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 . …