Discretion, Delegation, and Defining in the Constitution\u27s Law of Nations Clause

Never in the nation\u27s history has the scope and meaning of Congress\u27s power to Define and Punish. . . Offenses Against the Law of Nations mattered as much. The once obscure power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statue (ATS) to military commissions trials in Guantanamo Bay. Yet it has not yet been recognized that these issues both involve the Offenses Clauses, and indeed raise common constitutional questions.First, can Congress only Define offenses that clearly already exist in international law, or does it have discretion to codify debatable, embryonic, or even nonexistent international law norms? Second, assuming Congress does have creative leeway under the Offenses Clause, what happens to this discretion when it delegates the power to a coordinate branch? Ironically, the Offenses Clause has cross-cutting political implications: a narrow understanding of the power limits the crimes that can be tried before military commissions, but also forecloses much human rights litigation under the ATS. This Article shows that Offenses Clause only allows Congress to Define -- to specify the elements and incidents of - offenses already created by customary international law. It does not allow Congress to create entirely new offenses independent of preexisting international law. At the same time, the Framers understood international law to be vague and intertwined with foreign policy considerations. Reasonable people can widely disagree about what international law is and requires. Thus courts reviewing congressional definitions should give them considerable deference. Moreover, whatever discretion Congress has in defining offenses disappears when it broadly delegates that power to another branch, as it has in the ATS. Thus courts can only recognizes causes of action under the ATS for the most well-established and clearly defined international crimes. The Supreme Court suggested a similar standard for ATS causes of action in Sosa v. Alvarez-Machain. Appreciating the role of delegation in the ATS shows that the limits on offenses that can be litigated under the statute have a constitutional dimension. The Article develops the original understanding of the Offenses Clause -- particularly important given the lack of any judicial decisions on it in the nation\u27s first century. It draws on previously unexplored sources, such as early cases about the meaning of the Define power in the cognate context of piracy and felonies; legislation by early Congresses exercising - or refusing to exercise -- the Offenses power -- and discussions by Framers like Madison and others

A Guantanamo on the Sea : The Difficulties of Prosecuting Pirates and Terrorists

As a surge in pirate attacks in the seas around the Horn of Africa threatens to seriously damage international trade, the nations of the world have refused to enforce international law against these criminals. The dozens of nations patrolling the Gulf of Aden have ample legal authority to detain and prosecute pirates. Yet the United States and other navies have, as a matter of policy, been releasing apprehended pirates because of the difficulty of detaining or successfully prosecuting them. These fears are not unwarranted. As this Essay shows, while on the one hand international law requires all nations to fight pirates, a variety of other international legal rules—ranging from the Geneva Conventions to refugee law to the Law of the Sea Treaty—are in tension with this goal. These tensions are daunting enough to keep nations from even trying. The legal issues that prevent states from effectively dealing with pirates are precisely the same as those that have plagued responses to international terrorism. The War on Piracy and the War on Terror both raise questions about the legal status of conflicts between traditional states and diffuse multinational networks. Pirates, like terrorists, fall in the gray zone between military combatants and civilians. But the similarities between the legal problems of piracy in Somalia and those of the battle against international terrorism do not end there. Lack of clarity about pirates\u27 prisoner of war status, the use of prolonged detention, rendition to countries with poor human rights records, claims of abuse by the detainees, accidental killings of innocent civilians, the difficulty of proving cases arising from the field of active military operations in civilian court, and the legality of targeted killings of suspected wrongdoers are just a few of the issues that have plagued both legal efforts against international terrorists and against piracy in the just first few months of the current Somali campaign. The legal response to terrorism has been among the most contentious public issues in recent years. It is widely asserted that trying foreign terrorists in civilian courts is a workable response. However, the failure of this same strategy in the case of piracy—indeed, the refusal of the very nations that promote such an approach for terrorism to even attempt it with piracy—suggests that the civilian approach to terrorism will be extraordinarily challenging. For a variety of reasons, piracy would be far easier to deal with than terrorism. Thus, the legal impediments to dealing with piracy serve as an ideal case study for the future of terrorism prosecutions