquiry down. The next year, two far-right groups brought criminal charges against the judge for defying the amnesty law. The government’s prosecutor argued that no crime had been committed, but the Supreme Court accepted the case.

Separately, Judge Garzón faces criminal charges for rulings in two other politically charged cases. We cannot judge the merits of these. But criminal prosecution of magistrates for their rulings is rare in Spain, and could chill judicial independence.

Judge Garzón became famous for his prosecutions of Basque terrorists, Argentine torturers, Chile’s former dictator, Gen. Augusto Pinochet, and Spanish politicians. His powerful enemies now see a chance to end his career.

Judge Garzón is undeniably flamboyant and at times overreaches, but prosecuting him for digging into Franco-era crimes is an offense against justice and history. The Spanish Supreme Court never should have accepted this case. Now it must acquit him.

The Los Angeles Times reports:

A federal appeals court has upheld a ruling that blocked the implementation of an Oklahoma law barring judges from considering international or Islamic law in their decisions.

The 10th Circuit Court of Appeals, in a ruling released Tuesday, affirmed an order by a district court judge in 2010 that halted the law from taking effect. The ruling also allows a Muslim community leader in Oklahoma City to continue his legal challenge of the law’s constitutionality.

The measure, known as State Question 755, was approved with 70% of the vote in 2010.

The law is an amendment to the state constitution and bars courts from considering the legal precepts of other nations or cultures. “Specifically, the courts shall not consider international law or Sharia law,” the law reads.

The appellate court opinion pointed out that proponents of the law admitted to not knowing of a single instance in which an Oklahoma court applied Sharia law or the legal precepts of other countries.

“This serves as a reminder that these anti-Sharia laws are unconstitutional and that if politicians use fear-mongering and bigotry, the courts won’t allow it to last for long,” said Muneer Awad, the executive director of the Council on American-Islamic Relations in Oklahoma.

Awad sued to block the law, contending that it infringed on his 1st Amendment rights. He argued that the law would stigmatize those who practice Islam and deny him rights available to those practicing other religions. For instance, he argued that the law would affect the execution of his will after his death because it instructs the judge to use Sharia law if his wishes are not clear.

Proponents of the law argued that it was intended to ban courts from considering all religious laws and that Sharia was simply used as an example. The appeals court, however, disagreed.

“That argument conflicts with the amendment’s plain language, which mentions Sharia law in two places,” the court opinion read.

The court ruled that Awad made a “strong showing” that he is likely to succeed in his challenge of the law. The ruling keeps the injunction in place as Awad’s lawsuit continues.

The appeals court took up the case after the Oklahoma attorney general’s office appealed the injunction order. “My office will continue to defend the state in this matter and proceed with the merits of the case,” Atty. Gen. Scott Pruitt said in a statement.

Sharia — which translates roughly as “path” in Arabic — is intended to guide Muslims to connect with God and is rooted in mercy and compassion, said Salam Al-Marayati, the president of the Muslim Public Affairs Council in Los Angeles. It governs many common activities, including fasting and daily prayer.

Al-Marayati argues that campaigns to ban Sharia present a distorted view of Islamic law. “They equate it with unjust and abusive practices originated by tyrannical regimes in the Middle East,” he said. “They use misconceptions about Muslims to misinform the American public.”

The 10th Circuit decision can be found here. A very wise decision.

WASHINGTON (Reuters) – It was New Year’s Eve when President Barack Obama reluctantly signed into law the legislation he had earlier threatened to veto: a mammoth U.S. defense bill with a multitude of restrictions on the administration’s handling of detainees.

Administration officials had spent weeks trying to rewrite the legislation in Congress. And although Obama signed it into law, he also issued a lengthy, at times indignant, “signing statement” listing the many ways he disagreed with the measure, and suggesting he may even ignore parts of it.

This was the sort of thing that Obama promised he would not do back when he was a candidate for the White House. He told the Boston Globe in 2007 that he would not use presidential signing statements to “nullify or undermine” instructions from Congress enacted into law, declaring that his predecessor George W. Bush had gone too far down that path.

Typically, a U.S. president merely puts his signature on a bill in order to sign it into law. Bush, however, often added “signing statements” to assert, for example, that a particular bill infringed on the constitutional powers of the presidency.

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In the past two weeks, Obama has issued two strongly worded signing statements criticizing provisions of new laws. The previous one was two days before Christmas, when the president signed into law a massive bill funding the U.S. government through the end of the current fiscal year on September 30.

“I would say that his most recent signing statements are of the variety common to the Bush presidency, where the president makes some strong constitutional claims” but is vague on what he would do about them, said Christopher Kelley, a professor at Miami University of Ohio who has researched presidential signing statements.

“Obama seems to be saying that he would abide by the law until he was no longer able to abide by the law. That is a hard thing to quantify,” Kelley said.

“Signing something and saying you are not going to follow portions of it is problematic,” said Anthony Clark Arend, a professor of government at Georgetown University. “I believe that the framers of the Constitution would have felt that’s exactly the kind of legislation you need to veto.”

But the recent defense and the spending bills were important to the running of the U.S. government, and Obama was almost “held hostage” by them, Arend added. So Obama signed them – with reservations.

“He is declaring he will not follow it if he feels it is in the best interest of the country,” Arend said.

Many U.S. presidents have attached comments to laws as they sign them. But the practice became controversial under Bush, especially after he signed a torture ban in 2005 but attached a statement that legal specialists said reserved the right to bypass it as commander in chief.

CLAIM OF EXECUTIVE AUTHORITY

Obama, a Democrat, has issued 29 signing statements since he entered the White House in 2009, versus 172 during the eight-year presidency of the Republican Bush, according to Kelley.

“We’ve never had a president assert as broad a claim of executive authority as we did under Bush,” Arend said.

And White House officials say Obama is handling signing statements exactly as he promised he would as a candidate.

Responding to a 2007 candidate questionnaire from the Globe, Obama chided Bush, saying he had “attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions … and to raise implausible or dubious constitutional objections to the legislation.”

But Obama added: “No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives.”

The New Year’s Eve signing statement “falls cleanly within the guidelines articulated by then-presidential candidate Obama four years ago,” White House deputy press secretary Josh Earnest said.

In March 2009, shortly after he took office, Obama issued a memorandum promising restraint, saying, “I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional.”

Still, by mid-2009 lawmakers already were complaining about some of his signing statements.

In a high-profile case, Obama signed a bill with more funding for the International Monetary Fund and the World Bank, but angered leading Democrats when his signing statement said he did not have to comply with some of the attached conditions.

In the December 31 statement on the bill authorizing defense programs, Obama bristled at the requirements for military custody as a rule instead of prison for suspected al Qaeda militants. He called them “ill-conceived” and said they would do nothing to improve U.S. security.

Supporters say the requirements merely codify what has been the practice for some years.

Obama suggested he was only signing the measure because it included a presidential waiver, saying this would allow the administration to continue being “relentlessly practical” in its handling of al Qaeda suspects. He declared his administration would not authorize the indefinite military detention without trial of American citizens.

Obama objected to restrictions on his authority to transfer detainees to a foreign country, and said, “My administration will interpret them to avoid the constitutional conflict.”

Reuters first reported last month that the Obama administration is considering transferring to Afghan custody Taliban prisoners held at the Guantanamo Bay detention center [ID:nL1E7Ns15Z].

Obama’s problems with the defense bill weren’t limited to detainees. He said he would interpret rules about sharing classified information with Russia in a way that does not limit his ability to conduct foreign affairs.

And he said that if new sanctions targeting Iran end up conflicting with his constitutional authorities, “I will treat the provisions as non-binding.”

Senator Carl Levin, a Democrat who was a co-sponsor of the new law’s provisions on detainees, said Congress intended for the law to be flexible.

“One of the goals of this long-overdue law on detainee policy was to give the executive branch adequate flexibility in its implementation, and I am glad that we succeeded. The president’s stated intention to use the flexibility Congress has given him is consistent with the statute,” Levin said in a statement e-mailed to Reuters.

Arend of Georgetown University said he felt the current angry political climate in Washington to some extent had created a situation where Obama was issuing more pointed, less diplomatic, signing statements.

“My sense is that Congress is becoming more and more intrusive on the president’s constitutional powers. And so to some degree, that is pushing the president in the position to challenge this. So I don’t know if he’s becoming more like Bush, or if Congress is becoming more intransigent. It’s probably a little bit of both,” Arend said.

Dean Carol Lancaster

Voice of America Host Carol Castiel interviews Georgetown University School of Foreign Service Dean Carol Lancaster and me about foreign policy challenges for the United States in 2012. Areas discussed include: China, Iran, the Arab world, Latin America, and the US defense budget.

1 Georgetown University    69%

2 Johns Hopkins University    60%

3 Harvard University    57%

4 Princeton University    44%

5 Tufts University    41%

6 Columbia University    40%

7 George Washington University    38%

8 American University    20%

9 London School of Economics and Political Science    12%

10 University of Chicago    8%

11 University of Denver    7%

12 Stanford University    6%

13 Yale University    6%

14 Syracuse University    5%

15 University of California-San Diego    4%

16 Massachusetts Institute of Technology    4%

16 Oxford University    4%

18 University of California-Berkeley    3%

19 New York University    2%

19 University of Michigan-Ann Arbor    2%

Earlier today, President Obama signed H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012,” and issued the following signing statement:

The White House

Office of the Press Secretary

For Immediate Release

December 31, 2011

Statement by the President on H.R. 1540

Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.

Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.” This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

My Administration will design the implementation procedures authorized by section 1022(c) to provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law. And I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not limited to seeking the revision or repeal of provisions should they prove to be unworkable.

Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.

Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This hinders the executive’s ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles. The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.

Section 1029 requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals. I sign this based on the understanding that apart from detainees held by the military outside of the United States under the 2001 Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section 1022 before the Justice Department files charges or seeks an indictment. Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference. Moreover, section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement section 1029 in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.

Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia. Section 1244 further specifies that this report include a detailed description of the classified information to be provided. While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President’s constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems. Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments. Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.

My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning. My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.

BARACK OBAMA

THE WHITE HOUSE,
December 31, 2011.

HT: Ari Kohen

The White House

Office of the Press Secretary

For Immediate Release

December 23, 2011

Statement by the President on H.R. 2055

Today I have signed into law H.R. 2055, the “Consolidated Appropriations Act, 2012.” This bill provides the funding necessary for the smooth operation of our Nation’s Government.

I have previously announced that it is the policy of my Administration, and in the interests of promoting transparency in Government, to indicate when a bill presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of H.R. 2055 raise constitutional concerns.

In this bill, the Congress has once again included provisions that would bar the use of appropriated funds for transfers of Guantanamo detainees into the United States (section 8119 of Division A), as well as transfers to the custody or effective control of foreign countries unless specified conditions are met (section 8120 of Division A). These provisions are similar to others found in the National Defense Authorization Act for Fiscal Year 2012. My Administration has repeatedly communicated my objections to these provisions, including my view that they could, under certain circumstances, violate constitutional separation of powers principles. In approving this bill, I reiterate the objections my Administration has raised regarding these provisions, my intent to interpret and apply them in a manner that avoids constitutional conflicts, and the promise that my Administration will continue to work towards their repeal.

The Congress has also included certain provisions in this bill that could interfere with my constitutional authorities in the areas of foreign relations and national security. Section 113 of Division H requires the Secretary of Defense to notify the Appropriations Committees of both Houses of Congress 30 days in advance of “any proposed military exercise involving United States personnel” that is anticipated to involve expenditures of more than $100,000 on construction. Language in Division I, title I, under the headings International Organizations, Contributions for International Peacekeeping Activities, disallows the expenditure of funds “for any United Nations peacekeeping mission that will involve United States Armed Forces under the command or operational control of a foreign national,” unless my military advisers have advised that such an involvement is in the national interest, and unless I have made the same recommendation to the Congress. In approving this bill, I reiterate the understanding, which I have communicated to the Congress, that I will apply these provisions in a manner consistent with my constitutional authority as Commander in Chief.

Certain provisions in Division I, including sections 7013, 7025, 7029, 7033, 7043, 7046, 7049, 7059, 7062, and 7071, restrict or require particular diplomatic communications, negotiations, or interactions with foreign governments or international organizations. Others, including sections 7031, 7037, and 7086, hinder my ability to receive diplomatic representatives of foreign governments. Finally, section 7041 requires the disclosure to the Congress of information regarding ongoing diplomatic negotiations. I have advised the Congress that I will not treat these provisions as limiting my constitutional authorities in the area of foreign relations.

Moreover, several provisions in this bill, including section 627 of Division C and section 512 of Division D, could prevent me from fulfilling my constitutional responsibilities, by denying me the assistance of senior advisers and by obstructing my supervision of executive branch officials in the execution of their statutory responsibilities. I have informed the Congress that I will interpret these provisions consistent with my constitutional duty to take care that the laws be faithfully executed.

Additional provisions in this bill, including section 8013 of Division A and section 218 of Division F, purport to restrict the use of funds to advance certain legislative positions. I have advised the Congress that I will not construe these provisions as preventing me from fulfilling my constitutional responsibility to recommend to the Congress’s consideration such measures as I shall judge necessary and expedient.

Numerous provisions of this bill purport to condition the authority of executive branch officials to spend or reallocate funds on the approval of congressional committees. These are constitutionally impermissible forms of congressional aggrandizement in the execution of the laws. Although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees appropriate and serious consideration, our spending decisions shall not be treated as dependent on the approval of congressional committees. In particular, section 1302 of Division G conditions the authority of the Librarian of Congress to transfer funds between sections of the Library upon the approval of the Committees on Appropriations of the House of Representatives and the Senate. I have advised the Congress of my understanding that this provision does not apply to funds for the Copyright Office, which performs an executive function in administering the copyright laws.

BARACK OBAMA

THE WHITE HOUSE,
December 23, 2011.

HT: Neal Sonnett

I am not a big fan of signing statements, but I do think that a number of provisions in the bill violate the president’s authority under Article II of the Constitution, especially provisions that do not allow for the funding of certain American participation in UN operations unless the president has been advised by military advisers that such activity would be in the national interest. Under the US Constitution, the president is the commander-in-chief and while one hopes president listens to the advice of military advisers, the concept of civilian control of the military is based on the notion that it is the president’s call. As General Martin Dempsey, Chair of the Joint Chiefs of Staff, recently noted:

One of the things that makes us as a military profession in a democracy is civilian rule. Our civilian leaders are under no obligation to accept our advice; and that’s what it is. It’s advice. It’s military judgments, it’s alternatives, it’s options. And at the end of the day, our system is built on the fact that it will be our civilian leaders who make that decision and I don’t find that in any way to challenge my manhood, nor my position. In fact, if it were the opposite, I think we should all be concerned.

Solicitor General Donald B. Verrilli

Several previous posts ( for example, here, here, and here) have noted recent developments on the question of corporate liability under the Alien Tort Statute. With an HT to Daniel Buk, I am happy to report that the Obama Administration recently filed an amicus brief supporting corporate liability under the ATS. Over at Lawfare, former State Department Legal Adviser John Bellinger explains:

The Obama Administration filed an amicus curiae brief today [December 21, 2011]  with the Supreme Court in support of the Nigerian petitioners in the Kiobel case (which was brought against Shell Oil, relating to its activities in Nigeria), arguing that corporations may be held liable for violations of international law under the Alien Tort Statute.  The brief –signed by State Department Legal Adviser Harold Koh and (somewhat surprisingly) by Commerce General Counsel Cameron Kerry in addition to Solicitor General Don Verrilli – argues that the question of corporate liability under the Alien Tort Statute is governed by federal common law, not by international law, although international law “informs” the issue.  And the brief goes on to argue that under federal common law, corporations may be held liable for violations of both domestic and international law: “[C]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”  The brief states that the United States is not aware of any international law “norm” that would prohibit corporations from being sued for violations of international law.  The brief acknowledges that there are a number of other issues “in the background” of the case (such as aiding-and-abetting liability and extraterritoriality) but urges the Court to address only the corporate liability issue.

This makes a great deal of sense to me. Recently, I participated in an online discussion of corporate liability under the Alien Tort Statute sponsored by the University of Pennsylvania Law Review. In that discussion I argued that corporate liability should obtain under the ATS. In response to an excellent opening statement by Harvard Law Professors Susan Farbstein and Tyler Giannini, I said:

On Monday, October 17, 2011, the United States Supreme Court granted certiorari in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). This is not surprising. As Professors Farbstein and Giannini explain in their excellent Opening Statement, since the Second Circuit ruled in Kiobel that corporate liability did not obtain under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, both the D.C. and Seventh Circuits have taken a contrary view. See Doe v. Exxon Mobil Corp., 654 F.3d 11, 40-41 (D.C. Cir. 2011); Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1017 (7th Cir. 2011).

While it is always difficult to predict how the Supreme Court will resolve the split in the circuits, I am inclined to think that the Court will reject Kiobel for several reasons—many of which have already been described by Farbstein and Giannini. But let me highlight two in particular.

First, I believe that the Second Circuit’s decision in Kiobel fundamentally misinterprets the Supreme Court ruling in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). In Sosa, the Supreme Court set forth the standard to determine whether a violation of a putative norm of customary international law rose to the level of a “‘tort… in violation of the law of nations’” for purposes of the ATS. Sosa, 542 U.S. at 698-99 (quoting 28 U.S.C. § 1350). In the course of a discussion on “the determination whether a norm is sufficiently definite to support a cause of action,” id. at 732, the Supreme Court notes in a footnote that a “related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” Id. at 732 n.20. For some reason, the Second Circuit latched onto this note to indicate that international law provides some form of standard about liability for different types of juridical persons. Referring to the footnote, the Second Circuit claims: “That language requires that we look to international law to determine our jurisdiction over ATS claims against a particular class of defendant, such as corporations.” Kiobel, 621 F.3d at 127 (emphasis omitted). But if one continues to read the Sosa footnote, it becomes clear that the Court was not suggesting that there was an international law standard regarding the differentiation of individuals from corporations, but rather a standard about whether private actors versus state actors could be held liable. (The footnote continues on to compare Judge Edwards’s concurrence in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791-95 (D.C. Cir. 1984), which detailed an insufficient consensus on whether torture by private actors violates international law, with Kadic v. Karadzic, 70 F.3d 232, 239-41 (2d Cir. 1995), which found a sufficient consensus that genocide by private actors violates international law. Sosa, 542 U.S. at 732 n.20.) As the amicus brief of International Law Scholars in support of granting certiorari in Kiobel explains, the “text [of the footnote] shows that the Court was referring to a single class of non-state actors (natural and juristic individuals), not two separate classes as assumed by the Kiobel panel majority….” Brief of Amici Curiae International Law Scholars in Support of the Petition for Writ of Certiorari at 6-7, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (U.S. Jul. 13, 2011), 2011 WL 2743197, at *6-7. Indeed, as the International Law Scholars point out, the Supreme Court has previously noted that the “‘Alien Tort Statute by its terms does not distinguish among classes of defendants….’” Id. at 6 (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 438 (1989)).

Second, as Farbstein and Giannini note, there is ample evidence to support the proposition that international law clearly recognizes that juridical persons, such as corporations, can violate international law. Dating at least as far back as Nuremberg, international law has acknowledged that actors other than natural persons can commit violations of international law. Indeed, the International Law Scholars brief points to a long litany of recent claims to this effect:

A diverse array of treaties reveals the accepted understanding within the international community that corporations have international obligations and can be held liable for violations of international law. See, e.g., Council of Europe Convention on the Prevention of Terrorism, May 16, 2005, art. 10(1), C.E.T.S. No. 196 (2005) (“Each Party shall adopt such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal entities for participation in the offences set forth in Articles 5 to 7 and 9 of this Convention.”); Convention against Transnational Organized Crime, Nov. 15, 2000, art. 10(1), 2225 U.N.T.S. 209 (“Each State Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for participation in serious crimes involving an organized criminal group and for the offences established in accordance with articles 5, 6, 8 and 23 of this Convention.”); Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Dec. 17, 1997, art. 2, S. Treaty Doc. No. 105-43 (“Each Party shall take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for the bribery of a foreign public official.”); Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 1673 U.N.T.S. 57; International Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 3, 1973 art. I(2), 1015 U.N.T.S. 243 (“The States Parties to the present Convention declare criminal those organizations, institutions and individuals committing the crime of apartheid.”); International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, 973 U.N.T.S. 3; Convention on Third Party Liability in the Field of Nuclear Energy, July 29, 1960, 956 U.N.T.S. 251 (emphasis added in all cases). There is certainly no rule in international law that corporations, regardless of their relationship with a government, enjoy immunity for their state-like or state-related activities, as when they interrogate detainees, provide public security, work weapons systems in armed conflict, or run prisons. As noted by the Special Representative to the U.N. Secretary-General in his summary of international legal principles, the corporate responsibility to respect human rights includes avoiding complicity, which has been most clearly elucidated “in the area of aiding and abetting international crimes, i.e. knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime….” Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, ¶¶ 73-74, U.N. Doc. A/HRC/8/5 (Apr. 7, 2008).

Brief of Amici Curiae International Law Scholars, supra, at 11-13.

But at the end of the day, whether corporate violations of international law can be punished in domestic courts through the remedy provided by a civil suit is a question that international law leaves to individual states. It does not matter whether there is an international law “standard” for civil liability for such violations—a point emphasized by both the D.C. and Seventh Circuits and highlighted by Farbstein and Giannini in their Opening Statement.

In short, in support of Farbstein and Giannini’s arguments, I believe that the Supreme Court will, in fact, reject the majority’s conclusion in the divided panel in Kiobel and hold that there is civil liability under the ATS for corporations that commit torts in violation of the law of nations.

But I would be remiss if I did not point to one interesting legal thread raised in the D.C. Circuit and in the International Legal Scholars brief—the issue of “general principles of law.” As will be recalled, the Second Circuit based its decision exclusively upon what it deemed to be rules of customary international law, concluding that there is no rule of customary international law establishing corporate liability for purposes of the ATS. Kiobel, 621 F.3d at 145. The D.C. Circuit and the amicus brief for the International Law Scholars make an argument that, irrespective of whether there is a rule of customary international law, there is a general principle of law providing for corporate liability for violations of international law. See Exxon, 654 F.3d at 53; Brief of Amici Curiae International Law Scholars, supra, at 14.

Article 38 of the Statute of the International Court of Justice, as is well known, lists three main sources of international law: conventions, custom, and “general principles of law recognized by civilized nations.” Statute of the International Court of Justice, art. 38, para. 1(c). This last source is the most controversial and unclear in its meaning. See Anthony Clark Arend, Legal Rules and International Society 49-53 (1999). One of the most widely accepted meanings of general principles is that the term refers to “general principles of law that are common to the domestic legal systems of states.” Id. at 49. And it is this meaning that the D.C. Circuit applies in Doe v. Exxon. The court notes that “the Kiobel majority overlooked general principles of international law as a proper source for the content of international law,” Exxon, 654 F.3d at 53, and concludes that “[g]eneral principles of international law… offer further support that corporate responsibility for the conduct of its agents under a principle of respondeat superior is recognized in the law of nations,” id. at 54.

So here is the question: will the Supreme Court venture into a discussion of general principles of law? If so, it would make a significant contribution to international legal jurisprudence on this source of international law. As far as I can tell, with the possible exception of a passing reference in a footnote in United States v. Maine, 475 U.S. 89, 103 n.18 (1986), the Supreme Court has never addressed the nature of general principles of law.