What is notable about the order is Judge Kleinfeld’s dissent, and particularly his views on the Alien Tort Statute.  He thought referring the case to mediation was inappropriate before deciding whether the  court had jurisdiction, and on that point he had serious doubts.  The case involved alien plaintiffs, a foreign corporation, and claims arising out of events in Papua New Guinea.  It was therefore “entirely extraterritorial.”  The Alien Tort Statute, in Judge Kleinfeld’s view, did not create jurisdiction for this kind of case.

Other federal human rights statutes, such as the Torture Victims Protection Act, have extraterritorial application by their terms.  But the ATS, laconic as it is — “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” – doesn’t say one way or the other whether some sort of U.S. nexus is necessary to the exercise of jurisdiction.  And there is a longstanding presumption in American law that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” *

That the ATS grants jurisdiction only for claims with some reasonably direct connection to the United States seems plausible given the reasons for its promulgation in 1789:

It is risible to think [Kleinfled argues] that the first Congress wrote the Alien Tort Statute intending to enable federal courts to adjudicate claims of war crimes committed abroad. Were it otherwise, a French aristocrat who had escaped the guillotine and fled to Philadelphia could have sued French defendants in our newly organized federal courts, perhaps even Robespierre himself, and obtained an injunction commanding the bloody French revolutionaries to stop immediately. Perhaps we should have mediated the French Revolution, or issued a preliminary injunction to maintain the status quo while we decided whether we had jurisdiction? This silly hypothetical would be analogous to our adjudicating or mediating the class action claims in this case. The point of the Alien Tort Statute was to keep us out of international disputes, not to inject us into them.

Judge Reinhardt responded to Kleinfeld’s dissent, confidently asserting that referral of the dispute to mediation would not reignite the civil war in Papua New Guinea “or cause any other disruption of international affairs.”

My basic criticism rested on the Supreme Court’s decision in Medellin v. Texas.  Medellin said that the President couldn’t convert a non-self-executing treaty into domestic law with preemptive effect in the absence of congressional action.  A fortiori, I argued, the President’s expressions of a “federal policy” against recognition of the Armenian Genocide shouldn’t have preemptive effect either, especially where (as here) Congress had  expressed support for recognition.

So it’s nice to see that the 9th Circuit has reversed course, withdrawn the previous Movsevian opinion, and issued a new one (2010 WL 5028828), holding that the California law is not preempted. Here’s its reasoning in brief:

• First, the court draws a lesson from Medellin, implicitly acknowledging the tension between that decision and Garamendi:

It is well settled that “at some point an exercise of state power that touches on foreign relations must yield to the National Government’s policy.” [Garamendi]. “Nor is there any question generally that there is executive authority to decide what that policy should be.” Id.… However, not every executive action or pronouncement constitutes a proper invocation of that potentially preemptive policy-making power. See Medellin v. Texas….

• Second, the court pointed to notable expression of support for recognizing the Armenian Genocide by former presidents, President Obama, Congress, and the states.

• Finally — and significantly, I think  – the court made use of a footnote in Garamendi that has yet to receive much judicial attention. That footnote directs courts conducting preemption analyses to consider the strength of a state’s interest to determine “how serious a conflict [with federal law or policy] must be shown before declaring the state law preempted.”  The court found that California had a sizable interest in insurance regulation and that the effect on foreign affairs was “incidental.”

The purpose of the Charming Betsy canon is to avoid the negative “foreign policy implications” of violating the law of nations, and Plaintiffs have offered no reason to believe that [the low wages they were paid for working while in prison] are likely to embroil the nation in a foreign policy dispute.  That the courts should ever invoke the Charming Betsy canon in favor of United States citizens is doubtful, because a violation of the law of nations as against a United States citizen is unlikely to bring about the international discord that the canon guards against.  In The Charming Betsy, the status of the ship’s owner as a Danish subject, and thus a neutral in the conflict between the United States and France, was critical to the Court’s conclusion that the Non-Intercourse Act of 1800 should not be interpreted to permit the seizure and sale of his ship. We have never employed the Charming Betsy canon in a case involving exclusively domestic parties and domestic acts, nor has the Supreme Court. As a general rule, domestic parties must rely on domestic law when they sue each other over domestic injuries in federal court. We need not consider whether the statutory and regulatory regime of federal inmate compensation conflicts with the law of nations because Plaintiffs, as United States citizens and residents, have not demonstrated that their low wages have any possible ramifications for this country’s foreign affairs.

(Citations and internal quotation marks removed)

In Gucci America v. Curveal Fashion, 2010 WL 808639, the Southern District of New York ordered a Malaysian bank, that was not party to the suit, to produce information about the defendant’s Malaysian bank accounts. The bank objected to the subpoena on the ground that Malaysian banking secrecy laws explicitly prohibited disclosure and that disclosure would violate Malaysian criminal law. The court nevertheless found that disclosure was justified, basing that conclusion on two factors: first, that the bank failed to produce evidence that it would actually be prosecuted and punished under Malaysian law, and second, that the Malaysian government itself had not voiced objections to disclosure.

In In re Air Cargo Shipping Services Antitrust Litigation, 2010 WL 1189341, the Eastern District of New York ordered Air France, a party in a multidistrict antitrust action, to produce several boxes of documents related to the litigation. Air France objected that the plaintiffs’ discovery request would have to comply with the procedures of the Hague Evidence Convention; otherwise, turning over the documents would cause it to violate a French blocking statute. That statute criminalized the production of evidence located in France for use in foreign legal proceedings without complying with the Hague Convention’s procedural requirements. The court rejected Air France’s argument on the ground that it faced no real threat of prosecution for producing the documents and that the U.S. interest in enforcement of its antitrust laws outweighed France’s interest in controlling access to information within its borders.

 Aulaqi was added to the kill list because intelligence officials say he has taken on an operational role in attempted terrorist attacks.  Because he is a U.S. citizen, his addition to the list required special permission from the White House.

NY Times offers some details of the legal underpinnings of the decision:

As a general principle, international law permits the use of lethal force against individuals and groups that pose an imminent threat to a country, and officials said that was the standard used in adding names to the list of targets. In addition, Congress approved the use of military force against Al Qaeda after the Sept. 11, 2001, terrorist attacks. People on the target list are considered to be military enemies of the United States and therefore not subject to the ban on political assassination first approved by President Gerald R. Ford.

Both the C.I.A. and the military maintain lists of terrorists linked to Al Qaeda and its affiliates who are approved for capture or killing, former officials said. But because Mr. Awlaki is an American, his inclusion on those lists had to be approved by the National Security Council, the officials said.

President Obama said Monday that he was revamping American nuclear strategy to substantially narrow the conditions under which the United States would use nuclear weapons….

Mr. Obama’s strategy is a sharp shift from those of his predecessors and seeks to revamp the nation’s nuclear posture for a new age in which rogue states and terrorist organizations are greater threats than traditional powers like Russia and China.

It eliminates much of the ambiguity that has deliberately existed in American nuclear policy since the opening days of the cold war. For the first time, the United States is explicitly committing not to use nuclear weapons against nonnuclear states that are in compliance with the Nuclear Nonproliferation Treaty, even if they attacked the United States with biological or chemical weapons or launched a crippling cyberattack.

The New Yorker identifies many of the law-of-war issues the video raises: proportionality, positive identification, “command culture,” and aid to the wounded. Of course, we as viewers benefit from 20/20 hindsight, thanks in part to Wikileaks’ research. The fog of war clouds the clarity of many of these concepts. Soldiers are trained to be fighters–and killers–not lawyers.  With that granis salis should the video be judged.  There is no doubt, however, that it is saddening.

The petitioners advanced two arguments why the district court should afford them habeas relief.  First, they contended that though they were in the hands of foreign governments, they were nevetheless in the “constructive custody” of the United States.  The court dismissed that argument, relying on the government’s assertions at the time of transferring the detainees that the United States retained no control over them and that the foreign government’s jurisdiction was exclusive.

Second, the petitioners sought relief under the “collateral consequences” doctrine, under which a court may fashion judicial relief for a petitioner no longer in U.S. custody in order to alleviate the “collateral consequences” of his former detention. The petitioners claimed that some of them continued to be detained by the foreign governments, others were subject to travel restrictsion, they had suffered stigmatic (reputational) injuries, and none could seek civil damages for their former detention–all as a result of once being Guantanamo detainees.  The court dismissed these arguments on three different grounds: (1) it was unable to fashion relief (e.g., unable to control the decisions of foreign governments), (2) the reputational injuries were speculative, and (3) granting relief (such as release) would not redress some of the injuries (e.g., many petitioners would remain on no-fly lists).

Some district courts had held otherwise, interpreting the AUMF in light of the international law of war and ruling that, while the president could detain individuals who are “part of” al-Qaeda or the Taliban, he could not detain individuals rendering “support,”  and or even “substantial support,” to those organizations.  The Court of Appeals swept those rulings aside, saying:

There is no indication in the AUMF [or other relevant stautes] that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.

 Accordingly, the court held that an individual may lawfully be detained whether he was “part of” or “substantially supporting” al-Qaeda, the Taliban, or other enemy forces.

Part of the court’s reasoning mirrors a point that was articulated here.  In the Military Commissions Act of 2009, Congress has authorized the President to try by military commission “unprivileged enemy belligerents,” defined as including persons who “purposefully and materially supported hostilities against the United States or its coalition partners.”  If the President can try individuals that “supported” enemy forces, the court reasoned, he certainly has the authority to detain them.  Referring to other relevant stautes, including those that criminalize the knowing provision of “material support and resources” to terrorist organization, it was pointed out in this blog:

[W]hat is most odd about [the district court's] rejection of the “substantial support” criterion [for detention] is the anomalous disconnect it creates between the government’s ability to detain and its ability to prosecute.   Under the above statutes, the government may prosecute individuals who are not members of terrorist organizations but who nevertheless “support” such organizations in some “material” way.  However, in an odd twist, [the district court's decision] bars the government from detaining individuals who, though not members of terrorist organizations, nevertheless “support” those organizations in some “substantial” way.

It goes without saying that we think the D.C. Circuit, by all means, got it right.  Given the way the court ruled, it didn’t have to decide whether the “part of” and “substantial support” standards are consistent with the law of war.  We think both are, in any event.