2013 International Law Update, Volume 19, Number 1 (January - February - March)

2013 International Law Update, Volume 19, Number 1 (January - February - March)

Legal Analyses published by Mike Meier, Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com. 

ALIEN TORT STATUTE

In case brought by licensed Whalers against environmental activists who interfere with whaling operations, Ninth Circuit reverses district court and finds that environmental activism can amount to piracy and be a “private end”

The Plaintiff‑Appellants (“Cetacean”) in the following case are Japanese researchers who hunt whales based on a permit. Many nations, including the U.S. and Japan, are parties to the International Convention for the Regulation of Whaling (December 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74). The Convention, article VIII, authorizes whale hunting when based on a research permit issued by a signatory nation. Cetacean holds such a permit from Japan.

The Sea Shepherd Conservation Society (“Sea Shepherd”) has tried its best to make Cetacean miserable through aggressive “direct action” tactics that are sometimes called “eco‑terrorism.” Sea Shepherd’s methods include damaging vessels, as well as throwing acid containers and smoke bombs onto vessels.

Cetacean sued Sea Shepherd under the Alien Tort Statute, 28 U.S.C. Section 1350 [cause of action for “a tort ¼ committed in violation of the law of nations or a treaty of the United States.”]. Cetacean claims that Sea Shepherd’s actions constitute piracy and violate international agreements. The U.S. District Court for the Western District of Washington denied Cetacean’s motion for a preliminary injunction and dismissed the piracy claims.

The U.S. Court of Appeals for the Ninth Circuit reverses the District Court’s denial of the preliminary injunction. Also, the Court finds that Cetacean did state a claim for piracy.

Cetacean’s allegations of piracy meet the UNCLOS definition. Even environmental activism can be a “private end”:

“We review the district court’s dismissal of Cetacean’s piracy claims de novo. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008). ‘[The definition of piracy under the law of nations . . . [is] spelled out in the UNCLOS, as well as the High Seas Convention,’ which provide almost identical definitions. United States v. Dire, 680 F.3d 446, 469 (4th Cir. 2012); see United Nations Convention on the Law of the Sea (‘UNCLOS’), art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397; Convention on the High Seas, art. 15, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82. The UNCLOS defines ‘piracy’ as ‘illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship . . . and directed . . . on the high seas, against another ship . . . or against persons or property on board such ship.’ UNCLOS art. 101 ¼; see also Convention on the High Seas art. 15.”

“The district court’s analysis turns on an erroneous interpretation of ‘private ends’ and ‘violence.’ The district court construed ‘private ends’ as limited to those pursued for ‘financial enrichment.’ But the common understanding of ‘private’ is far broader. The term is normally used as an antonym to ‘public’ (e.g., private attorney general) and often refers to matters of a personal nature that are not necessarily connected to finance (e.g., private property, private entrance, private understanding and invasion of privacy). See Webster’s New Int’l Dictionary 1969 (2d. ed. 1939) (defining ‘private’ to mean ‘[b]elonging to, or concerning, an individual person, company, or interest’).”

“We give words their ordinary meaning unless the context requires otherwise. ¼ The context here is provided by the rich history of piracy law, which defines acts taken for private ends as those not taken on behalf of a state. ¼ Belgian courts, perhaps the only ones to have previously considered the issue, have held that environmental activism qualifies as a private end. See Cour de Cassation [Cass.] [Court of Cassation] Castle John v. NV Mabeco, Dec. 19, 1986, 77 I.L.R. 537 (Belg.). This interpretation is ‘entitled to considerable weight.’ Abbott v. Abbott, 130 S. Ct. 1983, 1993 (2010) (internal quotation marks omitted). We conclude that ‘private ends’ include those pursued on personal, moral or philosophical grounds, such as Sea Shepherd’s professed environmental goals. That the perpetrators believe themselves to be serving the public good does not render their ends public.”

“The district court’s interpretation of ‘violence’ was equally off‑base. Citing no precedent, it held that Sea Shepherd’s conduct is not violent because it targets ships and equipment rather than people. This runs afoul of the UNCLOS itself, which prohibits ‘violence . . . against another ship’ and ‘violence . . . against persons or property.’ UNCLOS art. 101. Reading ‘violence’ as extending to malicious acts against inanimate objects also comports with the commonsense understanding of the term, see Webster’s New Int’l Dictionary 2846, as when a man violently pounds a table with his fist. Ramming ships, fouling propellers and hurling fiery and acid‑filled projectiles easily qualify as violent activities, even if they could somehow be directed only at inanimate objects.”

“Regardless, Sea Shepherd’s acts fit even the district court’s constricted definition. The projectiles directly endanger Cetacean’s crew, as the district court itself recognized. And damaging Cetacean’s ships could cause them to sink or become stranded in glacier‑filled, Antarctic waters, jeopardizing the safety of the crew.”

“The activities that Cetacean alleges Sea Shepherd has engaged in are clear instances of violent acts for private ends, the very embodiment of piracy. The district court erred in dismissing Cetacean’s piracy claims.” [Slip op. 5‑7]

The Court also reverses the denial of a preliminary injunction.

“Cetacean sought its injunction pursuant to three international agreements: the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (‘SUA Convention’), art. 3, Mar. 10, 1988, S. Treaty Doc. No. 101‑1, 1678 U.N.T.S. 222, the UNCLOS and the Convention on the International Regulations for Preventing Collisions at Sea (‘COLREGS’), Oct. 20, 1972, 28 U.S.T. 3459, 1050 U.N.T.S. 18.” [¼]

“The SUA Convention prohibits acts that endanger, or attempt to endanger, the safe navigation of a ship. SUA Convention art. 3. Cetacean presented uncontradicted evidence that Sea Shepherd’s tactics could seriously impair its ability to navigate. The district court nonetheless concluded that, since Sea Shepherd has not yet disabled any of Cetacean’s ships, it’s unlikely it would succeed in the future. This was clear error. The district court overlooked the actual language of the Convention, which prohibits ‘endanger[ing]’ safe navigation. Id. This requires only that Sea Shepherd create dangerous conditions, regardless of whether the harmful consequences ever come about. See Webster’s New Int’l Dictionary 843. As to whether Sea Shepherd’s tactics actually are dangerous, the record discloses that it has rammed and sunk several other whaling vessels in the past. ¼”

“ ¼ The district court’s conclusion that Cetacean wasn’t likely to succeed on its SUA Convention claims rested on an implausible determination of the facts and an erroneous application of law; it was an abuse of discretion. ¼”

“The district court did find that Cetacean is likely to succeed on the merits of its claims under the COLREGS. The COLREGS state obligatory and universal norms for navigating ships so as to avoid collision. ¼ Sea Shepherd deliberately navigates its ships dangerously close to Cetacean’s ships. The district court’s finding that this is likely a violation of the COLREGS is adequately supported by the record. ¼”

“The district court determined that ‘injury is possible, but not likely,’ even though it found that the projectiles Sea Shepherd launches at Cetacean’s ships ‘are an obvious hazard to anyone who [sic] they might hit’ and that Sea Shepherd navigates its ships ‘in such a way that a collision is highly likely.’ Sea Shepherd itself adorns the hulls of its ships with the names and national flags of the numerous whaling vessels it has rammed and sunk. ¼ The district court’s observation that Cetacean hasn’t yet suffered these injuries is beside the point. ¼ Cetacean’s uncontradicted evidence is that Sea Shepherd’s tactics could immobilize Cetacean’s ships in treacherous Antarctic waters, and this is confirmed by common sense: A dangerous act, if committed often enough, will inevitably lead to harm, which could easily be irreparable.” [Slip op. 8‑10]

“¼ The primary public interests at issue here are the health of the marine ecosystem ¼, and the safety of international waterways.”

“Where a valid law speaks to the proper level of deference to a particular public interest, it controls. ¼ Our laws defining the public interest in regards to whaling are the Whaling Convention Act and the Marine Mammal Protection Act, both of which permit whaling pursuant to scientific permits issued under the Whaling Convention. 16 U.S.C. § 1372; 16 U.S.C. § 916c. Cetacean’s activities are covered by such a permit and thus are consistent with congressional policy as to the marine ecosystem.”

“Our laws also reflect a strong public interest in safe navigation on the high seas. As already discussed, Sea Shepherd’s activities clearly violate the UNCLOS, the SUA Convention and the COLREGS. ¼ As such, they are at loggerheads with the public interest of the United States and all other seafaring nations in safe navigation of the high seas.” [¼]

“The district court also rejected Cetacean’s claims on international comity grounds. While there is a public interest in maintaining harmonious international relations, it’s not a factor here. An Australian court has entered default judgment against Cetacean, purporting to enjoin it from whaling in Antarctic coastal waters over which Australia claims sovereignty. The district court’s deference to Australia’s judgment in that case was an abuse of discretion. ¼ To begin, the district court misunderstood the Australian judgment, which addressed the legality of Cetacean’s activities, not Sea Shepherd’s. Whatever the status of Cetacean’s whaling under Australian law, it gives Sea Shepherd no license to engage in piracy. It is for Australia, not Sea Shepherd, to police Australia’s court orders.”

“Additionally, comity applies only if the foreign court has competent jurisdiction. ¼ But the United States doesn’t recognize Australia’s claims of sovereignty over Antarctic waters. See Note from U.S. Deputy Representative to the United Nations, to Secretary‑General of the United Nations (Dec. 3, 2004); Note from Embassy of the United States, to Australian Department of Foreign Affairs and Trade (Mar. 31, 1995). By according comity to Australia’s judgment, we would implicitly recognize Australia’s jurisdiction, in contravention of the stated position of our government. The conduct of foreign affairs is within the exclusive province of the Executive ¼ and we must defer to its views ¼” [¼]

“The district court held that Cetacean’s hands are unclean because, ‘[i]n flouting the Australian injunction, the whalers demonstrate their disrespect for a judgment of a domestic court.’ Because neither the United States nor Japan recognizes Australia’s jurisdiction over any portion of the Southern Ocean, Cetacean owes no respect to the Australian order. Moreover, the unclean hands doctrine requires that the plaintiff have ‘dirtied [his hands] in acquiring the right he now asserts, or that the manner of dirtying renders inequitable the assertion of such rights against the defendant.’ ¼. Cetacean has done nothing to acquire the rights to safe navigation and protection from pirate attacks; they flow automatically from customary international law and treaties. Nor is there anything remotely inequitable in seeking to navigate the sea lanes without interference from pirates.” [Slip op. 11‑14]

Therefore, the Court reverses and remands, and recommends the case be assigned to a different judge.

Citation: Institute for Cetacean Research v. Sea Shepherd Conservation Society, No. 12‑35266 (9th Circuit, February 25, 2013).

CULTURAL PROPERTY

In challenge to seizure of ancient coins by Customs Officers based on Convention on Cultural Property Implementation Act (CPIA), Fourth Circuit declines review because such matters are statutorily within executive discretion and congressional oversight

Based on the Convention on Cultural Property Implementation Act (CPIA), 19 U.S.C. Sections 2601‑2613, foreign countries can request that the U.S. restrict the imports of certain articles of cultural significance.

In the following case, the Ancient Coin Collectors Guild (“Guild”) unsuccessfully attempted to import Chinese and Cypriot coins, and requested a review of the implementation of the CPIA import restrictions.

The CPIA is based on the international “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property” (“Convention”) (November 14, 1970, 823 U.N.T.S. 231). Pursuant to Article 9 of the Convention, a “State Party” can request that other signatories protect the requesting state’s cultural property from theft and illicit export. Such steps include import and/or export controls. Id. art. 9. The Convention defines the term “cultural property” to include an array of items “of importance for archaeology, prehistory, history, literature, art or science.” Id. art. 1.

To implement the Convention domestically, Congress passed the CPIA in 1982, and President Reagan signed it into law in 1983. Convention on Cultural Property Implementation Act, Pub. L. 97‑446, tit. III, 96 Stat. 2350 (1983) (codified at 19 U.S.C. §§ 2601‑2613).

The CPIA, however, restricts only imports of “archeological or ethnological material of the State Party,” which is defined as any object that was “first discovered within, and is subject to the export control by, the State Party.” Section 2601(2).

Here, both Cyprus and China requested the U.S. to restrict imports of archeological and/or ethnological materials. In 2009, after import restrictions on items from those two countries were put into place, the Guild purchased 23 ancient Chinese and Cypriot coins from a numismatic dealer in London. The dealer documentation stated that each coin was minted in Cyprus or China, but had not recorded provenance, and the find spot was unknown.

The Guild’s shipment was seized by U.S. Customs & Border Protection (CBP), and would only be released if the Guild provided evidence that the coins were either (1) lawfully exported while CPIA restrictions were in effect; (2) exported from its respective country of origin more than 10 years before they arrived in the U.S.; or (3) exported from its respective country of origin before the CPIA restrictions went into effect. The Guild did not provide the requested information to CBP.

A few months later, the Guild filed the present case against various parties, including CBP and the U.S. Department of State, in the U.S. District Court for the District of Maryland. The Complaint alleged violations of the Administrative Procedures Act, as well as of the First and Fifth Amendments to the U.S. Constitution. The District Court granted the Government’s Motion to Dismiss. The Guild appeals.

The U.S. Court of Appeals for the Fourth Circuit affirms, noting that the Guild may pursue various forfeiture defenses. This area is statutorily within the executive discretion and congressional oversight, and the Court thus declines to review the matter.

“¼ Congress set out an elaborate statutory scheme for promulgating import restrictions on culturally sensitive items and gave the Executive Branch broad discretion in negotiating Article 9 agreements with foreign states. See 19 U.S.C. § 2602(a). Congress itself retained oversight of the CPIA process, id. § 2602(g), and placed significant responsibility in the hands of CPAC, a body composed of experts in the fields of archaeology and ethnology, id. § 2605. Congress also provided forfeiture procedures through which importers could challenge any seizures made pursuant to the CPIA. Id. § 2609.”

“The conclusions to be drawn from the entirety of this statutory scheme are clear. The federal judiciary has not been generally empowered to second‑guess the Executive Branch in its negotiations with other nations over matters of great importance to their cultural heritage, to overrule CPAC in its conclusion that import restrictions on coins were necessary to protect the cultural patrimonies of Cyprus and China, or to challenge Congress in its decision to channel CPIA disputes through forfeiture proceedings. Mindful of the deference owed the political branches under the statute, we consider the Guild’s arguments.” [Slip op. 10]

“The statute, as noted, involves a sensitive area of foreign affairs where Congress itself has delegated the Executive Branch significant discretion. Given that approach, a searching substantive review of the State Department’s diplomatic negotiations or CPAC’s application of its archaeological expertise would be singularly inappropriate in this forum. And the record itself leaves no room for an ultra vires challenge on any other basis.” [Slip op. 12]

“Notwithstanding the above, the Guild argues that the State Department and CBP ran off the rails by enacting import restrictions on Chinese coins without following the procedures required by the CPIA. The Guild alleges two distinct violations of the statute. First, the Guild argues that the State Department imposed restrictions on Chinese coins even though China did not mention coins in its May 2004 request. In making this argument, however, the Guild seeks to add a provision to the statute that is simply not there, namely a requirement that a request under Article 9 include ‘a detailed accounting of every item eventually covered by an Article 9 agreement.’ [Ancient Coin Collectors Guild (ACCG) v. U.S. Customs & Border Protection, 801 F. Supp. 2d 383, 410 (D. Md. 2011)].” [Slip op. 13‑14]

“Second, the Guild contends that the State Department’s notice in the Federal Register was defective because it did not mention that China requested restrictions on coins. Once again, the Guild effectively seeks to have us impose a requirement that does not appear in the CPIA, this time that the State Department ‘publish verbatim the list of items requested to be restricted.’ ACCG, 801 F. Supp. 2d at 410.”

“The statute merely requires that the State Department publish ‘notification of the request’ in the Federal Register, 19 U.S.C. § 2602(f)(1), not an exhaustive description of its terms. To scrutinize the adequacy of the State Department’s publication and require a verbatim publication of a foreign request would involve the judiciary in the very early stages of the CPIA process and place upon the State Department a burden that Congress did not intend.” [Slip op. 14‑15]

“In sum, each of the Guild’s arguments with respect to State’s procedural compliance would have us add encumbrances to the CPIA, ultimately placing additional burdens on foreign governments and State Department officials negotiating Article 9 agreements with those governments. It is true that at the conclusion of negotiations and upon the reaching of an Article 9 agreement with the foreign government in question, CBP must publish a list of import restrictions by type in the Federal Register. Id. § 2604. CBP complied with that requirement here. 74 Fed. Reg. 2,839‑2,842. But the detail required by the statute at the conclusion of the process is altogether different from the level of detail required before negotiations between our country and another nation have even so much as begun.”

“Congress sought to strike a balance here between the need for notice and transparency on the one hand, and the need for confidentiality in sensitive matters of diplomacy on the other. Likewise in balance is the aim of having the CPIA process move forward with some modicum of efficiency while still providing both proper notice of the restrictions and procedural recourse for those who are subject to them. It is clear that deviation from the provisions of the statute runs every risk of throwing this balance out of kilter in an area where traditional competencies and constitutional allocations of authority have counseled reluctance on the part of the judiciary to intervene. The Guild asks us to do just that, and we decline its invitation.” [Slip op. 15‑16]

“We emphasize that our decision does not leave the Guild without a remedy. At oral argument and in its brief, the government represented that it will bring a forfeiture action under the statutory scheme once this litigation has concluded, Gov’t Br. at 43. There, it hardly need be said, the basics of due process require that the Guild be given a chance to contest the government’s detention of its property.” [Slip op. 22]

Citation: Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, No. 11‑2012 (4th Cir. October 22, 2012).

EXTRADITION

Reviewing Extradition Request from Argentina, Fifth Circuit rejects “dual criminality” challenge because of unspecified value of goods stolen in Argentina; Court conducts only limited review as to whether any competent evidence tends to support the magistrate’s probable‑cause assessment of the goods’ value; Court notes that evidentiary rules do not control extradition hearing, and authenticated documents may serve as competent evidence in support of a magistrate’s determination

In December 2006, Tanci Issa Balzan allegedly swindled an Argentina fashion designer, Ruben Gonzalez, out of several clothing items and designs, in violation of the Argentine Criminal Code. According to the charging documents, Balzan pretended to represent an investor who would purchase 49% of the fashion designer’s business for $50,000. Balzan took from the fashion designer four dresses, four bags, two jackets, a shirt and ten folders with sketches of designs to deliver them to the investor, who would then deposit the first installment of the investment. The investor money never came, and Balzan disappeared.

In March 2010, Argentina requested Balzan’s extradition from the U.S. In October 2010, the U.S. filed a complaint under 18 U.S.C. Section 3184 in the U.S. District Court for the Northern District of Texas, requesting the court to certify Balzan as extraditable.

The Extradition Treaty Between the United States of America and Argentine Republic (U.S.‑Argentina, June 10, 1997, S. Treaty Doc. No. 105‑18, available at www.state.gov/documents/organization/101677.pdf) has a “dual criminality” requirement. Article 2 provides that “[a]n offense shall be an extraditable offense if it is punishable under the laws of both Parties by deprivation of liberty for a maximum period of more than one year or by a more severe penalty.”

The complaint alleged that Balzan’s conduct is punishable by more than one year of imprisonment in both the U.S. and Argentina. Under Texas Penal Code Section 31.03, a theft is punishable with more than one year’s imprisonment if the value of the property obtained is at least $1,500. A magistrate judge issued an order of certification and committal for extradition. The U.S. District Court adopted the opinion of the Magistrate Judge.

Balzan filed for a writ of habeas corpus, arguing that his alleged fraud is not an extraditable offense because the government failed to establish the value of the goods he obtained unlawfully. A different magistrate judge recommended to deny the habeas petition, and the District Court adopted the report. Balzan appeals.

The U.S. Court of Appeals for the Fifth Circuit affirms because the competent evidence presented supported the determination that Balzan committed an offense within the scope of the Extradition Treaty.

The Court’s review is very narrow in this case. It only asks whether any competent evidence tends to support the magistrate’s probable‑cause assessment of the goods’ value.

“The evidentiary rules governing ordinary civil and criminal trials do not control what may be admitted in an extradition hearing. Under 18 U.S.C. § 3190, a properly authenticated document is admissible at such a hearing. Consequently, authenticated documents may serve as competent evidence in support of a magistrate’s determination.”

“The magistrate who conducted the extradition hearing found that ‘[t]he Government of Argentina submitted documents that were properly authenticated and certified.’ She relied on those documents in assessing probable cause. Balzan does not argue that the documents were improperly authenticated. Indeed, his brief cites § 3190 only once, when quoting from the government’s complaint.”

“Balzan ¼ contends that the alleged offer of the $50,000 investment is irrelevant to the value of the goods that he obtained, and consequently, that even if the authenticated documents are considered, they do not support the magistrate’s determination.” [¼]

“The ¼ argument is unpersuasive. Balzan allegedly promised Gonzalez a $50,000 investment. The government concedes that the $50,000 sum was not a promise of payment for the items that Balzan received, at least on this record. Balzan, moreover, convincingly explains that the value of a sample product may not reflect the value of a promised investment; an offer to invest $50,000 in thumbtack manufacturing, for example, does not make a sample thumbtack worth $50,000. But even though the amount of an investment offer does not determine the value of a sample product, an investment offer may still be probative of worth. The alleged $50,000 investment offer implies that Gonzalez’s work was valuable, including his numerous sketches. And that is not the only evidence in the record. Balzan also received several articles of clothing, including a gold‑embroidered dress, bags with crystals, and two leather jackets. Given the limited scope of our review, that is evidence enough.”

“Because competent evidence supports the certifying magistrate’s determination that Balzan committed an offense within the scope of the extradition treaty, we AFFIRM the district court’s denial of his petition for habeas corpus.” [702 F.3d at 224‑225]

Citation: Balzan v. United States, 702 F.3d 220 (5th Cir. 2012).

EXTRADITION

Supreme Court of Canada affirms extradition of Canadian citizens for alleged support of Liberation Tigers of Tamil Eelam where lower court found that independent assessment had been conducted and that surrender would not unjustifiably violate their rights under the Canadian Charter of Rights and Freedoms

In the following case, the U.S. requested the extradition of two Canadian citizens, accused of assisting the Liberation Tigers of Tamil Eelam (LTTE), a terrorist organization involved in insurgency in Sri Lanka. The Ontario Superior Court of Justice found the evidence sufficient to support the terrorism charges. The Canadian Minister of Justice ordered the surrender of the accused to the United States. The Court of Appeal upheld the extradition decisions, and the Accused appealed.

The Canadian Supreme Court dismisses the appeals and confirms the surrender. In brief, the record showed that the Minister conducted an independent assessment and concluded that surrender of the Accused would not unjustifiably violate their s. 6(1) Canadian Charter of Rights and Freedoms rights [Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11]. Further, the Minister’s conclusion that there were sufficient links to the United States to justify extradition flowed from this independent assessment and did not appear unreasonable.

Before the Supreme Court of Canada, the Accused/Appellants’ arguments include the following: The extradition violates s. 6(1) of the Canadian Charter of Rights and Freedoms, which guarantees the right of citizens to remain in Canada, when the foreign state’s claim of jurisdiction is weak or when prosecution in Canada is feasible, and the Minister’s review of the extradition order did not comply with the requirements of procedural fairness. The Court’s reasoning follows:

“8        Section 6(1) of the Charter provides that “[e]very citizen of Canada has the right to enter, remain in and leave Canada”. This Court first analyzed the rapport between extradition and the right to remain in Canada in Cotroni c. Centre de Prévention de Montréal, [1989] 1 S.C.R. 1469 (S.C.C.). The scheme proposed in Cotroni was subsequently confirmed and refined in United States v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 (S.C.C.), and in United States v. Lake, 2008 SCC 23, [2008] 1 S.C.R. 761 (S.C.C.). From this jurisprudence, six principles provide guidance to respond to the interpretation of s. 6(1) proposed by the appellants.”

“9        First, Cotroni, Kwok and Lake hold that extradition constitutes a marginal limitation of the s. 6(1) right to remain in Canada. Although the surrender of a Canadian citizen to a foreign country impairs the individual’s right to remain on Canadian soil, s. 6(1) is primarily aimed against exile and banishment, i.e. exclusion from membership in the national community. As a consequence, this limitation “lies at the outer edges of the core values” of s. 6(1): Cotroni, at p. 1481.”

“10      Second, and flowing from the previous point, extradition will be generally warranted under s. 1 of the Charter as a reasonable limitation of the right to remain in Canada: Cotroni, at p. 1483; Lake, at para. 37. This is supported by the pressing and substantial objectives of extradition: (1) protecting the public against crime through its investigation; (2) bringing fugitives to justice for the proper determination of their criminal liability; (3) ensuring, through international cooperation, that national boundaries do not serve as a means of escape from the rule of law.”

“11      Third, the Minister’s discretion to extradite or to prosecute in Canada is a necessary condition for the effective enforcement of the criminal law, and it attracts a high degree of deference: Cotroni, at p. 1497; Kwok, at paras. 93‑96; Lake, at para. 34. The Minister’s assessment of whether the infringement of a fugitive’s s. 6(1) right is justified under s. 1 involves a determination of whether, based on his superior expertise of Canada’s international obligations and interests, Canada should defer to the interests of the requesting state. This is mostly a political decision. Courts should interfere with the Minister’s discretion only in the ‘clearest of cases’ (Lake, at para. 30).”

“12      Fourth, ministerial discretion to extradite is not unfettered. Public authorities must give due regard and weight to the citizen’s Charter right to remain in Canada in considering whether to prosecute domestically or order surrender. The Minister must order surrender only if satisfied that extradition is more appropriate than domestic prosecution, having balanced all factors which he finds relevant under the circumstances, such as: · Where was the impact of the offence felt or likely to have been felt? · Which jurisdiction has the greater interest in prosecuting the offence? · Which police force played the major role in the development of the case? · Which jurisdiction has laid charges? · Which jurisdiction has the most comprehensive case? · Which jurisdiction is ready to proceed to trial? · Where is the evidence located? · Is the evidence mobile? · How many accused are involved and can they be gathered together in one place for trial? · In what jurisdiction were most of the acts in furtherance of the crime committed? · What is the nationality and residence of the accused? · What is the severity of the sentence that the accused is likely to receive in each jurisdiction?”

“13      Fifth, no single factor is dispositive. Nor need all relevant factors be given equal weight. The Minister may decide to grant an extradition request because of one factor which he finds determinative in a given case. The pertinence and significance of the ‘Cotroni factors’ vary from case to case: Lake, at para. 30. Nothing precludes the Minister from paying more heed to one factor than another in a given case. The inquiry is essentially a fact‑based, balancing assessment within the expertise of the Minister.”

“14      Sixth, the question of whether a Canadian prosecution is a realistic option is simply one factor that must be considered. It is not the determinative factor in the Minister’s assessment: Cotroni, at p. 1494; Kwok, at para. 92; Lake, at para. 37. ¼.” [¼]

“20      No compelling reasons have been shown to depart from the principles set out in Cotroni, Kwok and Lake. These principles have been consistently and repeatedly upheld by this Court. The common theme is that extradition, unlike exile and banishment, does not lie at the core of the right to remain in Canada under s. 6(1) of the Charter. A Canadian citizen who is extradited to stand trial in a foreign state does not necessarily become persona non grata: the accused may return to Canada if he is acquitted or, if he is convicted, at the end of his sentence or even to serve his sentence in accordance with the International Transfer of Offenders Act, S.C. 2004, c. 21. Extradition does not violate the core values of s. 6(1), but rather, it fulfills the needs of an effective criminal justice system.”

“21      The appellants have not shown that the considerations on which Cotroni (1989), Kwok (2001) and Lake (2008) were based are no longer valid. If anything, the march of globalization calls for increased international cooperation in law enforcement.” [¼]

“24      The appellants argue that the Minister’s duty of procedural fairness goes beyond providing reasons to explain which Cotroni factors prompted his decision. Procedural fairness, they say, also requires the Minister of Justice to obtain and disclose the assessment of the Public Prosecution Service of Canada (‘PPSC’) on whether to prosecute them in Canada. The appellants argue that they should be given time to respond to the prosecution assessment by the PPSC, following which the Minister should address their concerns in his final decision to extradite. They submit that disclosure is important because the decision not to lay charges in Canada was a key factor in the final decision to extradite. They add that this would ensure that the prosecutorial authorities’ assessment was not based on erroneous or out‑dated information.”

“25      The Minister refused the appellants’ requests for this information, stating that he had provided the appellants with all of the materials which he had considered in making the decisions on surrender, with the exception of legal advice, and that he had not been provided with a copy of any PPSC assessment. With respect to the PPSC’s assessment of prosecution in Canada, the Minister took the position that the decision whether to prosecute in Canada was only one of many relevant factors, and pointed out that the appellant’s right of appeal was from the decision to extradite, not the decision whether to prosecute, which involves prosecutorial discretion. (See Minister’s Reasons on Surrender re Sriskandarajah, A.R., vol. I, at pp. 50‑51; see also Minister’s reasons on Surrender re Nadarajah, at pp. 58‑59.)”

“26      The appellants’ submission that they are entitled to see the PPSC’s prosecution assessment cannot be sustained.”

“27      First and foremost, prosecutorial authorities are not bound to provide reasons for their decisions, absent evidence of bad faith or improper motives: Kwok, at paras. 104‑108. Not only does prosecutorial discretion accord with the principles of fundamental justice—it constitutes an indispensable device for the effective enforcement of the criminal law: Cotroni, at pp. 1497‑98. The appellants do not allege bad faith. Their request to see the prosecution assessment is a thinly disguised attempt to impugn the state’s legitimate exercise of prosecutorial authority.”

“28      Second, as the Minister pointed out, the ability to prosecute in Canada is but one of many factors to be considered in deciding whether to extradite a person for prosecution in another country. Procedural fairness does not require the Minister to obtain and disclose every document that may be indirectly connected to the process that ultimately led him to decide to extradite.”

“29      Finally, concerns that the decision may have been based on out‑dated information are met by the appellants’ ability to bring full and correct information to the attention of the Minister. In turn, the Minister must, in good faith, transfer to the prosecution authorities the information he finds relevant.”

“30      As a matter of procedural fairness, full Stinchcombe‑type disclosure is not required at the surrender stage ®. v. Stinchcombe, [1991] 3 S.C.R. 326 (S.C.C.)). The Minister must present the fugitive with adequate disclosure of the case against him or her, and with a reasonable opportunity to state his or her case against surrender (Kwok, at paras. 99 and 104), and he must provide sufficient reasons for his decision to surrender (Lake, at para. 46; Kwok, at para. 83). In this case, the Minister complied with these requirements.”

“31      I conclude that the claim of procedural unfairness has not been established.”

“32      The appellants argue that the Minister’s decisions to order their surrender to the United_States was unreasonable because he failed to consider all relevant factors bearing on the Cotroni assessment. In particular, they submit, the Minister failed to address (1) the weak American claim of jurisdiction over the appellants’ alleged conduct, and (2) the ability to prosecute in Canada. Accordingly, extradition was an unjustifiable limitation on the appellants’ s. 6(1) rights.”

“33      As explained above, the Minister’s order of surrender is a political decision that attracts a high degree of judicial deference. The Extradition Act confers broad discretion on the Minister’s decision to extradite: s. 7.”

“34      In these cases, the record shows that the Minister properly considered and weighed the factors relevant to the situation of the appellants. With respect to the appellants’ first concern, the Minister found that the ‘negative impact of [their] actions, when considered in concert with the alleged actions of [their] many coconspirators, would have been felt in jurisdictions outside of Canada’, implicitly including the United States (A.R., vol. I, at pp. 54 and 60). Additionally, it seems clear on the facts alleged here that the conduct described is connected in one way or another with the use of e‑mail accounts, companies and bank accounts based within the United States. With respect to the appellants’ second concern, the Minister considered whether prosecution should proceed in Canada and concluded that this factor did not negate extradition.”

“35      In concluding that extradition was a justifiable limitation of the appellants’ s. 6(1) right, the Minister provided five reasons which were relevant: the investigation was initiated and developed by American authorities; charges have been laid in the U.S.; the U.S. is ready to proceed to trial; all of the co‑accuseds have been charged in the U.S.; and most of the witnesses are located in the U.S. Contrary to the suggestion of the appellants (Sriskandarajah factum, at paras. 78‑82), the Minister did not ascribe determinative weight to the fact that the PPSC decided not to lay charges in Canada against them. The Minister conducted an independent Cotroni assessment and concluded that the surrender of the appellants would not unjustifiably violate their s. 6(1) rights, principally on the basis of the fact that the U.S. had taken the lead in investigating and prosecuting the actions of the appellants. The Minister’s conclusion that there were sufficient links to the U.S. to justify extradition flowed from this independent assessment and has not been shown to be unreasonable on the evidence.”

The Court therefore dismisses the appeal and confirms the orders of surrender.

Citation: United States of America v. Sriskandarajah, Supreme Court of Canada, 2012 CarswellOnt 15585, 2012 SCC 70, J.E. 2012‑2329, 97 C.R. (6th) 267, 290 C.C.C. (3d) 349, 104 W.C.B. (2d) 845, 45 Admin. L.R. (5th) 1, 437 N.R. 107 (December 14, 2012) (Docket: 34009, 34013).

TERRORISM/WAR CRIMES

U.S. Court of Appeals for the District of Columbia Circuit reverses conviction of driver and bodyguard of Osama bin Laden because (1) the Military Commissions Act does not retroactively punish new crimes, and (2) “material support for terrorism” was not a pre‑existing war crime under 10 U.S.C. Section 821

The following case (again) raises important questions about the scope of the Executive’s authority to prosecute war crimes.

Salim Ahmed Hamdan, originally from Yemen, was Osama bin Laden’s driver and bodyguard. He was captured in Afghanistan in November 2001 and transferred to Guantanamo Bay, Cuba. A military commission convicted him of “material support for terrorism” [see Military Commissions Act, 10 U.S.C. Section 950t(25)]. However, Hamdan’s conviction was based on his actions during the years 1996‑2001, which preceded the enactment of the Military Commissions Act. At the time that Hamdan served Osama bin Laden, a military commission could pursue only violations of the “law of war” (10 U.S.C. Section 821).

In 2006, the matter came before the U.S. Supreme Court, which held that the military commission rules then in place contravened the statutory limits because they did not fully comply with statutory restrictions in 10 U.S.C. Section 836. See Hamdan v. Rumsfeld, 548 U.S. 557, 613‑35 (2006). The Supreme Court, however, did not decide whether conspiracy was a cognizable charge in a military commission under the “law of war” for purposes of 10 U.S.C. Section 821. After Hamdan, Congress enacted a new military commissions statute. See Military Commissions Act of 2006, Pub.L. No. 109‑366, 120 Stat. 2600. [NOTE: Congress enacted a new Military Commissions Act in 2009, Pub.L. No. 111‑84, 123 Stat. 2574, but the changes therein are not relevant to the present case.] In there, Congress expanded military commissions beyond prosecuting violations of the generic “law of war.” In particular, for the phrase “law of war,” Congress listed specific war crimes that could be charged by military commission, including conspiracy and material support for terrorism.

Hamdan was charged anew after passage of the 2006 Military Commissions Act, and convicted of five instances of material support for terrorism. In August 2008, Hamdan was sentenced to 66 months’ imprisonment and released in late 2008. Hamdan appealed his conviction.

The U.S. Court of Appeals for the District of Columbia Circuit now reverses Hamdan’s conviction by the Court of Military Commission Review, and directs that Hamdan’s conviction for material support for terrorism be vacated. The reasons include: (1) the Military Commissions Act does not retroactively punish new crimes, and (2) “material support for terrorism” was not a pre‑existing war crime under 10 U.S.C. Section 821.

As a preliminary matter, the Court notes that this is a direct appeal of a conviction, thus it is not mooted by Hamdan’s release. The Court then addresses Hamdan’s arguments.

“Hamdan argues that Congress lacked authority under Article I of the Constitution—namely, the Define and Punish Clause—to define material support for terrorism as a war crime subject to trial by a U.S. military commission. Hamdan maintains that Congress’s authority under the Define and Punish Clause is limited to proscribing offenses that are already illegal under international law. And Hamdan contends that material support for terrorism is not a recognized international‑law war crime. [¼]

“Even assuming arguendo that Congress had authority under its various Article I war powers to establish material support for terrorism as a war crime in the Military Commissions Act of 2006, we conclude that the Act did not authorize retroactive prosecution for conduct that was committed before the Act’s enactment and was not prohibited by U.S. law at the time the conduct occurred. Here, Hamdan’s conduct occurred from 1996 to 2001—before enactment of the Military Commissions Act. And as we will explain, the federal statute in effect at the time of Hamdan’s conduct—10 U.S.C. § 821—did not authorize prosecution for material support for terrorism. [Slip op. 14‑16]

“To avoid the prospect of an Ex Post Facto Clause violation here, we interpret the Military Commissions Act of 2006 so that it does not authorize retroactive prosecution for conduct committed before enactment of that Act unless the conduct was already prohibited under existing U.S. law as a war crime triable by military commission. In this case, therefore, Hamdan’s conviction stands or falls on whether his conduct was prohibited by the pre‑existing statute, 10 U.S.C. § 821, at the time he committed the conduct.” [Slip op. 18]

“Analysis of this issue begins by determining what body of law is encompassed by the term ‘law of war’ in 10 U.S.C. § 821. The Supreme Court’s precedents tell us: The ‘law of war’ referenced in 10 U.S.C. § 821 is the international law of war. See Hamdan, 548 U.S. at 603 (plurality) (act is law of war offense when ‘universal agreement and practice both in this country and internationally’ recognize it as such) (internal quotation marks omitted) ¼” [Slip op. 19‑20]

“We turn, then, to the question whether material support for terrorism is an international‑law war crime.”

“It is true that international law establishes at least some forms of terrorism, including the intentional targeting of civilian populations, as war crimes. See, e.g., Rome Statute of the International Criminal Court art. 8(2)(b), July 17, 1998, 2187 U.N.T.S. 90; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva IV), art. 33, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; COMMISSION OF RESPONSIBILITIES, CONFERENCE OF PARIS 1919, VIOLATION OF THE LAWS AND CUSTOMS OF WAR 17 (Clarendon Press 1919) (the Allied Nations condemned Germany for ‘the execution of a system of terrorism’ after World War I).”

“But the issue here is whether material support for terrorism is an international‑law war crime. The answer is no. International law leaves it to individual nations to proscribe material support for terrorism under their domestic laws if they so choose. There is no international‑law proscription of material support for terrorism.”

“To begin with, there are no relevant international treaties that make material support for terrorism a recognized international‑law war crime. Neither the Hague Convention nor the Geneva Conventions—the sources that are ‘the major treaties on the law of war’—acknowledge material support for terrorism as a war crime. See Hamdan, 548 U.S. at 604 (plurality); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva IV), Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907, 36 Stat. 2277.”

“Nor does customary international law otherwise make material support for terrorism a war crime. Customary international law is a kind of common law; it is the body of international legal principles said to reflect the consistent and settled practice of nations. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987) (‘Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation’). It is often difficult to determine what constitutes customary international law, who defines customary international law, and how firmly established a norm has to be to qualify as a customary international law norm. Cf. Sosa v. Alvarez‑Machain, 542 U.S. 692 (2004).”

“But here, the content of customary international law is quite evident. Material support for terrorism was not a recognized violation of the international law of war as of 2001 (or even today, for that matter). As we have noted, the Geneva Conventions and the Hague Convention do not prohibit material support for terrorism. The 1998 Rome Statute of the International Criminal Court, which catalogues an extensive list of international war crimes, makes no mention of material support for terrorism. See Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90. Nor does the Statute of the International Tribunal for the Former Yugoslavia, the Statute of the International Tribunal for Rwanda, or the Statute of the Special Court for Sierra Leone. See Statute of the International Tribunal for the Former Yugoslavia, adopted by S.C. Res. 827, U.N. Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1159, 1192; Statute of the International Tribunal for Rwanda, adopted by S.C. Res. 955, U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598, 1602 (includes terrorism itself as a crime); Statute of the Special Court for Sierra Leone art. 3(d), Jan. 16, 2002, 2178 U.N.T.S. 138 (same). Nor have any international tribunals exercising common‑law‑type power determined that material support for terrorism is an international‑law war crime.” [¼]

“In short, neither the major conventions on the law of war nor prominent modern international tribunals nor leading international‑law experts have identified material support for terrorism as a war crime. Perhaps most telling, before this case, no person has ever been tried by an international‑law war crimes tribunal for material support for terrorism.” [¼]

“To be sure, there is a strong argument that aiding and abetting a recognized international‑law war crime such as terrorism is itself an international‑law war crime. And there are other similar war crimes. But Hamdan was not charged with aiding and abetting terrorism or some other similar war crime. He was charged with material support for terrorism.” [¼]

“In short, material support for terrorism was not an international‑law war crime under 10 U.S.C. § 821 at the time Hamdan engaged in the relevant conduct.”

“Because we read the Military Commissions Act not to sanction retroactive punishment for new crimes, and because material support for terrorism was not a pre‑existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the decision of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.” [Slip op. 21‑28]

Citation: Hamdan v. United States, No. 11‑1257 (D.C. Cir. December 16, 2012).

SURVEILLANCE

U.S. Supreme Court rejects challenge to Foreign Intelligence Surveillance Act (FISA) for lack of standing; reverses Second Circuit’s finding of standing where there (a) is objectively reasonable likelihood that communications will be intercepted in the future, and (b) are present injuries stemming from a reasonable fear of future harmful government conduct

In the following case, the U.S. Supreme Court rejects the challenge brought by Amnesty International (and several other parties) to Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. Section 1881a. Section 1881a was added by the FISA Amendments Act of 2008, and permits the Attorney General and the Director of National Intelligence to obtain foreign intelligence information by jointly authorizing the surveillance of individuals who are not “U.S. persons” and who are reasonably believed to be outside the U.S. Such surveillance usually requires advance approval by the Foreign Intelligence Surveillance Court (FISC).

Several U.S. parties, human rights organizations and attorneys (“Respondents”), claim that they are likely to engage in communications with international individuals who may be targeted by Section 1881a. The District Court for the Southern District of New York found that the Respondents lacked standing. The U.S. Court of Appeals for the Second Circuit reversed because Respondents showed an “objectively reasonable likelihood” that their communications will be intercepted, and that they are suffering present injuries because of costly and burdensome measures they have to take to protect their communications from Section 1881a surveillance.

The U.S. Supreme Court granted certiorari and now finds that the Respondents lack Article III standing. The opinion was written by Justice Alito, joined by Roberts, C.J., Scalia, Kennedy and Thomas.

The Court sums up its finding at the very beginning of the opinion.

“Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the well‑established requirement that threatened injury must be ‘certainly impending.’ ¼ And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of §1881a‑authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing.” [Slip op. 5]

The Court then describes the framework of foreign intelligence surveillance.

“¼Congress created two specialized courts. In FISA, Congress authorized judges of the Foreign Intelligence Surveillance Court (FISC) to approve electronic surveillance for foreign intelligence purposes if there is probable cause to believe that ‘the target of the electronic surveillance is a foreign power or an agent of a foreign power,’ and that each of the specific ‘facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.’ §105(a)(3), 92 Stat. 1790; see §§105(b)(1)(A), (b)(1)(B), ibid. ¼ Additionally, Congress vested the Foreign Intelligence Surveillance Court of Review with jurisdiction to review any denials by the FISC of applications for electronic surveillance. §103(b), 92 Stat. 1788 ¼”

“In the wake of the September 11th attacks, President George W. Bush authorized the National Security Agency (NSA) to conduct warrantless wiretapping of telephone and e‑mail communications where one party to the communication was located outside the United States and a participant in ‘the call was reasonably believed to be a member or agent of al Qaeda or an affiliated terrorist organization,’ ¼ In January 2007, the FISC issued orders authorizing the Government to target international communications into or out of the United States where there was probable cause to believe that one participant to the communication was a member or agent of al Qaeda or an associated terrorist organization. ¼ These FISC orders subjected any electronic surveillance that was then occurring under the NSA’s program to the approval of the FISC. ¼ After a FISC Judge subsequently narrowed the FISC’s authorization of such surveillance, however, the Executive asked Congress to amend FISA so that it would provide the intelligence community with additional authority to meet the challenges of modern technology and international terrorism. ¼”

“When Congress enacted the FISA Amendments Act of 2008 (FISA Amendments Act), 122 Stat. 2436, it left much of FISA intact, but it ‘established a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.’ ¼ As relevant here, §702 of FISA, 50 U.S.C. §1881a (2006 ed., Supp. V), which was enacted as part of the FISA Amendments Act, supplements pre‑existing FISA authority by creating a new framework under which the Government may seek the FISC’s authorization of certain foreign intelligence surveillance targeting the communications of non‑U.S. persons located abroad. Unlike traditional FISA surveillance, §1881a does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power. Compare §§1805(a)(2)(A), (a)(2)(B), with §§1881a(d)(1), (i)(3)(A) ¼ And, unlike traditional FISA, §1881a does not require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur. Compare §§1805(a)(2)(B), (c)(1) (2006 ed. and Supp. V), with §§1881a(d)(1), (g)(4), (i)(3)(A) ¼” [Slip op. 6‑8] (footnotes omitted)

The Court then elaborates on its finding that the Respondents lack standing.

“Respondents assert that they can establish injury in fact that is fairly traceable to §1881a because there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under §1881a at some point in the future. This argument fails. As an initial matter, the Second Circuit’s ‘objectively reasonable likelihood’ standard is inconsistent with our requirement that ‘threatened injury must be certainly impending to constitute injury in fact.’ ¼ Furthermore, respondents’ argument rests on their highly speculative fear that: (1) the Government will decide to target the communications of non‑U.S. persons with whom they communicate; (2) in doing so, the Government will choose to invoke its authority under §1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government’s proposed surveillance procedures satisfy §1881a’s many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of respondents’ contacts; and (5) respondents will be parties to the particular communications that the Government intercepts. As discussed below, respondents’ theory of standing, which relies on a highly attenuated chain of possibilities, does not satisfy the requirement that threatened injury must be certainly impending. ¼ Moreover, even if respondents could demonstrate injury in fact, the second link in the above‑described chain of contingencies—which amounts to mere speculation about whether surveillance would be under §1881a or some other authority—shows that respondents cannot satisfy the requirement that any injury in fact must be fairly traceable to §1881a.”

“First, it is speculative whether the Government will imminently target communications to which respondents are parties. Section 1881a expressly provides that respondents, who are U.S. persons, cannot be targeted for surveillance under §1881a. See §§1881a(b)(1)‑(3) ¼ Accordingly, it is no surprise that respondents fail to offer any evidence that their communications have been monitored under §1881a, a failure that substantially undermines their standing theory. ¼ Indeed, respondents do not even allege that the Government has sought the FISC’s approval for surveillance of their communications. Accordingly, respondents’ theory necessarily rests on their assertion that the Government will target other individuals—namely, their foreign contacts.”

“Yet respondents have no actual knowledge of the Government’s §1881a targeting practices. Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under §1881a. ¼ For example, journalist Christopher Hedges states: ‘I have no choice but to assume that any of my international communications may be subject to government surveillance, and I have to make decisions . . . in light of that assumption.’ ¼ Similarly, attorney Scott McKay asserts that, ‘[b]ecause of the [FISA Amendments Act], we now have to assume that every one of our international communications may be monitored by the government.’ ¼ ‘The party invoking federal jurisdiction bears the burden of establishing’ standing—and, at the summary judgment stage, such a party ‘can no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’’ ¼ Respondents, however, have set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted. Moreover, because §1881a at most authorizes—but does not mandate or direct—the surveillance that respondents fear, respondents’ allegations are necessarily conjectural. ¼ Simply put, respondents can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target.”

“Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, respondents can only speculate as to whether the Government will seek to use §1881a‑authorized surveillance (rather than other methods) to do so. The Government has numerous other methods of conducting surveillance, none of which is challenged here. Even after the enactment of the FISA Amendments Act, for example, the Government may still conduct electronic surveillance of persons abroad under the older provisions of FISA so long as it satisfies the applicable requirements, including a demonstration of probable cause to believe that the person is a foreign power or agent of a foreign power. See §1805. The Government may also obtain information from the intelligence services of foreign nations. ¼ And, although we do not reach the question, the Government contends that it can conduct FISA‑exempt human and technical surveillance programs that are governed by Executive Order 12333. See Exec. Order No. 12333, §§1.4, 2.1‑2.5, 3 CFR 202, 210‑212 (1981), reprinted as amended, note following 50 U.S.C. §401, pp. 543, 547‑548. Even if respondents could demonstrate that their foreign contacts will imminently be targeted—indeed, even if they could show that interception of their own communications will imminently occur—they would still need to show that their injury is fairly traceable to §1881a. But, because respondents can only speculate as to whether any (asserted) interception would be under §1881a or some other authority, they cannot satisfy the ‘fairly traceable’ requirement.”

“Third, even if respondents could show that the Government will seek the Foreign Intelligence Surveillance Court’s authorization to acquire the communications of respondents’ foreign contacts under §1881a, respondents can only speculate as to whether that court will authorize such surveillance. In the past, we have been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment. In Whitmore, for example, the plaintiff ‘s theory of standing hinged largely on the probability that he would obtain federal habeas relief and be convicted upon retrial. In holding that the plaintiff lacked standing, we explained that ‘[i]t is just not possible for a litigant to prove in advance that the judicial system will lead to any particular result in his case.’ ¼”

“We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors. Section 1881a mandates that the Government must obtain the Foreign Intelligence Surveillance Court’s approval of targeting procedures, minimization procedures, and a governmental certification regarding proposed surveillance. §§1881a(a), (c)(1), (i)(2), (i)(3). The Court must, for example, determine whether the Government’s procedures are ‘reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons.’ §1801(h); see §§1881a(i)(2), (i)(3)(A). And, critically, the Court must also assess whether the Government’s targeting and minimization procedures comport with the Fourth Amendment. §1881a(i)(3)(A).”

“Fourth, even if the Government were to obtain the Foreign Intelligence Surveillance Court’s approval to target respondents’ foreign contacts under §1881a, it is unclear whether the Government would succeed in acquiring the communications of respondents’ foreign contacts. And fifth, even if the Government were to conduct surveillance of respondents’ foreign contacts, respondents can only speculate as to whether their own communications with their foreign contacts would be incidentally acquired.”

“In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to §1881a.” [Slip op 13‑18] (footnotes omitted)

The Respondents’ alternative argument receives similar treatment.

“Respondents’ alternative argument—namely, that they can establish standing based on the measures that they have undertaken to avoid §1881a‑authorized surveillance—fares no better. Respondents assert that they are suffering ongoing injuries that are fairly traceable to §1881a because the risk of surveillance under §1881a requires them to take costly and burdensome measures to protect the confidentiality of their communications. Respondents claim, for instance, that the threat of surveillance sometimes compels them to avoid certain e‑mail and phone conversations, to ‘tal[k] in generalities rather than specifics,’ or to travel so that they can have in‑person conversations. ¼ The Second Circuit panel concluded that, because respondents are already suffering such ongoing injuries, the likelihood of interception under §1881a is relevant only to the question whether respondents’ ongoing injuries are ‘fairly traceable’ to §1881a. ... Analyzing the ‘fairly traceable’ element of standing under a relaxed reasonableness standard, ¼ the Second Circuit then held that ‘plaintiffs have established that they suffered present injuries in fact—economic and professional harms—stemming from a reasonable fear of future harmful government conduct,’ ¼”

“The Second Circuit’s analysis improperly allowed respondents to establish standing by asserting that they suffer present costs and burdens that are based on a fear of surveillance, so long as that fear is not ‘fanciful, paranoid, or otherwise unreasonable.’ ¼ This improperly waters down the fundamental requirements of Article III. Respondents’ contention that they have standing because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing—because the harm respondents seek to avoid is not certainly impending. In other words, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending. ¼ Any ongoing injuries that respondents are suffering are not fairly traceable to §1881a.” [Slip op. 19‑20] (footnotes omitted)

In conclusion, the Respondents lack Article III standing because they failed to show that the future injury is certainly impending. Further, they cannot manufacture standing by incurring cost in anticipation of non‑imminent harm. Thus, the U.S. Supreme Court reverses the Second Circuit.

Justice Breyer wrote a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan join. The dissenters find that at least some of the Respondents have standing.

“The plaintiffs’ standing depends upon the likelihood that the Government, acting under the authority of 50 U.S.C. §1881a (2006 ed., Supp. V), will harm them by intercepting at least some of their private, foreign, telephone, or e‑mail conversations. In my view, this harm is not ‘speculative.’ Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen. This Court has often found the occurrence of similar future events sufficiently certain to support standing. I dissent from the Court’s contrary conclusion.” [Slip. op. 28]

Citation: Clapper v. Amnesty International USA, 568 U.S. ______, No. 11‑1025 (U.S. Supreme Court, February 26, 2013).

TOPICS IN BRIEF

U.S. Supreme Court holds that Torture Victim Protection Act (TVPA) does not impose liability against organizations. While visiting the West Bank, Azzam Rahim (U.S. citizen) was allegedly arrested by Palestinian Authority officers and ultimately killed. Rahim’s relatives sued the Palestinian Authority and the Palestinian Liberation Organization under the Torture Victim Protection Act of 1991 (TVPA) [cause of action against an individual for acts of torture and extrajudicial killing committed under authority or color of law of any foreign nation. See 106 Stat. 73, note following 28 U.S.C. § 1350]. The District Court dismissed because the TVPA’s authorization of suit against an “individual” extended liability only to natural persons. The District of Columbia Circuit affirmed. The U.S. Supreme Court granted certiorari and found that, as used in the TVPA, the term ‘individual’ encompasses only natural persons. Thus, the TVPA does not impose liability against organizations. The ordinary, everyday meaning of “individual” refers to a human being, not an organization. Congress does not employ the word any differently. The TVPA’s liability provision uses the word “individual” five times in the same sentence (TVPA § 2(a)). Since only a natural person can be a victim of torture or extrajudicial killing, Congress obviously did not use “individual” four times in the same sentence to refer to a natural person and once to refer to a natural person or an organization. Congress clearly did not intend TVPA to apply to organizations. While TVPA contemplates liability against officers who do not personally execute the torture or extrajudicial killing, it does not follow that the TVPA embraces liability against nonsovereign organizations. Citation: Mohamad v. Palestinian Authority et. al., 132 S.Ct. 1702; 1182 L.Ed.2d 720; 80 USLW 4339 (U.S. Sup.Ct. 2012).

French Supreme Court rules on intermediary liability for copyright infringement. The French Supreme Court (Cour de Cassation) has issued four opinions about the role of online service providers in guarding against online copyright infringements. The case of SNEP vs. Google France may lead Google to censor its “auto‑complete feature” (which automatically suggests commonly‑used terms associated with the queries submitted by users). The French phonographic industry lobby (SNEP) had sued Google for providing search suggestions such as “Torrent”, “Megaupload” and “Rapidshare” when users typed the names of artists or music groups into the Google search bar. Those suggestions are associated with online copyright infringement. SNEP’s request that Google stop suggesting such terms was rejected by both the Court of First Instance and the Appellate Court. While such online services could be used to infringe copyrights, they were not illegal in themselves. The French Supreme Court reversed the lower rulings. The Court held that Google’s autocomplete feature actually “provided the means to infringe copyright and related rights.” SNEP’s request could in fact “prevent or terminate such infringements.” The Court remanded to the lower court. Note that this ruling came six months after Google decided to voluntarily remove “Rapidshare”, “uTorrent” and “MegaUpload” from its Google Suggest service. | In three other separate but similar opinions, the French Supreme Court upheld the rights of Internet users and service providers against the claims of right holders. The Court’s decisions in these cases end the “notice and staydown” injunctions in France, which were becoming increasingly popular in courts. “Notice and staydown” injunctions prevent internet users from publishing content that has already been notified and taken down (thus “notice and staydown”, as opposed to the traditional “notice and takedown”). In all three cases, the appeals court had ruled that Google did not adopt adequate measures to prevent the re‑indexation of infringing videos and images of which Google had been notified and which Google had removed. The French Supreme Court did not find online service providers under the obligation to prevent any future infringements. The three appellate rulings violated EU and French law by imposing “a general obligation to monitor” Google’s content. Google would have to implement a “blocking mechanism with no limitation in time”, which would be “disproportionate to the pursued aim.” While European Court of Justice (ECJ) recently rejected blocking measures based on five cumulative criteria in the Netlog vs. SABAM case, the French Supreme Court finds the “no limitation in time” criterion alone sufficient to make the blocking measures disproportionate. Citation: French Supreme Court decisions (so far published only in French), SNEP vs. Google France (12.07.2012); Bac Films vs. Google France and Inc (1& 2) (12.07.2012); and André Rau vs. Google & AuFeminin.com (12.07.2012)