“Knowledge”? What’s That? Never Seen That Word Before.

by Kevin Jon Heller

My favorite part of the Wall Street Journal‘s article on ATS litigation, discussed by Ken below, has to be this comment by the lawyer who defends such lawsuits:

In assessing liability, a key question can be whether companies assisted a foreign government that was known to violate human rights, says Joe Cyr, a New York lawyer who defends companies against alien tort claims. But the law is unclear, he adds, about what constitutes knowledge.

A statute that makes use of a particular mens rea and doesn’t define it?  You mean, like the thousands of criminal statutes, both federal and state, that don’t define them either, relying on the fact that the basic mental states in criminal law — negligence, recklessness, knowledge, intent, etc. — have been subject to judicial interpretation, and application by juries, for centuries?  How shocking!  And what is with this “aiding and abetting” thing we’re always hearing about anyway?  Is that some new social networking tool on Facebook that’s all the rage among the pre-teen set?

Call it “The Yoo Effect”: the idea that centuries-old principles of criminal law become radically indeterminate when applied to crimes and torts that conservatives approve of (like torture).  I look forward to the outpouring of conservative sympathy for the next Muslim prosecuted for aiding and abetting a violation of the federal biological weapons statute, 18 USC 175:

Whoever knowingly develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery system for use as a weapon, or knowingly assists a foreign state or any organization to do so, or attempts, threatens, or conspires to do the same, shall be fined under this title or imprisoned for life or any term of years, or both.

“Knowingly” assists?  Who the heck knows what that means?

http://opiniojuris.org/2009/08/29/knowledge-whats-that-never-seen-that-word-before/

19 Responses

  1. I’m not sure I agree, and am quite sure that I don’t think you’ve fairly represented what Cyr said.  You didn’t include, for example, the actual quote from him, in quotation marks.  That’s how Koppel summarized it, and it might be exact or not, but in any case it’s in a general interest newspaper article, not for lawyerly parsing, I would have thought.  I’m not sure it warrants as much lawyerly weight as you’re giving it.

    Moreover, the part actually in quotation marks, the part that you don’t put in your post, does not seem to me obviously crazy:
    “Is it enough to just read a newspaper or a blog that a particular sovereign is engaged in human rights violations? … “Multinationals incur risks anytime they do business with anyone who has been accused of human-right violations.”
    I’m no criminal lawyer, so I won’t be pulled into a discussion out of my depth –  but offhand I can’t see as it warrants your description.
  2. Ken,

    I think my post is completely fair.  Whether the defendant acted with knowledge is a question for the jury.  Perhaps a jury will find knowledge if the plaintiffs prove that the defendant read about a sovereign’s human-rights violations; perhaps not.  If that is unfair to defendants in ATS cases, it’s unfair to defendants in every criminal case in which mens rea is an issue.  Yet I don’t see conservatives complaining about run of the mill murder, rape, drug, or terrorism cases.  Again, the indeterminacy only bothers them when they approve of the underlying conduct (like torture or doing business with human-rights violators).

  3. Hmmm … I don’t think I’ll pick a fight over mens rea with a criminal law prof, so on this I’ll take a pass.

  4. Hello Ken and Kevin, nice to meet you. 

    The uncertainty about what “knowledge” is in the context of whether a corporation should be held liable for aiding and abetting a sovereign state or other third party is reflected in:

    (1) several decisions of the international criminal courts addressing the issue as it applies to individuals accused of aiding and abetting others of international crimes, in part, because of the uncertainty of what constitutes certain of those crimes such as genocide and tortue;

    (2) several decisions of the international criminal courts and US courts addressing the issue as it applies to individuals and corporations accused of aiding and abetting others of international crimes, in part, because of the uncertainty over what level of expectation by the defendant is required…Is it enough to show that the defendant knew that his acts “possibly could” assist the primary wrongdoer in committing the crime alleged?  Is it enough to show that the defendant knew that his acts “could or might” assist the primary wrongdoer in committing the crime alleged? Or, is it necessary to show that the defendant knew that his acts “definitely would” assist the primary wrongdoer in committing the crime alleged?  In addressing the uncertainty of the knowledge requirement,  plaintiffs’ counsel in ATS litigation repeatedly have raised the question as to whether the latter requirement really is any different than the ICC’s “intent to facilitate” standard?  Have they made that point in support of their position that the latter standard should be adopted or in support of one of the softer standards?  (Uncertain, really.) 

    (3) several decisions of the international criminal courts, US courts, legions of briefs by amici as well as the parties addressing the issue as it applies to individuals as well as corporations accused of aiding and abetting others of international crimes, in part, because of the uncertainty about what nexus is required between the defendant’s knowledge and the specific crimes that caused the injuries alleged by the defendant.  Some plaintiffs’ counsel have argued that there need be no nexus whatsoever, akin to Judge Posner’s recent decision interpreting the US Anti-terrorism Act while defense counsel like me have argued that plaintiffs  must show that the defended intended to facilitate/or, alternatively, “knew that his conduct definitely would assist” the primary wrongdoer in committing the specific crime that caused the injuries alleged;

    (4) the deliberations of the Rome Conference in adopting the ICC’s “intent to facilitate” standard  (you should read them if you haven’t)

    (5) all the issues of uncertainty that has plagued criminal corporate law for decades, including whose mens rea binds the corporation and the relationship that is or isn’t necessary between them and those acting on behalf of the corporation and “within the scope of their employment” in aiding and abetting international crimes – these issue have not been resolved under international law, which applies to conduct-related issues under the ATS

    (6)  more than ten years of briefs and decisions in ATS litigation 

    Kevin, unless you are completely oblivious to all of the above, your snotty tone was disengenuous as well as grossly misplaced.  No big deal, I am sure that you are a nice and intelligent man just caught up in your cause and a bit of blogging fever. 

    This is my very first blogging participation and very possibly my last.   Please call me if you would like to discuss.  212 909 0642

    Cheers, Joe

  5. Joe,

    I am aware of what the Rome Statute says.  I wonder whether you are aware that — as I’ve written before — there is no doubt that Article 25(3)(c)’s “intent to facilitate” standard is not the customary international law position.

    I have no doubt that you are able to convince US judges who know very little about ICL that there are ambiguities in the definition of aiding and abetting.  That doesn’t mean those ambiguities actually exist.  (If you aren’t aware of the multiple ICTY cases that have held knowledge of the precise crime abetted is not required, you really should read them.)

    And, of course, none of the “ambiguities” you creatively highlight change the fact that your statement to the WSJ was about what qualifies as knowledge, not the definition in ICL of aiding and abetting.  There is no ambiguity in the former: knowledge requires awareness that a required circumstance is “virtually certain” to exist. Whether the defendant had such knowledge is a question for the jury — which is why lawyers who defend corporations who knowingly facilitate serious international crimes are so desperate to ensure that ATS cases are dismissed pre-trial.

  6. Please work on your tone, Kevin. What an aggravating post to read for anyone who doesn’t automatically share your views.

  7. John,

    You are absolutely right — my apologies.  The US’s Alice-in-Wonderland approach to international criminal law just drives me absolutely insane.

  8. “Things got a little out of hand. It’s just this war and that,   that lyin’ son-of-a-bitch Johnson. I would never hurt you. You know that.”

  9. I’ve lost my patience as well at various moments in the past few years, reading conservative arguments saying that the torture statute is so horribly vague, because it doesn’t list the exact things you’re not allowed to do.

    That’s like saying the ban on murder is vague because it doesn’t say separately that shooting people, strangling them, knifing them, throwing them off stairs, etc. are all forbidden.

  10. Kevin, you do realize that defendants in criminal cases are protected to some degree from the ambiguity of “knowingly” by the requirement that guilt be established beyond a reasonable doubt, while it tort cases the standard of proof is significantly lower?

    And I’m far from an expert in this area, but I assume the ambiguity is magnified when one is trying to prove that a corporation, rather than an individual “knowingly” did something.

    Finally, it’s not exactly unheard of for tort cases to wind up being about jury sympathy for the plaintiff, or jury disgust at the defendant, regardless of the underlying legal standard.  (See breast implant litigation, The). You don’t have to be “conservative” to wonder whether an unpopular multinational oil company facing off against a victim of torture is going into a trial at a major disadvantage.

  11. The reason the definition of knowing is perceived as vague in this context, is that corporations are being held liable for commercial activity, people’s intuitions are such that you should be able to sell any legal product and if the buyer uses it criminally, then the buyer is solely responsible.

  12. David,

    I don’t disagree with you in the slightest.  The point is simply that there is nothing unique about the concept of knowledge as it is used in the ATS statute — it is neither clearer nor more ambiguous than its use in any other kind of statute.  Juries decide whether the defendant possessed the relevant knowledge, whether beyond a reasonable doubt or on a balance of probabilities.  They may well get it wrong, and I certainly don’t deny that there can be non-evidentiary considerations in a jury verdict against a corporation for aiding and abetting human-rights violations.  But there can also be a non-evidentiary bias against defendants accused of aiding and abetting serious acts of terrorism.  Again, I was simply pointing out that to pretend there is something special about knowledge in ATS cases simply isn’t correct.

  13. Anthony,

    But you are making my point.  Our moral intuitions about whether a corporation should be held liable for aiding and abetting human-rights violations has quite literally nothing to do with whether it had knowledge of those violations.  If Congress wants to repeal the ATS statute for the reason you mention, it can.  But, again, that doesn’t change the fact that knowledge for purposes of aiding and abetting in the ATS context is the same as knowledge for purposes of aiding and abetting in any other context.  And that’s all that I was arguing.

  14. I think any movement to repeal the ATS has been limited by the relative lack of success of plaintiffs under it.  I think the Unocal settlement was about the most successful suit, the case that “revived” the act in 1980 resulted in a judgment the plaintiff was never able to collect.

    There’ll be little clamor to repeal it until someone loses big.

  15. Kevin,

    I’m glad we generally agree.

    On the one hand, I can see why it bothers you that people who seem willing to try people for criminal cases based on vague standards get antsy about civil cases based on similar standards.

    On the other hand, conservatives, in general, tend to be pretty hardline on criminal matters, and also pretty unsympathetic to broadening the tort system.  So in that  sense, they are either being consistent, or there is a much broader inconsistency that goes well beyond issues of international law.

  16. @David Bernstein: That’s actually an interesting question, philosophically. Why would one simultaneously support harsh criminal law and narrow tort law? Surely it can’t be that the former is enforced by the state. What could explain this attitude? In principle, torts are “civil wrongs”, a private law parallel criminal justice system. And yet somehow there must be a structural difference that explains the conservative attitude you refer to.

    (The mirror-image liberal approach can presumably be explained by the fact that tort law deals mostly in money damages, which is why enthusiasm for tort law can be consistent with an aversion against locking people up for decades under the criminal justice system.)

  17. Note for those unfamiliar with the ATS:

    Someone dropped me an email, apparently embarrassed to post a comment because it seemed too basic, but actually asking a good question.  Where, the questioner asked, per the discussion above, does the question of “knowledge” or “knowing” get raised in the statute?  Am I missing something about 28 USC 1350?  I read it and then read about how it is a requirement of the statute and I don’t see where it is.
    Not an embarrassing question, as the full text of the section reads:
    The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

    The question of the standard of knowledge can come up in a couple of different ways – ways which are relevant, for example, to the issue of corporate liability on a claim of aiding and abetting.  One is that in order to aid and abet (and assuming, also, that aiding and abetting is something attributable to corporations as a matter of liability in international law, along with corporate liability itself; which not all of us take for granted), you have to “know” something about your aiding and abetting, or should have known, about the thing or the nature of the thing you are aiding and abetting – or some kind of standard of knowledge.

    Kevin’s point is that these standards are used all the time in other kinds of liability settings. Joe Cyr’s point is that they are not as clear as all that as applied in this context.  Beyond that I won’t venture here.

    But it’s not a silly question – reading off the surface of the statute, there’s no mention of “knowledge” as such, and you’re not missing some part of the text or statute.
  18. I second the comments about KJH’s tone. AFAIK ‘knowledge’ is a complicated and difficult concept in a lot of areas, and especially in cases of corporate knowledge.

    I don’t think there is much at all intuitive or obvious about corporate ‘knowledge’, in any area of the law.

    I would be interested to see if KJH would get so excited about a criminal lawyer making such an statement in the context of eg the new crimes of terrorism in countries such as Australia. The mens rea part is far from evident, or so I am given to understand.

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