First Circuit Argument Weighs Constitutionality of TVPA

 

The plaintiffs, with permission of

Center for Justice and Accountability

Last month, the First Circuit (Judge Lara Montecalvo, presiding, with retired Justice Stephen Breyer and Senior Judge Sandra Lynch) heard oral argument in Boniface v. Viliena. Viliena, a Haitian national who has been a legal permanent resident of the United States since 2008, is challenging a $15.5 million jury award under the Torture Victim Protection Act (TVPA). The jury found Viliena responsible for the murder of one plaintiff’s brother and for the abuse of the other two plaintiffs in Haiti.

At oral argument, Viliena’s counsel blurred together questions of subject-matter jurisdiction, prescriptive jurisdiction, congressional power, and the law of nations to suggest that the district court impermissibly applied U.S. law to Viliena’s conduct in Haiti.  An amicus brief filed by TLB Editor Bill Dodge and others sought to untangle and clarify these distinct doctrinal questions, as did Bill’s helpful prior post regarding Viliena’s appeal. Today’s post addresses points of confusion that surfaced during the oral argument and attempts to distinguish the doctrinal questions that are clear cut from those that are less so.

Torture Under Customary International Law

Viliena’s primary argument on appeal seems to be that the TVPA, if interpreted to reach the facts of this case, exceeds Article I’s grant of authority to Congress “define and punish … Offenses against the Law of Nations.” As an initial matter, there is no doubt that customary international law prohibits torture and permits states to exercise universal jurisdiction over torture, at least in terms of criminal prosecution.

Universal Criminal Jurisdiction

As the Restatement (Fourth) of the Foreign Relations Law of the United States § 413 explains:

International law recognizes a state’s jurisdiction to prescribe law with respect to certain offenses of universal concern, such as genocide, crimes against humanity, war crimes, certain acts of terrorism, piracy, the slave trade, and torture, even if no specific connection exists between the state and the persons or conduct being regulated.

Comment 2 elaborates that “[m]any states have provisions in their criminal statutes exercising universal jurisdiction” over these offenses, including torture. The Convention Against Torture (CAT) requires states parties, which includes the United States, to criminalize “all acts of torture” (including “attempt to commit torture” and acts “which constitute[] complicity or participation in torture”) and to either prosecute or extradite any alleged torturer found within its territory. As Justice Breyer summarized in his partial concurrence in Sosa v. Alvarez-Machain (2004), universal jurisdiction exists today to prosecute “torture, genocide, crimes against humanity, and war crimes” (a point he tried gently to raise at oral argument in Boniface).

Universal Civil Jurisdiction?

As Justice Breyer’s Sosa opinion also noted, however, there may be a difference between criminal and civil universal jurisdiction. The Restatement (Fourth), in the comments and reporters’ notes for § 413, similarly acknowledges that there is some disagreement about the permissibility of universal civil jurisdiction. There are nonetheless several good reasons to conclude that customary international law permits states to provide civil remedies for torture based on universal jurisdiction.

First, “customary international law does not make a clear distinction between criminal and civil jurisdiction” (Restatement (Fourth) § 413, cmt. d), nor do the laws of many countries. As Justice Breyer explained in his Sosa opinion, because “the criminal courts of many nations combine civil and criminal proceedings,” the “consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening.” “Thus,” Justice Breyer concluded, “universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well.”

Second, Article 14 of the CAT states that:

Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants [sic] shall be entitled to compensation.

When it ratified the CAT, the United States declared that it understands this Article to “require[] a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.” But narrowing the United States’ obligation to provide a remedy under Article 14 implies a broader permission to provide a remedy in additional cases.

Third, customary international law is in fact quite permissive when it comes to the exercise of prescriptive jurisdiction. As the Restatement (Fourth) summarizes in § 402, “[c]ustomary international law permits exercises of prescriptive jurisdiction if there is a genuine connection between the subject of the regulation and the state seeking to regulate.” Further, “[i]n the case of universal jurisdiction, the genuine connection rests on the universal concern of states in suppressing certain offenses.”

In short, customary international law does not prohibit universal civil jurisdiction for torture. Given the clarity of Congress’s language in the TVPA and in light of the CAT, it makes little sense to stretch to find a new prohibition in customary international law that would render unconstitutional a thirty-year-old congressional statute.

The Language of the TVPA

Accepting that torture is subject to universal criminal jurisdiction and that the law of nations does not prohibit countries from providing civil redress for such offenses, Congress did not exceed its enumerated powers when adopting the TVPA. The next question, then, is what Congress actually did when it exercised its authority under the Offenses Clause, which is a matter of statutory interpretation.

First, cases limiting the scope of the Alien Tort Statute (ATS) are irrelevant to determining the scope of the TVPA. The ATS requires courts to imply rights of action, which (as Justice Souter explained in Sosa) requires extra circumspection and consideration of comity. With the TVPA, Congress explicitly created the cause of action. Congress, in other words, has weighed the political and comity considerations itself. All that is left for the courts to do is to implement Congress’s decision.

Second, as the Second Circuit, Eleventh Circuit, and other courts have held, the TVPA rebuts the presumption against extraterritoriality. It creates a cause of action against “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation,” subjects another to torture or extrajudicial killing. It is hard to imagine a scenario in which an individual could engage in such activity within the United States while acting under the authority of a foreign nation—or at least, the rarity of such a scenario renders implausible a reading of the TVPA that limits it to U.S. territory. The statute’s legislative history also makes clear that Congress had in mind torture and extrajudicial killings committed outside of the United States. As the Supreme Court has emphasized, the presumption against extraterritoriality is not a clear statement rule; the TVPA’s limitation to individuals acting under the authority of foreign nations is the requisite “clear indication” that Congress meant the TVPA to reach conduct outside the United States.

That still leaves Viliena’s arguments that the TVPA does not cover aiding and abetting liability, attempted torture or extrajudicial killing, or punitive damages. Those statutory arguments are beyond the scope of this post (though the Ninth Circuit has recently held that the TVPA does cover aiding and abetting liability). Regardless of how the panel resolves these questions of scope, it seems clear that the TVPA is constitutional and reaches extrajudicial killings and acts of torture committed in other countries.

Potential Red Herrings

A few points were raised at oral argument that might confuse or distract from these relatively straightforward conclusions.

First, there is no question of the federal courts’ subject-matter jurisdiction over this case. By pleading TVPA claims, the plaintiffs properly invoked federal question jurisdiction under 28 U.S.C. § 1331. The debate is instead over the constitutionality and scope of the TVPA, which is a merits question.

Second, Viliena argued that the Offenses Clause only covers violations of the law of nations recognized in 1789 (which would not include torture). The amicus brief explains why treating the Offenses Clause as statically incorporating the law of nations as it existed in 1789 is wrong as an originalist matter and would conflict with centuries of prior practice. More simply, Sosa ruled out this approach when it recognized that the ATS might cover more offenses today than it did when that provision was adopted. In other words, Sosa assumed that the Offenses Clause’s incorporation of international law (which in turn is incorporated in the ATS) is dynamic, rather than limited to the law of the eighteenth century.

Third, Section 403 of the Restatement (Third) of Foreign Relations Law is not relevant. Section 403, which was never embraced by the Supreme Court, has been abandoned by the new Restatement (Fourth) of Foreign Relations Law. Even if Section 403 were still considered good law, it is not applicable to universal jurisdiction, for which there should be no conflict with the laws of other nations and over which all nations may reasonably assert prescriptive jurisdiction.

Fourth, Viliena’s counsel suggested that the courts of Haiti were open to the plaintiffs and that the plaintiffs simply didn’t like the judgments they were able to secure there. As a factual matter, my understanding is that the plaintiffs were not able to secure a judgment against Viliena in Haiti. More generally, however, other comity doctrines address such cases. If there were a prior case in Haiti against Viliena, he could raise a defense of preclusion or argue for abstention based on parallel foreign proceedings. Viliena’s arguments about the inappropriateness of a U.S. forum might also sound in forum non conveniens. Whether the federal courts should decline to hear this case as a prudential matter is a separate question from whether they have the authority to hear it. And as a prudential matter, declining jurisdiction now that this case has progressed all the way to a jury verdict would be an extreme waste of judicial resources, not to mention unfair to plaintiffs, who have litigated this case for almost a decade.