SMALL v. UNITED STATES

Petitioner Small was convicted in a Japanese Court of trying to smuggle firearms and ammunition into that country. He served five years in prison and then returned to the United States, where he bought a gun. Federal authorities subsequently charged Small under 18 U.S.C. § 922(g)(1), which forbids “any person …convicted in any court … of a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm.” (Emphasis added.) Small pleaded guilty while reserving the right to challenge his conviction on the ground that his earlier conviction, being foreign, fell outside §922(g)(1)’s scope. The Federal District Court and the Third Circuit rejected this argument.

Held: Section 922(g)(1)’s phrase “convicted in any court” encompasses only domestic, not foreign, convictions. Pp. 2—9.

    (a) In considering the scope of the phrase “convicted in any court” it is appropriate to assume that Congress had domestic concerns in mind. This assumption is similar to the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application, see, e.g., Foley Bros., Inc.v. Filardo, 336 U.S. 281, 285. The phrase “convicted in any court” describes one necessary portion of the “gun possession” activity that is prohibited as a matter of domestic law. Moreover, because foreign convictions may include convictions for conduct that domestic laws would permit, e.g., for engaging in economic conduct that our society might encourage, convictions from a legal system that are inconsistent with American understanding of fairness, and convictions for conduct that domestic law punishes far less severely, the key statutory phrase “convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” somewhat less reliably identifies dangerous individuals for the purposes of U.S. law where foreign convictions, rather than domestic convictions, are at issue. In addition, it is difficult to read the statute as asking judges or prosecutors to refine its definitional distinctions where foreign convictions are at issue. To somehow weed out inappropriate foreign convictions that meet the statutory definition is not consistent with the statute’s language; it is not easy for those not versed in foreign laws to accomplish; and it would leave those previously convicted in a foreign court (say of economic crimes) uncertain about their legal obligations. These considerations provide a convincing basis for applying the ordinary assumption about the reach of domestically oriented statutes here. Thus, the Court assumes a congressional intent that the phrase “convicted in any court” applies domestically, not extraterritorially, unless the statutory language, context, history, or purpose shows the contrary. Pp. 2—5.

    (b) There is no convincing indication to the contrary here. The statute’s language suggests no intent to reach beyond domestic convictions. To the contrary, if read to include foreign convictions, the statute’s language creates anomalies. For example, in creating an exception allowing gun possession despite a conviction for an antitrust or business regulatory crime, §921(a)(20)(A) speaks of “Federal or State” antitrust or regulatory offenses. If the phrase “convicted in any court” generally refers only to domestic convictions, this language causes no problem. But if the phrase includes foreign convictions, the words “Federal or State” prevent the exception from applying where a foreign antitrust or regulatory conviction is at issue. Such illustrative examples suggest that Congress did not consider whether the generic phrase “convicted in any court” applies to foreign convictions. Moreover, the statute’s legislative history indicates no intent to reach beyond domestic convictions. Although the statutory purpose of keeping guns from those likely to become a threat to society does offer some support for reading §922(g)(1) to include foreign convictions, the likelihood that Congress, at best, paid no attention to the matter is reinforced by the empirical fact that,

according to the Government, since 1968, there have fewer than a dozen instances in which such a foreign conviction has served as a predicate for a felon-in-possession prosecution. Pp. 5—8.

333 F.3d 425, reversed and remanded.

    Breyer, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia and Kennedy, JJ., joined. Rehnquist, C.  J., took no part in the decision of the case.

Kiobel v. Royal Dutch Petroleum

Petitioners, Nigerian nationals residing in the United States, filed suit in federal court under the Alien

Tort Statute, alleging that respondents—certain Dutch, British, and Nigerian corporations—aided and

abetted the Nigerian Government in committing violations of the law of nations in Nigeria. The ATS

provides that “[t]he 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.” 28 U. S. C. §1350.

The District Court dismissed several of petitioners’ claims, but on interlocutory appeal, the Second

Circuit dismissed the entire complaint, reasoning that the law of nations does not recognize corporate

liability. This Court granted certiorari, and ordered supplemental briefing on whether and under what

circumstances courts may recognize a cause of action under the ATS, for violations of the law of

nations occurring within the territory of a sovereign other than the United States.

Held: The presumption against extraterritoriality applies to claims under the ATS, and nothing in the

statute rebuts that presumption. Pp. 3–14.

     (a) Passed as part of the Judiciary Act of 1789, the ATS is a jurisdictional statute that creates no

causes of action. It permits federal courts to “recognize private claims [for a modest number of

international law violations] under federal common law.” Sosa v. Alvarez-Machain, 542 U. S. 692 . In

contending that a claim under the ATS does not reach conduct occurring in a foreign sovereign’s

territory, respondents rely on the presumption against extraterritorial application, which provides that

“[w]hen a statute gives no clear indication of an extraterritorial application, it has none,” Morrison v.

National Australia Bank Ltd., 561 U. S. ___, ___. The presumption “serves to protect against

unintended clashes between our laws and those of other nations which could result in international

discord.” EEOC v. Arabian American Oil Co., 499 U. S. 244 . It is typically applied to discern whether

an Act of Congress regulating conduct applies abroad, see, e.g., id., at 246, but its underlying

principles similarly constrain courts when considering causes of action that may be brought under the

ATS. Indeed, the danger of unwarranted judicial interference in the conduct of foreign policy is

magnified in this context, where the question is not what Congress has done but what courts may do.

These foreign policy concerns are not diminished by the fact that Sosa limited federal courts to

recognizing causes of action only for alleged violations of international law norms that are “ ‘specific,

universal, and obligatory,” 542 U. S., at 732. Pp. 3–6.

     (b) The presumption is not rebutted by the text, history, or purposes of the ATS. Nothing in the

ATS’s text evinces a clear indication of extraterritorial reach. Violations of the law of nations affecting

aliens can occur either within or outside the United States. And generic terms, like “any” in the phrase

“any civil action,” do not rebut the presumption against extraterritoriality. See, e.g., Morrison, supra, at

___. Petitioners also rely on the common-law “transitory torts” doctrine, but that doctrine is inapposite

here; as the Court has explained, “the only justification for allowing a party to recover when the cause

of action arose in another civilized jurisdiction is a well-founded belief that it was a cause of action in

that place,” Cuba R. Co. v. Crosby, 222 U. S. 473 . The question under Sosa is not whether a federal

court has jurisdiction to entertain a cause of action provided by foreign or even international law. The

question is instead whether the court has authority to recognize a cause of action under U. S. law to

enforce a norm of international law. That question is not answered by the mere fact that the ATS

mentions torts.

     The historical background against which the ATS was enacted also does not overcome the

presumption. When the ATS was passed, “three principal offenses against the law of nations” had

been identified by Blackstone: violation of safe conducts, infringement of the rights of ambassadors,

and piracy. Sosa, supra, at 723, 724. Prominent contemporary examples of the first two offenses—

immediately before and after passage of the ATS—provide no support for the proposition that

Congress expected causes of action to be brought under the statute for violations of the law of

nations occurring abroad. And although the offense of piracy normally occurs on the high seas,

beyond the territorial jurisdiction of the United States or any other country, applying U. S. law to

pirates does not typically impose the sovereign will of the United States onto conduct occurring within

the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy

consequences. A 1795 opinion of Attorney General William Bradford regarding the conduct of U. S.

citizens on both the high seas and a foreign shore is at best ambiguous about the ATS’s

extraterritorial application; it does not suffice to counter the weighty concerns underlying the

presumption against extraterritoriality. Finally, there is no indication that the ATS was passed to make

the United States a uniquely hospitable forum for the enforcement of international norms. Pp. 6–14.

621 F. 3d 111, affirmed.

     Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito,

JJ., joined. Kennedy, J., filed a concurring opinion. Alito, J., filed a concurring opinion, in which

Thomas, J., joined. Breyer, J., filed an opinion concurring in the judgment, in which Ginsburg,

Sotomayor, and Kagan, JJ., joined.

Boumediene v. Bush Case Brief

Facts: In 2002, Lakhdar Boumediene and five other Algerian natives were apprehended by Bosnian police based upon the suspicions of U.S. intelligence officers that they were involved in the bombings of a U.S. embassy there.  The U.S. was given custody of the men, who were then immediately classified as enemy combatants and detained at the naval base at Guantanamo Bay.  Boumediene filed a petition for writ of habeas corpus arguing that the U.S. government violated his Due Process Clause rights.  The U.S. District Court dismissed Boumediene’s claims on the grounds that he was not a U.S. citizen, and he was detained at an extra-territorial base, thus not entitling him to the same constitutional protections afforded to someone on U.S. soil. The U.S. Court of Appeals affirmed the ruling, but the U.S.S.C. reversed the ruling in Rasul v. Bush and indicated that foreign nationals, even if they are enemy combatants, have at least the right to challenge their enemy combatant status in court.  In kind, Congress passed the Military Commissions Act which stripped federal courts of the authority to hear habeas corpus cases from detainees who have been classified as enemy combatants as a means to apparently circumvent the Supreme Court ruling.The detainees applied to the D.C. Circuit Court for a second time, arguing that Congress could not in essence retroactively change the rules of the game, and argued that even if it could, the Suspension Clause which states that, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it,” prevented the Congress from infringing on their rights because there was rebellion or invasion.  Since the MCA explicitly stated that it applied to all cases, with no exceptions, the Circuit Court affirmed the government’s right to legislate in such a way. The Court ruled that the Suspension Clause was more of a historical relic that only really applied to the circumstances surrounding the political and national security climate in 1789; at that time, it was believed the intent of the amendment was not to protect foreign nationals but citizens.  While it initially declined to hear the case, the U.S. Supreme Court eventually decided to hear arguments regarding Boumediene’s claims in order to answer the question regarding foreign nationals and the right to due process in the context of detainment in extra-territorial bases.

Issue:  Several legal questions were presented.  They included the following:Should courts interpret the MCA of 2006 to mean that they no longer have any jurisdiction over habeas corpus petitions filed by foreign nationals detained at extra-territorial bases, in this case Guantanamo Bay? If the answer to the first question is in the affirmative, is the MCA of 2006 in violation of the Constitution’s Suspension Clause?

Are Guantanamo Bay detainees entitled to Fifth Amendment protections without due process of the law and consideration of the Geneva Conventions? Do detainees have to invoke judicial review provision first or can they challenge them on other merits before invoking an actual review?

Holding: The Supreme Court ruled affirmatively for all of the questions.Majority Opinion Reasoning:  The Court reasoned that prisoners, even enemy combatants, have a right to habeas corpus.  The Court reasoned that while Guantanamo Bay is a base located in Cuba, it is still territorially under the control of the United States government; therefore, the Constitution and all of its protections still apply, for it is essentially American soil.Dissenting Opinion:  Chief Justice Roberts and Associate Justice Scalia both dissented, simply asserting that foreign nationals, whether named enemy combatants or given another moniker, have never been afforded the right to habeas corpus as a matter of historical record, and thus there was no reason why it should be believed that in 2006 the contextual situation had changed.Conclusion:  This case was significant because it enshrined the precedent that even enemy combatants have habeas corpus rights and that they cannot indefinitely be denied due process under the law simply because they are not citizens.  It should be noted however, that the federal government nevertheless maintains a considerable amount of latitude regarding practices concerning

enemy detainment in extra-territorial settings, and practices such as rendition further complicate the issue.

Brief Fact Summary. Aliens classified as enemy combatants in custody at Guantanamo Bay request

the court to determine whether they have the right to file a writ for habeas corpus, which is a

constitutional privilege not revoked except if the Suspension Clause is in effect.

Synopsis of Rule of Law. Aliens who are enemy combatants have the right to habeas corpus under

the constitution, and the alternative procedures substituted by Congress were not sufficient or

effective.

Facts. Boumediene was one of several aliens captured at various battlefields over the world, from

Afghanistan to Bosnia or Gambia, who were then held at Guantanamo Bay Naval Station. None of

them was a citizen of a nation at war with the U.S. They were separately examined before a

Combatant Status Review Tribunal (CSRT), which are military boards set up in accordance with the

decision in Rasul, 542 U.S. 466 (2004), to decide whether they could be held in lawful custody. Each

was decided by the board to be an enemy combatant, and sought habeas corpus in the District Court

for the District of Columbia.

Issue. Do aliens who are enemy combatants have the right to habeas corpus under the constitution,

and do the alternative procedures substituted by Congress not act as sufficient or effective options?

Held. (Kennedy, J.) Yes. Aliens who are enemy combatants have the right to habeas corpus under the constitution, and the alternative procedures substituted by Congress were not sufficient or effective. The framers of the constitution believed that it was a basic tenet of liberty to enjoy freedom from unlawful restraint, and the writ of habeas corpus was a provision meant to make this freedom secure. The Suspension Clause (Art. I, Section 9, cl. 2) protects this as well, providing that it may be suspended only in cases of a threat to public safety as in rebellion or invasion. While the geographical extent to which the clause covers this writ is not clear, at least it is obvious that the writ as it existed at the time of the original drafting and ratification of the constitution was protected. The Government (P) pleads that the U.S. does not have sovereignty over the place of incarceration, namely, Guantanamo Bay, and therefore the petitioners do not have rights under the Clause. However, it is clear that Guanatanamo Bay has been under U.S. control for more than a hundred years. In order to decide whether it is covered by the Clause, three factors must be considered: (1) the citizenship and status of the detainee, and whether the determination of that status was through a valid and sufficient process; (2)  the type of place where first apprehension and later detention occurred; (3) the practical hindrances in determining whether the prisoner has a right to the writ. In the first place, the petitioners are aliens, arrested outside the U.S. Secondly, the detention center is under the complete control of the U.S. and is under its jurisdiction. Thirdly, the costs involved are not such as to rule out the habeas proceedings automatically. Thus the conclusion is that the Clause is effective at Guantanamo Bay, and Congress must act accordingly. The Military Commission Act of 2006 is not and was not intended to be a substitute of habeas corpus, and thus the petitioners are entitled to dispute the lawfulness of their detention by filing the writ.

Hwang Geum Joo et al. v. Japan, Minister Yohei Kono, Minister of Foreign Affairs

Summary

Between 1931 and 1945, some 200,000 women were forced into sexual slaverty by the Japenese Army. These women, referred to as “comfort women” were recruited through forcible abductions, deception and coercion. Once captured, they were taken by the Japanese military to “comfort stations”, that is, facilities seized or built by the military near the front lines for express purpose of housing these women. Once there, the women would be repeatedly raped, tortured, beaten, mutilated and sometimes murdered. They were denied proper medical attention, shelter and nutrition.

The present lawsuit was brought by fifteen former “comfort women” against Japan. Having been unsuccessful before the United States District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, the Supreme Court vacated the decision of the Court of Appeals and remanded the case. By its decision of 28 June 2005, the Court of Appeals once again dismissed the appeal on the grounds that the Appellant’s claims were non-justiciable under the political question doctrine as they would require the Courts to interpret treaties concluded between foreign States. 

Procedural history

On 18 September 2000, fifteen “comfort women” field a lawsuit against Japan in the United States alleging that they were forcibly abducted from their homes and coerced into serving as sex slaves for the Japanese military before and during World War II.

On 4 October 2001, the United States District Court for the District of Columbia dismissed the suit on the grounds that Japan enjoyed sovereign immunity pursuant to the Foreign Sovereign Immunities Act.On appeal, by a decision of 27 June 2003, the United States Court of Appeals for the District of Columbia Circuit affirmed the decision of the lower court.The appellants petitioned the United States Supreme Court for a writ of certiorari. On 14 June 2004, the Supreme Court granted the writ on the grounds that the Foreign Sovereign Immunities Act was applicable whatever the timing of the underlying conduct in question. The decision of the Court of Appeals was vacated and the decision remanded for re-consideration.

Related developments

On 21 September 2006, the Supreme Court denied certiorari in respect of the appeal against the decision of the Court of Appeals from 2005.

Legally relevant facts

Between 1931 and 1945, some 200,000 women were forced into sexual slavery by the Japenese Army. These women, referred to as “comfort women” were recruited through forcible abductions, deception and coercion. Once captured, they were taken by the Japanese military to “comfort stations”, that is, facilities seized or built by the military near the front lines for express purpose of housing these women. Once there, the women would be repeatedly raped, tortured, beaten, mutilated and sometimes murdered. They were denied proper medical attention, shelter and nutrition.

The “comfort stations” were regulated by the Japanese Army. Soldiers were charged for access with price depending on a woman’s nationality, whilst length of stay and time of visit depended upon the soldier’s rank (para. 3, Appeals Court Opinion from 2003).

Core legal questions

Are US courts entitled to entertain the Appellants’ claims where such claims rest on the correct interpretation of a series of treaties concluded by Japan in order to secure the peace after World War II?

Specific legal rules and provisions

Articles 8(a), 14 and 26 of the Treaty of Peace between Japan and the Allied Powers.

Article 11 of the 1952 Treaty of Peace between Japan and the Republic of China (Taiwan).

Article 2(1) of the Treaty of Peace between Japan and the Republic of Korea (South Korea).

Joint Communiqué between Japan and the People’s Republic of China.

Treaty of Peace and Friendship between Japan and the People’s Republic of China.

Alien Torts Act.

Court's holding and analysis

The United States is not a party to the treaties whose meaning the appellants dispute. Adjudication of such treaties would, as the Executive has put it, undo a settled foreign policy of state-to-state negotiation with Japan and could disrupt Japan’s relations with China and Korea (p. 5). Consequently, the case is rendered non-justiciable under the political question doctrine. The judgment of the District Court is affirmed (p. 6).

Amicus Brief in Movsesian v. Victoria Versicherung, A.G.

On September 21, 2009, EarthRights International filed an amicus brief on behalf of human rights

organizations in the U.S. Court of Appeals for the Ninth Circuit in the case Movsesian v. Victoria

Versicherung, A.G. The case concerns a California statute allowing California courts to hear certain

lawsuits arising out of insurance policies held by Armenian genocide victims, and extending the time

to file such lawsuits. A three-judge panel of the Ninth Circuit initially found that the California law was

preempted by a federal policy against using the phrase "Armenian genocide." The plaintiffs then

petitioned for rehearing. Because this case could have implications for the preemption of other state

laws, including laws under which ERI has sued, ERI filed a brief in favor of rehearing, arguing that the

California law should not have been preempted because any federal policy against recognizing the

Armenian genocide does not have the force of law, and cannot preempt state law.

On December 10, 2010, the panel granted the petition for rehearing and upheld the law. The court

found that there was no federal policy against recognizing the Armenian genocide, as various

presidential administrations, including the Obama Administration, had issued statements recognizing

the genocide. The court also rejected the argument that the law intrudes into the federal

government's power to conduct foreign affairs, even if there is no conflict with an explicit federal

policy. The court noted that the state, in seeking to protect the insurance claims of thousands of its

residents, was promoting a traditional state interest.

Following this ruling, the defendants petitioned for rehearing before an 11-judge "en banc" panel of

the Ninth Circuit. ERI filed another amicus brief on behalf of human rights organizations, this time

supporting the new opinion and opposing en banc rehearing. The Republic of Turkey filed an amicus

brief on the side of the defendants.

On November 7, 2011, the Ninth Circuit ordered en banc rehearing in the case, which will take place

in December 2011. ERI again filed an amicus brief that expanded upon previous arguments as to why

the California law did not conflict with any federal policy or interfere with the federal government’s

management of foreign affairs. The brief also argues that the Ninth Circuit should not consider the

views expressed by Turkey in its amicus brief when determining the foreign affairs implications of the

California law.