Accepting Sosa's Invitation: Did Congress Expand the Subject Matter Jurisdiction of the Alien Tort Statute in the Military Commissions Act?

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A. Incorporating Piracy by Express Reference to International Law

In 1819, Congress reacted to Palmer by enacting a new statute that attempted to circumvent the jurisdictional difficulties the Court had identified in Section 8 of the Crimes Act by conforming the definition of piracy to the existing contours of customary international law. In this way, Congress ensured that it legislated to the full extent of its prescriptive authority. Reverting to the practice that had informed the passage of the ATS, Congress thus made it a capital offense for "any person or persons whatsoever ... on the high seas, [to] commit the crime of piracy, as defined by the law of nations." (176)

The statute was soon put to the test and survived a due process challenge. In United States v. Smith, (177) the defendant was a crew member on a privateer that had been duly commissioned by the government of Buenos Ayres, which was engaged in a civil war with Spain. (178) While the ship was anchored in port, the crew mutinied, confined the officer on the ship, and forcibly seized another privateer docked nearby. The crew then "proceeded to sea on a cruize [sic], without any documents or commission," at which point they attacked and plundered a Spanish merchant vessel. (179) The defendant was later arrested and charged under the 1819 Act. On appeal, the question before the Court was the amenability of the defendant to the jurisdiction of a U.S. court. The defendant was represented by Daniel Webster, who argued that the statute was unconstitutional, because "Congress is bound to define [the crime of piracy] in terms, and is not at liberty to leave it to be ascertained by judicial interpretation," which he suggested would violate the injunction against the creation of common law crimes. (180)

Justice Story., writing for the Court, found that in proscribing piracy by express reference to the law of nations, Congress had defined the offense with sufficient clarity to put the defendant on notice that his actions were subject to the criminal jurisdiction of a U.S. court. The analysis begins by rejecting the linguistic theory, inherent in Webster's argument, which, if accepted without qualification, would equally invalidate the municipal crimes delineated in Section 8 of the Crimes Act. When Congress enacts a penal statute of any sort, Story observed, "there is nothing which restricts it to a mere logical enumeration in detail of all the facts constituting the offense," as opposed to referring to "a term of a known and determinate meaning" adapted from an external source. (181) For example, in Section 8, Congress proscribed piracy to include "robbery" and "murder" without further elaboration, but these are terms of art defined by the amorphous collection of statutes and judicial decisions that comprise the common law, and "by such a reference, the definitions are necessarily included, as much as if they stood in the text of the act." (182)

Indeed, if this sort of definitional backstop is impermissible, Story reasons, legislation would essentially become impossible, because we would find ourselves stuck in an infinite semantic regress, with each new term requiring yet further clarification. (183) For purposes of the Define and Punish Clause, then, Congress may codify offenses against the law of nations "either by reference to crimes having a technical name, or by enumerating the acts in detail." (184)

With that interpretive principle in place, Story turns to the merits of whether the law of nations, in fact, defined the offense of piracy "with reasonable certainty" for purposes of a federal criminal prosecution. (185) To ascertain the definition of piracy in customary international law, he consults what has since become the standard menu of sources, namely "the works of jurists," "the general usage and practice of nations," and "judicial decisions recognizing and enforcing that law." (186) After reviewing numerous such sources, including a seventeen-page footnote comprised primarily of citations to scholarly opinions, Story concludes that "[t] here is scarcely a writer on the law of nations, who does not allude to piracy as a crime of a settled and determinate nature .... [R]obbery or forcible depredations upon the sea, animo furandi, is piracy. (187)

On this view, when a court enforces the 1819 Act, it is not, as Webster had suggested, exercising its discretion to invoke a common law jurisdiction over the offense of piracy. Instead, the Act confers jurisdiction over the offense and then directs the court to a determinate body of law to establish the meaning of its terms. This was understood to be an objective inquiry, in which the court endeavored to "find" rather than "create" the substantive law, in precisely the same way that a district court discovers the substantive norms enforceable in ATS litigation. Accordingly, the Court concluded that Congress had "sufficiently and constitutionally" codified general piracy in the 1819 Act, because the customary law of nations defined the offense with sufficient clarity to satisfy due process concerns. (188) Finally, as applied, the conduct of the defendant and his associates "completely fit the [foregoing] definition," because they had plundered the victim merchant vessel without "protection from the flag or commission of any government" and therefore could not claim to be lawful belligerents. (189)

B. The Legal Status of the Military Commission

Aside from its significance for ATS litigation, the relevance of Smith's construction of the 1819 piracy statute is that--prior to the passage of the Military Commissions Act in 2006--it might fairly be characterized as a methodological template for the adjudication of war crimes. A history of the military, commission as an institution is beyond the scope of this essay, (190) but it suffices to note that, in U.S. military practice, these tribunals have traditionally been regarded as "common law war courts." (191) Although the term was invented by Major General Winfield Scott during the Mexican War in 1847, (192) the legal parameters of the military commission as we know it today were established during the Civil War period. The first major codification of the law of land warfare, commonly known as the Lieber Code, distinguished between courts-martial, which have jurisdiction over statutory military offenses under the Articles of War, and "military offenses which do not come within the statute," which therefore "must be tried and punished under the common law of war.., by military commissions." (193)

On this point, the Lieber Code expressly built upon the practice already introduced by General-in-Chief of the Union Army, Henry Halleck, who supervised the formation of the Code and should be credited as the intellectual godfather of the modern military commission. (194) In his previous command, General Halleck had sought and received President Lincoln's authorization to declare martial law in the Department of the Missouri, (195) which was being wrecked with internecine violence rooted in deep-seated regional conflicts that predated the war. (196) Shortly thereafter, Halleck instituted a system of hybrid military commissions, which had jurisdiction over two categories of offense: (1) ordinary domestic crimes that could not be tried in the local courts due to the exigency caused by the war, and (2) offenses against "the general code of war" committed by the civilian population, which were neither "triable ... by courts-martial" nor "within the jurisdiction of any existing civil court." (197)

An accomplished international law scholar, Halleck was sensitive to the distinction between these two categories of offense. As he subsequently wrote in the second edition of his treatise--which was intended to be a textbook for the military academies at West Point and Annapolis--insofar as such tribunals prosecuted violations of the common law of war, they "must be governed and guided by the principles of universal public jurisprudence." (198) Moreover, Halleck was careful not to conflate the mere status of being an unprivileged belligerent with the commission of war crimes. "Private citizens who commit acts of violence," he wrote, "without the authority or sanction of their own government" are not considered "enemies, legitimately in arms," and thus are not entitled "to plead the laws of war in ... justification" of their actions. (199) In the absence of combatant immunity, it follows that "when captured, they are not treated as prisoners of war, but as criminals subject to the punishment due their crimes." (200) Hence, the "taking of property by such forces ... is not a belligerent act authorized by the law of nations, but a robbery," and "the killing of an enemy by such forces ... is not an act of war, but a murder," unless the defendant acted in serf-defense. (201)

An unprivileged belligerent might also be guilty, of a war crime, to be sure, but each case had to be judged on its own merits. In this regard, the Lieber Code contains an intriguing reference comparing unprivileged belligerents to pirates. (202) As an expert on the law of the sea, the analogy surely would not have escaped Halleck's meticulous attention. (203) In context, this provision was understood to mean that unprivileged belligerency in land warfare--like privateering without a commission on the high seas--merely removed the cloak of combatant immunity, thereby maintaining the distinction between domestic crimes and violations of the law of war." (204)

When the Lieber Code was revised in 1914, the drafters retained the reference to piracy without change, but added a separate paragraph stating that unprivileged belligerents are "liable to punishment for [their] hostile acts as war criminals." (205) Some commentators have uncritically read this to mean that any hostile act committed by an unprivileged belligerent in the context of an armed conflict ipso facto constitutes a "war crime," but this is by no means an obvious inference. To say that a person is "liable" for a particular act may mean that he is "legally responsible," but can also mean that he is simply "exposed or subject to a given contingency." (206) The only way to reconcile these two provisions is to interpret the term "liable" in the latter sense of being "exposed" or "subject" to war crimes charges, not that every hostile act by an unprivileged belligerent invariably constitutes a war crime. Indeed, if a defendant commits an actual war crime, his belligerent status is quite beside the point. (207)

Accordingly, while closely analogous to a court martial in both structure and procedure, (208) the law-of-war commission was distinguished from a court martial, on the one hand, and a martial law or occupation tribunal, on the other hand, by the scope of its subject matter jurisdiction. The jurisdiction of courts-martial was limited to statutory offenses set forth in the Articles of War, which governed the conduct of U.S. service members and certain classes of persons associated with the armed forces, whereas martial law or occupation tribunals were authorized to try ordinary civil and criminal cases in the absence of functioning local judicial institutions. (209) In contrast, a law-of-war commission was established by a commanding officer, typically in an active theater of military operations, for the purpose of trying persons accused of committing acts of illegitimate warfare in violation of customary international law, which supplied the substantive rules of decision. (210)

It is important to emphasize that this type of tribunal is not, strictly speaking, a "court" in the familiar Article III meaning of the term. (211) Instead, the essential purpose of this type of tribunal is to assist the convening authority to maintain military discipline on the battlefield by making factual findings and recommending a disposition concerning alleged violations of the law of war. The convening authority is authorized, in his discretion, to approve, disapprove, or modify the findings and decision of the panel members, with the sole proviso that he cannot increase the sentence beyond the panel's recommendation. (212) In this sense, the commission functions as "an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the President as Commander-in-Chief in war." (213)

Yet, like any exercise of the war powers, Congress's constitutional authority was understood to be constrained by the law of nations. "Congress can declare war," the Attorney General opined in 1865, but

   When war is declared, it must be, under the Constitution,
   carried on according to the known laws and usages of war
   amongst civilized nations. Under the power to define those
   laws, Congress cannot abrogate them or authorize their infraction.
   The Constitution does not permit this Government to
   prosecute a war as an uncivilized and barbarous people .... The
   maxim inter arma silent leges is never wholly true. (214)

Within the constraints of the Define and Punish Clause, then, Congress was presumed to have the authority to "prescribe how all such tribunals are to be constituted, what shall be their jurisdiction, and mode of procedure," but in any event, a law-of-war commission could only "take cognizance of such offenses as the laws of war permit." (215) As a matter of longstanding practice, Congress was content to legislate at the margins, without attempting to prescribe the substantive content of such offenses. (216) Instead, it delegated to military justice authorities the responsibility of supervising the application of the law in a common law fashion, consistent with their unique professional imperatives. (217)

C. Ex Parte Quirin

This was the state of the law in June of 1942, when eight German soldiers were surreptitiously landed by submarine on the beaches near Amagansett, Long Island and Jacksonville, Florida, in possession of a large amount of U.S. currency and a cache of high-powered explosives, fuses and timing devices. (218) Once on the beach, the saboteurs shed their military, uniforms and donned civilian clothing, buried their weapons in the sand, and scattered into the community with plans to reconnoiter potential targets. Having attended a special training camp near Berlin, their mission was to sabotage the U.S. war effort by destroying key transportation infrastructure and manufacturing facilities. In addition, the saboteurs were instructed to attack civilian persons and property for propaganda purposes, including "scattered nuisance bombings" of railroad stations and Jewish-owned department stores, "timed to create the greatest possible panic." (219) Finally, they were given "a concise, but thorough, indoctrination in [the use of] secret inks," in order to relay to their German handlers "observations ... which would help in planning future sabotage groups" and "the location of new war plants. (220)

Within a matter of days after the landing, two of the saboteurs, George Dasch and Ernest Burger, concluded that the mission was doomed to failure and decided to save themselves by revealing the plot to U.S. authorities. Convinced that he would be greeted as a hero, Dasch traveled to Washington, DC and turned himself in to the FBI, who subjected him to an extensive debriefing. Armed with this information, FBI agents were able to apprehend the remaining saboteurs before their plans could be executed. (221)

The government had initially intended to try the saboteurs in federal court, but President Roosevelt rejected this option, because he was determined to see them executed and there were serious doubts about the government's ability to secure a conviction on a capital charge. (222)

On July 2, 1942, Roosevelt thus issued a proclamation, based on his authority as Commander-in-Chief and "the statutes of the United States," directing that "all enemies" who entered U.S. territory "during a time of war" for the purpose of committing "sabotage, espionage or other hostile or warlike acts ... shall be subject to the law of war and to the jurisdiction of military tribunals." (223) More controversially, he attempted to insulate the proceedings from judicial review altogether, declaring that "such persons shall not be privileged to seek any remedy or maintain any proceeding.., in the courts of the United States." (224)

On the same day, President Roosevelt issued a military order establishing a commission, comprised of seven Army generals, to try the eight saboteurs "for offenses against the law of war and the Articles of War." (225) Although the order purported to direct the commission to conduct the trial in a manner "consistent with the powers of military commissions under the Articles of War," it departed sharply from the procedural requirements of the Articles and the Manual for Courts-Martial. (226) In particular, the order authorized the panel, in its discretion, to admit any evidence it deemed to "have probative value to a reasonable man," and to impose a death sentence by a non-unanimous verdict. (227) Moreover, the record of trial would not be reviewed in the ordinary course by the Judge Advocate General's office, which had been assigned to assist the Attorney General prosecute the case, but instead would be forwarded directly to Roosevelt for final action. (228)

The next day, a military attorney signed a charging document alleging that the defendants had committed four crimes, each of which was supported by the same factual allegations: (1) a catch-all count charging a violation of the common law of war, (2) aiding the enemy in violation of Article 81, (3) spying in violation of Article 82, and (4) conspiring to commit the foregoing offenses. (229) The trial commenced the following week under strict security in a former lecture hall on the fifth floor of the Justice Department building in Washington, D.C., with heavy black curtains draped over the windows. (230)

Meanwhile, the defendants' appointed counsel lodged a petition for habeas corpus in the Supreme Court, supported by a seventy-two-page brief that challenged virtually every aspect of the proceedings, including the personal and subject matter jurisdiction of the commission and the procedural irregularities licensed by the President's order. (231) In particular, they argued that the President was without constitutional or statutory authority to establish a military tribunal to prosecute violations of customary international law, insisting that this amounted to penalizing common law crimes. With distinct echoes of Daniel Webster's argument in Smith, they wrote that "the alleged Law of War which is asserted by the prosecution is a species of international law analogous to common law. No principle is better settled than the principle that there is no common law crime against the United States.... Each crime must be covered by a specific criminal statute." (232)

On July 31, 1942, after hearing some nine hours of oral argument over the course of two days, the Court issued a terse per curiam opinion announcing that the commission had been lawfully constituted, that it had jurisdiction over the charged offenses, and that the defendants had failed to show that their detention was unlawful. (233) A full opinion explaining the basis of its decision would follow some three months later, albeit not until after six of the saboteurs had already been executed. (234) This uncomfortable fact prompted the Court to base its decision on the narrowest possible grounds, since it seemed imperative from an institutional perspective to issue a unanimous opinion that avoided casting doubt on the validity of its previous judgment. (235)

While the Court agreed with the defendants' initial contention that their status as enemy aliens did not preclude them from seeking judicial review of the legality of their detention, it flatly rejected the claim that the commission lacked "jurisdiction to try the charge preferred against [them]" for violating the law of war, merely because the elements of the offense weren't specifically delineated in a statute. (236) But in order to answer the defendants' argument that they were being illegally prosecuted for an impermissibly vague common law offense, the Court felt compelled to find a statutory basis for the commission's assertion of subject matter jurisdiction over this charge.

The most obvious solution would have been to rely instead on Charges II and III, which alleged domestic military offenses that were expressly subject to trial by military commission. The stipulated record certainly seemed to support those charges. After all, the defendants had confessed to being agents of the armed forces of Nazi Germany, against whom the United States was engaged in a Congressionally-declared war. In that capacity, they had secretly crossed into the sovereign territory of the United States, disguised in civilian clothing, with the specific intent to destroy strategic military assets, convey intelligence to the enemy, and attack protected persons and property as a form of psychological warfare. Although they failed to bring their plans to fruition, this was by any reasonable measure an adequate factual foundation to allege a culpable attempt to violate Article 82. (237) Similarly, by entering onto U.S. soil, the defendants had incurred a temporary duty of allegiance to the United States and were therefore amenable to trial for aiding the enemy, as codified in Article 81. (238)

This straightforward analysis was not a practical option, however, because of the unusual posture of the case. Despite having already announced its decision, several justices harbored serious doubts about the legality of the President's order, insofar as it departed from the procedural safeguards of the Articles of War. The commission's jurisdiction thus could not be said to rest on a violation of the punitive Articles as such, because that would arguably place the Court in the untenable position of having permitted the execution of six men in derogation of their statutory due process rights. As Chief Justice Stone wrote to Justice Frankfurter, it would "seem almost brutal to announce this ground of decision for the first time after six of the petitioners have been executed and it is too late for them to raise the question if in fact the articles as they construe them have been violated." (239) Moreover, Dasch and Burger were still very much alive, and Stone worried that they might raise the issue in a collateral proceeding, which "would not place the present Court in a very, happy light." (240) To avoid this "unhappy" result, Stone's opinion for the Court focused entirely on the defendants' amenability to trial under the customary law of war as alleged in Charge I. (241)

Although Stone's reasoning has been subjected to withering criticism, the interpretive key to understanding the opinion is its direct analogy between the Articles of War and the 1819 piracy statute upheld in Smith. When placed in historical context, this part of the analysis is actually more robust than many critics have acknowledged. As Stone correctly observes, the existing Articles made no less than half a dozen references to "the military commission" as an institution, which as a matter of established practice was "appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial." (242) And when Congress undertook the first systematic overhaul of the Articles in 1916, it was careful to preserve, on the recommendation of the Judge Advocate General, the "concurrent jurisdiction [of military commissions] in respect of offenders or offenses that ... by the law of war may be triable by such ... tribunals." (243)

To be sure, the substantive content of the law of war is a separate question. But taken together, these statutory references may plausibly be read as evincing a congressional intention to vest the military commission, "within constitutional limitations" prescribed by the Define and Punish Clause, with subject matter jurisdiction "to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals." (244) Indeed, to find otherwise would have been a wholesale repudiation of nearly a century of experience that had accrued within the military justice establishment, which Congress deliberately allowed to develop over "a long course of practical administrative construction" under the supervision of the Judge Advocate General. (245)

This conclusion is reinforced when the decision is viewed through the prism of the Court's piracy jurisprudence. The mere fact that Congress had not seen fit to "mark [the] precise boundaries ... which [the law of war] condemns" was not a compelling objection, Stone reasoned, because Congress had sanctioned such tribunals for the purpose of applying a body of customary international norms that was sufficiently …