There is a classic jury instruction that reads, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” I immediately thought of that instruction when I read Obama’s national-security speech today, because it contains such a blatant lie that it is impossible to take anything else that Obama said seriously:

And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.

The United States, of course, has used drones to attack wedding parties. And funerals. And rescuers. And densely populated villages. Yet Obama has the temerity to claim that the US does not launch attacks unless there is “near certainty” that no civilians will be harmed. Has there been a bigger — and more obvious — lie since John Brennan’s risible claim in 2011 that drone strikes had not caused “a single collateral death”?

What is most perverse about Obama’s purported requirement is that, from a legal standpoint, it is completely unnecessary. International humanitarian law does not demand perfection; it demands proportionality. Innocent civilians die in legitimate military attacks. They always have, and they always will — no matter how “precise” weapons like drones become. Every military commander in every country in the world accepts that basic fact of warfare. But not Obama, winner of the Nobel Peace Prize. He cannot bring himself to acknowledge that the US is — like every other country — willing to launch attacks that are likely to kill innocent civilians when it believes the targets are important enough. He would rather pretend, in public and seemingly without shame, that the US is more virtuous and has cleaner hands than everyone else, friend and foe alike. Never mind that if the US took his targeting standard seriously, its drone fleet would be gathering dust in a hangar somewhere.

Obama gives a good speech. But, as the jury instruction goes, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others.” I think it is safe to say that we should be deeply distrustful of all the claims Obama made in his speech today, not just the wilfully false one. We simply cannot count on him to tell us the truth about the US’s national-security policy.

Last December, the U.S. Senate failed to give consent to U.S. ratification of the Convention on the Rights of Persons with Disabilities (CRPD).  Since the election hasn’t really changed the composition of the Senate all that much, I kind of thought this treaty was dead, or at least dormant, for a while here in the U.S.  Maybe not!

Groups opposed to US ratification of the CRPD are saying that the Senate Foreign Relations Committee will hold hearings on June 4 to discuss ratification of the treaty.  And the critics are ready. In the latest critique, Iain Murray and Geoffrey McClatchey argue that the CRPD really does go beyond what U.S. law requires under the American with Disabilities Act by suggesting all entities must give all individuals accommodations, whereas the ADA has a number of important exemptions.  I am not sure about this, and it seems like a fairly technical matter that could be interpreted narrowly or broadly. Since the CRPD would be non-self-executing, I am not sure this would be a huge problem for Congress, which could easily say that the ADA is enough to comply with the CRPD.

More problematically, the senators who offered their opposition last summer in the SFRC committee hearings are deeply troubled by the refusal of the Obama Administration to clarify that the language requiring equal treatment in the provision of “health care” for “sexual and reproductive health” in the CRPD’s Article 25 does not include abortion services. Again, I think the practical impact is fairly small, but I don’t fault senators who are pledged to oppose expansion of abortion services to be worried about this.  Senator Marco Rubio’s proposed “declaration” to attach to advice and consent would seem to solve this.

The United States understands that the phrase “sexual and reproductive health” in Article 25(a) of the Convention does not include abortion, and its use in that Article does not create any abortion rights, cannot be interpreted to constitute support, endorsement, or promotion of abortion, and in no way suggests that abortion should be promoted as a method of family planning.

I don’t see this is a big deal, but if it would remove one obstacle to ratification and get the necessary votes, I don’t see why CRPD proponents wouldn’t just agree to take this language on.

Overall, I do think critics of the CRPD are overstating the likelihood that the treaty will have a meaningful impact on U.S. law and policy.  There could be an impact, but the institutional protection is that any changes required by the CRPD will have to clear Congress in the form of another statute. This is a non-trivial institutional protection.  Sure, the Disabilities Committee will probably crank out some interpretations of the CRPD that the U.S. Congress will disagree with, but the chances of those interpretations seriously affecting U.S. law seem fairly small.

On the flip side, I also think the proponents of the CRPD are exaggerating its benefits.  It may have some small impact on the practice of foreign countries, but there is little evidence it would lead to wholesale changes in other countries either.

As I have argued before, the potential problems in this treaty are just not serious enough for me to get worked up about it.  On the other hand, the benefits are not exactly large enough to get excited about either. Still, the upcoming battle for the CRPD is a proxy for the entire U.S. attitude toward the various U.N. human rights treaties. So it matters, even if this particular treaty is not a big deal.

[Ingrid Wuerth is Professor of Law and Director of International Legal Studies at Vanderbilt University Law School.] 

Yes, this is another post on foreign official immunity, prompted in part by the Fourth Circuit’s decision in Samantar.  It responds to Professor Bill Dodge’s post here and contributes to the growing blog commentary on this topic summarized in my earlier post here.  I am grateful to Opinio Juris for hosting this discussion.

In this post, I focus on just one issue.  The Fourth Circuit’s decision in Samantar reasoned that jus cogens violations are not “private acts” but instead can constitute “official conduct” that comes within the scope of foreign official immunity.  Bill disagrees, arguing that conduct violating jus cogens can never be official for immunity purposes, but is instead always private.  Facts on the ground, State practice, and the purposes of immunity all suggest that the Fourth Circuit was correct.

As other commentators have emphasized, the perpetrators of human rights abuses do not generally operate privately, but instead “through the position and rank they occupy.”  It is their official position which allows them to “order, instigate, or aid and abet or culpably tolerate or condone such crimes as genocide or crimes against humanity or grave breaches of the Geneva Conventions.”  (Antonio Cassese, at 868).  Thus even for many people who strongly favor accountability in international fora (like the late Professor Cassese), it is hard to view jus cogens as somehow inherently private; one might call this a flies-in-the-face-of-reality argument.  (Dapo Akande & Sangeeta Shah, at 832 (further citation omitted)).  The House of Lords itself – in an opinion directly counter to Bill’s position –rejected the argument that jus cogens violations are not official acts for immunity purposes. Jones v. Saudi Arabia ¶ 19 (Lord Bingham) (“I think it is difficult to accept that torture cannot be a governmental or official act..”) id. at ¶ 85 (rejecting “the argument that torture or some other contravention of a jus cogens cannot attract immunity ratione materiae because it cannot be an official act.”) (Lord Hoffman).

What State practice does support the not-official-acts argument?  (more…)

Armenian-American groups are up in arms over the U.S. government’s decision to file an amicus brief against a California law allowing claims against insurance companies by “Armenian genocide victims.”  But they shouldn’t be. The law really involves an ongoing constitutional powers debate between the states and the federal government over foreign affairs, and the U.S. government is siding (not surprisingly) with its own powers.  What is more interesting about this case, in the wake of Kiobel, is how human rights groups will increasingly support state autonomy in foreign affairs (to allow human rights lawsuits) and how business and conservative groups will likely oppose it.

The California law had been struck down by a unanimous Ninth Circuit en banc panel on the grounds that it was preempted by federal government policies and constitutional powers over foreign affairs. The law extended a statute of limitations on insurance claims against insurance companies that do business in California for residents or non-residents who are found to be “Armenian genocide victims.”  Both the district court and the initial appellate court panel had found at least some parts of the law could survive a federal preemption challenge (as Roger described here), so the unanimous en banc panel decision was quite surprising.

The Solicitor General’s brief focuses mostly on the “field preemption” theory developed most recently in the U.S. Supreme Court’s decision in American Ins Association v. Garamendi. Field preemption describes a conflict between a state’s actions and the federal government’s “field”, such as foreign affairs.  Conflict preemption focuses on the idea that the federal government has made an express legal determination with which the state law conflicts (e.g. through a statute or treaty, or maybe an “executive foreign policy”). Where the federal government’s policy on the Armenian genocide is a fairly complex muddle, I don’t think there is much of a case for conflict preemption.

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

In Yousuf v. Samantar, the U.S. Court of Appeals for the Fourth Circuit held that a former Somali official was not entitled to official act immunity for alleged violations of jus cogens norms. In a recent post, Professor Ingrid Wuerth takes issue with that conclusion, arguing that state practice and ICJ jurisprudence establish that allegations of jus cogens violations “do not generally deprive conduct of its ‘official’ nature for immunity purposes.”

As I have previously explained, all immunity doctrines involve three basic questions: (1) who is covered, (2) what is covered, and (3) whether there is an exception. For example, head of state immunity (a status-based immunity) generally applies only to sitting heads of state, heads of government and foreign ministers, covers all acts (even purely private ones), and is not subject to a jus cogens exception. See Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14). On the other hand, official act immunity (a conduct-based immunity) applies to lower level officials and to former officials, covers only acts taken in an official capacity, and may or may not be subject to a jus cogens exception.

In a recent article, Pinochet’s Legacy Reassessed, 106 Am. J. Int’l L. 731 (2012), Ingrid looks exhaustively at the third question in the context of official act immunity, concluding that state practice does not support a jus cogens exception to such immunity. That conclusion may or may not be correct—recent state practice including Samantar and the decision of the Swiss Federal Criminal Court in Nezzar may cast some doubt—but I will assume for present purposes that it is correct. Ingrid’s AJIL article did not, however, focus the same attention on the question of what constitutes an official act to which immunity attaches in the first place. Instead, she simply assumed that the second and third questions were the same. See id. at 732 n.9. In her recent post and in an interesting article on the Nezzar case, Ingrid answers the “what acts” question by adopting what one might call the “atributability theory” of official act immunity—that any act attributable to the state for purposes of state responsibility must be deemed an “official act” for purposes of conduct-based immunity. The problem is that there is no general and consistent practice of states supporting that position.

That is not to say that there is no authority at all in support of the attributability theory. The former rapporteur of the ILC’s project on the immunity of state officials from foreign jurisdiction adopted this theory in paragraph 24 of his Second Report. But his assertion has proved very controversial at the ILC and is flatly contradicted by another final ILC report, the 2001 Draft Articles on State Responsibility, article 58 of which expressly states that…

[Anthony J. Colangelo is Associate Professor of Law at SMU Dedman School of Law.]

I explained in a previous post why I think extending the presumption against extraterritoriality to causes of action crafted by forum law is strange. But there may be another (bigger?) problem with Kiobel’s application of the presumption to the Alien Tort Statute—namely, it appears to contradict Morrison v. National Australia Bank—the very case on which Kiobel overwhelmingly relies for both its reasoning and its result. As readers will recall, Morrison applied the presumption against extraterritoriality to the principal antifraud provision of the Securities Exchange Act.

As the Court in Kiobel itself, as well as many commentators (myself included) have observed, the presumption against extraterritoriality has traditionally applied only to what are generally referred to as “conduct-regulating” rules. These are rules that govern primary conduct and are easily classified under the category of jurisdiction to prescribe or prescriptive jurisdiction. Yet as the Court in Kiobel also explained, the ATS “does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” Indeed the Court framed the relevant question under the ATS as “whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.” In short, the conduct-regulating rule under the statute comes from international law. And since international law applies everywhere, the presumption against extraterritoriality has no application to conduct-regulating rules of decision under the ATS. The Court appeared to accept this view, noted that the ATS was “strictly jurisdictional,” and then decided to apply the presumption anyway. In so doing, the Court explained that “to rebut the presumption, the ATS would need to evince a clear indication of extraterritoriality,” which the ATS failed to do.

Here’s the problem.   (more…)

Baher Azmy, the legal director of the Center for Constitutional Rights (CCR), has flagged a very interesting ATS case that is due to be re-argued in light of the Supreme Court’s recent — and much discussed here at Opinio Juris — decision in Kiobel. Here is CCR’s description of the case, Al Shimari v. CACI:

Al Shimari  v. CACI was originally brought against L-3 Services Incorporated (formerly Titan Corporation), CACI International Inc., and Timothy Dugan, a former employee of CACI.  CACI and L-3 Services were the U.S. government contractors responsible for interrogation and translation services, respectively, at Abu Ghraib prison and other facilities in Iraq. L-3 Services and Timothy Dugan have since been dismissed as Defendants in the case. The complaint alleges that CACI directed and participated in illegal conduct, including torture, at the Abu Ghraib prison in Iraq where it was hired by the U.S. to provide interrogation services.   The four Plaintiffs had all been held at the “hard site” in Abu Ghraib prison.

The suit, brought under the Alien Tort Statute (ATS) and federal question jurisdiction, brings claims arising from violations of U.S. and international law including torture; cruel, inhuman, or degrading treatment; war crimes; assault and battery; sexual assault and battery; intentional infliction of emotional distress; negligent hiring and supervision; and negligent infliction of emotional distress. There are also civil conspiracy and aiding and abetting counts attached to most of these charges.  Through this action, Plaintiffs seek compensatory and punitive damages.

Among the heinous acts to which the four Plaintiffs were subjected at the hands of the Defendant and certain government co-conspirators were: electric shocks; repeated brutal beatings; sleep deprivation; sensory deprivation; forced nudity; stress positions; sexual assault; mock executions; humiliation; hooding; isolated detention; and prolonged hanging from the limbs.

All of the Plaintiffs are innocent Iraqis who were ultimately released without ever being charged with a crime. They all continue to suffer from physical and mental injuries caused by the torture and other abuse.

CCR makes a strong argument in the relevant brief that Al Shimari is precisely the rare ATS lawsuit that can survive Kiobel. First, CCR argues that Kiobel‘s presumption against extraterritorial application of the ATS should not even apply in Al Shimari, because the conduct in question occurred in Iraq during the US occupation, a period in which (quoting Rasul) the US had “complete jurisdiction and control” over Abu Ghraib (recall that the Coalition Provisional Authority had “all executive, legislative, and judicial authority” over Iraq at this time), making it effectively US territory. The fact that the US was functioning as the sovereign in Iraq at the time of the relevant conduct, CCR also points out, means that allowing the lawsuit to proceed would be unlikely to result in “international discord” between the US and Iraq.

Second, CCR argues that the relevant conduct does indeed “touch and concern” the US “with sufficient force to displace the presumption against extraterritorial application.” It notes that CACI is a US corporation headquartered in the US; that CACI’s immunity from Iraqi legal process made it subject to US law; and that the conduct in question was directed from the US. It also notes that the US’s control over Abu Ghraib is — or should be — relevant to the “touch and concern” analysis.

Third, and finally, CCR claims that ATS lawsuits involving war crimes and torture should always be deemed to satisfy Kiobel, especially where — as in Al Shimari — the perpetrators of those crimes are present in the US. It argues that the potential for “international discord” is minor in such lawsuits, because war crimes and torture are types of conduct that all states are obligated to prevent and punish.

I am skeptical that CCR’s third argument will convince many federal courts post-Kiobel. Its first and second arguments, however, seem very compelling. I hope our resident and extraterritorial experts on the ATS will weigh in.

[Ingrid Wuerth is Professor of Law and Director of International Legal Studies at Vanderbilt University Law School.  You can reach her at:  Ingrid [dot] wuerth [at] vanderbilt [dot] edu.]

This post examines two aspects of the Fourth Circuit’s 2012 decision on remand in Yousuf v. Samantar.  Samantar has petitioned the Supreme Court for certiorari again, and the initial briefing on the cert. petition should conclude soon.  Now is accordingly an opportune time to examine the Fourth Circuit’s decision, which has attracted excellent blog commentary from John Bellinger and Curt Bradley at Lawfare and Bill Dodge here.  A Swiss criminal case against Khaled Nezzar raising some related issues is discussed by Gabriella Citrone at EJILTalk! and by Evelyne Schmid at intlawgrrls.

This post disagrees with some of the foregoing commentary, but it also endeavors to point readers to at least some of the arguments and scholarship on all sides of the debate.  It will not introduce the Samantar case or the basics of immunity, which have been discussed by other bloggers and here. This post discusses the role of executive immunity determination in U.S. litigation and some aspects of conduct based immunity (ratione materiae) before foreign national courts for alleged jus cogens violations.

1.  The Executive Branch and Immunity

The Fourth Circuit reasoned that with respect to head of state immunity the executive branch is entitled to absolute deference, but it receives only “substantial weight” for its determinations on conduct-based immunity. 699 F.3d at 772-73.   The executive branch has argued here (as in other cases) that for both kinds of immunity its determinations are binding on the courts, based in part on admiralty cases from the 1940’s.  Affording the government the power to control the outcome of litigation in federal court is in tension with Article III and inconsistent with many foreign relations cases in which the government is given little or no deference, including another area of federal common law:  the act of state doctrine. One potential basis for power to make determinations binding on the federal courts, however, is the President’s constitutional power to “receive Ambassadors and other public Ministers” which includes the power to recognize foreign heads of state.   The Fourth Circuit concluded that the President’s recognition power includes the power to make dispositive determinations of status but not conduct based immunity.    The court’s decision on conduct-based immunity is very significant and clearly right, I believe, for reasons set out here.

The Fourth Circuit’s conclusion that the executive does control status-based determination is wrong, in my view, despite the arguments by Chimene Keitner and Lewis Yelin.  The recognition power is a weak basis upon which to rest a general power over immunity because they are two very different determinations.  Recognition includes…

[Jordan Wells is a third-year law student at New York University School of Law.]

The discussion up to this point naturally has centered on the “touch and concern” language of the majority opinion and what that opinion and the concurrences mean for ATS cases involving law of nations violations that occur abroad.  Relatively little analysis has focused on the original questions on which the Supreme Court granted certiorari—namely, whether corporations are immune from suit under the ATS and whether that immunity is an issue of subject matter jurisdiction or an inquiry going to the merits.  Remember, the Second Circuit dismissed the case sua sponte based on these two premises.  In contrast, the D.C., Seventh, Ninth, and Eleventh Circuits have rejected corporate immunity under the ATS.

While many commentators quickly observed that the Court did not explicitly rule on corporate liability, the majority opinion at least tacitly assumes the existence of corporate liability.  As specific evidence of the Court’s recognition of corporate liability, some have pointed to one of the majority opinion’s concluding lines:  “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”  This sentence was quoted with approval in Justice Breyer’s concurrence.  The statement that a corporation’s mere presence does not suffice suggests that the inverse proposition is also likely to be true:  A corporation that is more than merely present in the United States – say, one that is domiciled in the United States or one that authorizes or ratifies a law-of-nations violation – could present a different case.  It would be pointless to draw this distinction unless, under some circumstances, the ATS countenanced corporate liability.

Whatever one’s take on corporate liability following Kiobel, I want to suggest that it probably is not an issue of subject matter jurisdiction (SMJ).  Although the Second Circuit’s dismissal was for lack of SMJ, and although the Supreme Court “affirmed” the judgment of the Second Circuit, it explicitly did so on other grounds. If those other grounds were non-jurisdictional, instead going to the merits, then the Court necessarily found SMJ.  See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83.  The question thus is whether the Supreme Court’s affirmance constituted a dismissal for lack of SMJ, or instead was a dismissal on the merits.

Contextual clues in the Chief Justice’s opinion—in particular, the application of the presumption against extraterritoriality (PAE)—indicate that the Court went beyond the issue of SMJ and reached aspects of the merits.  The Court concluded that “[o]n these facts,” the PAE barred relief in this case.  There are certain limited circumstances in which a federal court may dismiss on the basis of threshold issues before ascertaining its SMJ, see, e.g., Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007) (dismissal on ground of forum non conveniens), Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) (dismissal on grounds of personal jurisdiction), but the Supreme Court generally has treated the application of the PAE as going to the merits.  See, e.g., Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (“[T]o ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a merits question.”); c.f. Burks v. Lasker, 441 U.S. 471, 476 (1979) (“[W]hether a cause of action exists is not a question of jurisdiction.”).  The Kiobel majority opinion does not depart from this understanding of the presumption’s application. See slip. op. at 5 (citing Morrison for proposition that “question of extraterritorial application was a ‘merits question,’ not a question of jurisdiction”).  The Court therefore appears to have dismissed the case on the merits, not for lack of SMJ.[1]

The fact that the ATS is “strictly jurisdictional” appears not to transform application of the PAE into a jurisdictional inquiry.  Although the Court does not use…

Peter beat me to the punch in commenting on Samuel Moyn’s interesting take on the ATS and Kiobel in Foreign Affairs, but I’m going to add a somewhat different point from Peter’s about what the body of ATS law has meant over the past few decades. I didn’t intervene in the earlier discussion about Kiobel because that discussion seemed to me properly focused mostly on the internal legal aspects of the decision – everything from jurisdiction to state courts, and much else besides.  I want to raise something external to Kiobel and the ATS as “law” – the distinction between international law and what (in various postings here and there) I’ve referred to as the “law of the hegemon.”

One way of looking at the ATS, including the body of cases built up over the years, is that it is “international law.”  Of course that’s not literally true; it is a domestic statute that refers to international law as the basis of some form of liability; violations of treaties or the law of nations.  But in a broader sense – the sense in which its supporters have long seen it – the ATS offers a domestic law vehicle by which to work out, interpret, express and, perhaps most important, make effective the requirements of international law.

This is surely the sense that, for example, Judge Jack Weinstein had when he opened the ATS hearing in the Agent Orange case ten years ago – this court sits, he said, in some fashion as an international court.  Sitting in the courtroom, it was entirely plain that he both took seriously and took real pleasure in seeing this District Court as sitting in judgment on the same types of crimes as raised at Nuremberg. There are several practical problems for this broader view, of course – how to figure out the relationship between the domestic law piece of the statute and the international law piece, for one.

Another, however, is that if this is supposed to be the working out in some broad sense of “international law” in American courts and using the tools available to American law, how does one keep the link between international law and its sources, processes, standards of interpretation, etc., as they exist in the international arena – and the application of this in an American law setting that has its own sources of authority, standards of interpretation, etc.  It’s fine to say that the ATS is the working out of international law in US courts, but international law is made in the international framework and evolves according to things that are different from and quite alien to the American legal system.  A telling example of the problem is found simply in the status of US court cases interpreting the ATS and, in the process, interpreting features of international law in ways that bear little relationship to how the international community might do it, now or in the future.  Yet in an American domestic law system, those distinctively US cases have greater authority than the international authorities.

One can say that this is precisely the problem of the American court system in dealing with human rights cases; it ought to recognize the international law sources and authorities as such, rather than privileging its own processes.  But this is hard, given that plaintiffs want simultaneously to reach to the special features of the US litigation system to achieve their aims; those special features of the US litigation system include many things, such as civil liability, corporate liability, etc., that don’t obviously exist in the international system.  It isn’t likely that one can pick and choose in the most favorable way – whether one is the plaintiff or the defendant – and if you go with the American system, you take its doctrine of sources, methods of interpretation, and much else besides, even as it applies to international law questions.  But those don’t match up very well with how the “international” actors in international law see those fundamental questions.  The questions are not substantive or procedural in the usual sense – they are, rather, the fundamental doctrines of authority, precedent, methods of interpretation.

A better way of seeing the law of the ATS, it has long seemed to me, is to treat it not as a particular state’s working out of international law in its courts, but rather a quite different category.  It seems to me best understood as the hegemonic power working out the law of the hegemon in ways that are intended to be somewhat parallel to “international law” on these issues.  There is a shared impulse rooted in morality, but what the hegemon does is within the terms of its own legal system.  It depends in large part upon the extent to which the hegemonic power is willing to allow the capital of its power to be exercised roughly to these ends – and the extent to which other important actors are willing to go along as a sort of rough way of getting international law actually enforced. (more…)

I want to take a moment to spruik (if you don’t know the word, look it up!) Jeffrey Kahn‘s new book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists, which has just been published by the University of Michigan Press. Here is the publisher’s description:

Today, when a single person can turn an airplane into a guided missile, no one objects to rigorous security before flying. But can the state simply declare some people too dangerous to travel, ever and anywhere? Does the Constitution protect a fundamental right to travel? Should the mode of travel (car, plane, or boat) or itinerary (domestic or international) make a constitutional difference? This book explores the legal and policy questions raised by government travel restrictions, from passports and rubber stamps to computerized terrorist watchlists.

In tracing the history and scope of U.S. travel regulations, Jeffrey Kahn begins with the fascinating story of Mrs. Ruth Shipley, a federal employee who almost single-handedly controlled access to passports during the Cold War. Kahn questions how far national security policies should go and whether the government should be able to declare some individuals simply too dangerous to travel. An expert on constitutional law, Kahn argues that U.S. citizens’ freedom to leave the country and return is a fundamental right, protected by the Constitution.

As an American who lives abroad but likes to see his family, I will avoid casting aspersions on terrorist watchlists. I’ll leave that to Jeff. Make sure to check out his book!

[Katherine Florey is Professor of Law at UC Davis]

I come late to this discussion.  Professors Alford and Whytock have adeptly explored the question of whether international human rights litigation might be reframed under state tort law.  To their observations, I would add the following: Because state choice-of-law methodology is incredibly diverse, it is difficult to make predictions or generalizations about the overall prospects for human rights cases in state court.  Regardless of what the general landscape might hold, however, it is easy to imagine scenarios in which foreign plaintiffs successfully pursue human rights claims arising abroad by invoking state tort law.  Consider a claim subject to the conflicts methodology used in California, known as comparative impairment.  Although comparative impairment is among the more nuanced and sophisticated of modern conflicts methodologies, it is also persistently biased toward forum law.  For example, before a California court will even consider the possibility of applying foreign law, the party advocating for the application of such law must demonstrate that foreign law materially differs from California law and that the foreign jurisdiction has an interest in having its law applied.  Given the near-universality of tort law principles of some sort, the first requirement, in particular, may prove problematic for defendants arguing that their conduct should be governed by a foreign jurisdiction’s laws.  Comparative impairment additionally favors forum law when it comes to damages.  Courts applying California conflicts methodology have consistently held that foreign jurisdictions have no interest in limiting damages as to non-resident defendants.  Even in some cases involving defendants who are residents of the damages-limiting jurisdiction, some courts have applied California law.

It is easy to imagine how these principles could converge to create appealing prospects for human rights plaintiffs seeking to bring state tort claims.  Indeed, recent cases like Bowoto v. Chevron, in which the court applied California law to claims by Nigerians for activities undertaken by Chevron in Nigeria, provide a ready template.

The possibility that some human rights litigation will be displaced into state court is thus very real, even if the extent of that displacement is difficult to predict.  And that leads me to a further observation.  To the extent that state courts increasingly operate concurrently with federal courts as forums for the litigation of cases with extraterritorial elements, the disparate treatment of extraterritoriality issues under state and federal approaches becomes ever more problematic. And Kiobel seems likely to compound those problems, not only because it pushes another category of foreign-squared or -cubed cases into state court, but because it takes the federal law of extraterritoriality in a direction increasingly incompatible with state conflicts approaches.

What do I mean by this?  I see two main ways in which Kiobel’s reasoning is likely to impede useful dialogue between federal and state approaches.  The first is the meaning, and relevance, of territory in assessing the scope of a sovereign’s prescriptive jurisdiction.  Everything about Justice Roberts’s opinion reflects a narrow, stubbornly physical notion of territoriality.  He seeks to crisply cordon off from the ATS’s reach “conduct occurring within the territorial jurisdiction of another sovereign” – a category that (because it assumes a definition of territorial jurisdiction based on the physical location of conduct) seems both question-begging and potentially troublesome to apply in practice.  And his odd final formulation – that the presumption might be “displace[d]” as to claims that “touch and concern the territory of the United States” – suggests an even more constrained view of the relationship between law and territory.  Justice Roberts’s territoriality is one not of a sovereign, but of a landowner.  By contrast, modern state conflicts approaches, in reaction (perhaps overreaction) to the rigidly territorial approach of the First Restatement, have tended to sideline territoriality entirely.  Famously, modern conflicts approaches tend to privilege the parties’ domiciles over the site of relevant events; even when location of events does come into play, the place of both conduct and injury may frequently be relevant.  But even more broadly, modern conflicts doctrine speaks in terms of relationships and interests.  It has done more than reject territorial formalism; it has made it largely irrelevant.

Second, and more practically, Kiobel cements the sense that the Court has conclusively abandoned an approach to extraterritoriality grounded in comity and international norms in favor of one rooted entirely in statutory interpretation.  Whatever might be said for or against this shift more generally, it virtually guarantees that state courts applying predominantly common law will find little or nothing in the Court’s recent case law to guide them.  This is not for lack of interest or concern on the part of state courts, which have often earnestly attempted to follow the Court’s extraterritoriality approach to the extent that they can.  In the wake of Morrison, some state courts have interpreted state statutory law to be consistent with its federal models; some state courts, for example, have limited the extraterritorial application of state RICO statutes in light of federal precedents doing the same.  But Morrison or Kiobel shed precious little light on the question of how far state law should extend when no legislative intent exists about which to make presumptions.

All of this means that state conflicts doctrine and principles governing the extraterritorial reach of federal statutes are likely to drift farther apart.  Further, it means that state courts are bereft of guidance at a time when they are increasingly likely to need it.  State choice-of-law doctrine, developed to deal with trivial interstate differences over guest statutes or interspousal immunity, seems increasingly provincial when it is pressed into service for weighty matters of corporate responsibility and human rights.  It is possible that, for the moment, personal jurisdiction and forum non conveniens issues will forestall a rush of foreign-cubed plaintiffs into state courts.  But if not, where do we go from there?