Free Markets, Free People


An Arrogancy of Jurisdiction

Suppose I told you that there is an organization which claims to have worldwide jurisdiction (literally, “where the law speaks”) over all matters of criminal law and justice, regardless of who a person is? No I’m not referring to the ICC, but instead to the Obama administration.

The Obama administration is considering a criminal trial in Washington for the Guantanamo Bay detainee suspected of masterminding the bombing of a Bali nightclub that killed 202 people, a plan that would bring one of the world’s most notorious terrorism suspects just steps from the U.S. Capitol, The Associated Press has learned.

Riduan Isamuddin, better known as Hambali, was allegedly Osama bin Laden’s point man in Indonesia and, until his capture in August 2003, was believed to be the main link between al-Qaida and Jemaah Islamiyah, the terror group blamed for the 2002 bombing on the island of Bali.

It’s not readily apparent what charges would be brought against Hambali, but a real question exists as to exactly what power our civil judicial system would have over him. In order to pass judgment on anyone, a court must have personal jurisdiction over the defendant, which essentially means that he has some nexus with the place where his trial takes place. With respect to Khalid Sheikh Mohammed, there is at least a good argument that his alleged activities with respect to the 9/11 attacks and the World Trade Center bombings creates a connection with the court of record in New York City. In contrast, Hambali does not, as far as anyone has alleged, have any connection whatsoever with the District of Columbia, nor with anywhere else in the United States. So on what basis can a DC court claim to have any power over his person?

Yet that’s just what the Obama administration proposes to do. It is considering trying Hambali in a federal civil court, supposedly for his terrorist actions (which are legion, to be sure) elsewhere in the world. Most famously, Hambali is thought to be the mastermind behind the devastating bombings in Bali back in 2002. But Bali is in Indonesia, not the United States. Indeed, Jemaah Islamiya, of which Hambali is known to be the operations coordinator and chief liason to al Qaeda regarding its Southeast Asia conquests, has not been alleged to be involved in any actions in America or her protectorates. All of which should lead to the inexorable conclusion that our federal courts have no jurisdiction over Hambali.

Perhaps no real harm would come from a court reaching such a decision. It wouldn’t lead to a release of the prisoner, necessarily, since the question of guilt or innocence would never be addressed. But what if, instead, a ruling is made that there is personal jurisdiction over Hambali? Stranger things have happened — witness the vast expansion of judicial power created in Boumediene v. Bush, where the Supreme Court found that its jurisdiction for habeas corpus purposes extended to any person within America’s exclusive control. Should a DC court find it does have personal jurisdiction over a person who has no connection to America except for being captured by her soldiers, that would be paramount to declaring American law and jurisprudence the law of every land. In other words, we would be claiming that our laws “speak” everywhere and for everyone, whether you like it or not.

If you are inclined to believe that holding enemy combatants at GITMO directly aids al Qaeda’s recruitment efforts, how do you think the terrorist organization and her adherents will take to our claim that they, and everyone else in the world, are subject to our civil laws? How will the rest of the world view such an arrogant statement? Beyond satisfying some petty political aims, by taking such a misguided step as this the Obama administration is not doing the U.S. any favors, and is likely damaging our interests.

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26 Responses to An Arrogancy of Jurisdiction

  • Well, why not?  After all, some Euro countries claim that their courts have jurisdiction over people Americans and Israelis who have allegedly committed crimes outside their borders and not against their own citizens.  Globalization comes to the legal community!

    Seriously, though, we face a real problem with dealing with terrorism not only because there is disagreement over whether it is an act of war or a criminal act, but also over how to deal with terrorists when they are caught.  If their acts are considered acts of war, then should they be covered by the Geneva Conventions?  How should they be tried (if at all)?  If they are criminals, then what rights have they got?  Do we even have legal power to try them at all?  Congress has done little to clear up these issues, being too busy investigating steroid use in baseball and trying to take over the health care system.

    Tell me again why we pay these clowns?

  • More of the line blurring they’ve been practicing, reading ‘prisoners’ Miranda rights’ in Afghanistan, treating foreign nationals as if they have rights under the Constitution of the United States of America.  Also part and parcel with the trend we have of sending the FBI abroad to investigate crimes that occur in foreign countries.
    We’re WAY over the line, and I thought the Constitution strictly prohibited EXACTLY this sort of behavior – do I misunderstand the 11th Amendment?
    The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

    • Actually the 11th Amendment is just an assertion of the States immunity from suit — i.e. the federal judicial power does not extend to suits brought against any State.  It was drafted to overrule the decision made in Chisholm v. Georgia.

      • Thank you, I thought I was getting it wrong when I re-read it after pondering McQ’s post.

        • … McQ’s post

          I’m hurt, looker.  Deeply and truly.

          • Wow
            Look, there’s some lovely dandelions out here in left field.
            Honestly Michael, I have no excuse that’s even plausible that I care to make at this time (in short, I’m a dumbass).

  • Well, he promised change, didn’t he?

    • These various trials are going to create a “pants-load” of case law that future Presidents will curse Obama daily for creating.  Frankly, the more Obama and Holder torture the legal system, the more they look out of their league.

  • Well, there is an easy way around the problem, and it’s something we should have done years ago in any case. We should declare the terrorists to be equivalent to pirates, and thus subject to universal jurisdiction. (Not just ours, everyone’s, as enemies of all humanity.)
    Second, we should revive the practice of granting parole. We want to be able to capture terrorists instead of killing them, as a general rule (because it’s often safer, and we can often get intel out of it), and they don’t tend to surrender if they think they’ll be killed anyway. So when we capture terrorists, if they are not high ranking, we should offer them parole after holding them for a while and questioning them, where we release them on the condition that they stop making war against the US. If they refuse, no one can really say we’re wrong to hold someone who vows to attack us if we release him. Further, if he’s recapture after violating that parole, we are on solid legal ground to either hold him indefinitely or kill him outright. Best case, we remove a terrorist from the pool, with considerably less second-guessing. Worst case, we remove a terrorist from the pool a little later, and with considerably less second-guessing.
    I think it’s a shame that we’ve forgotten our history to this extent, because we’ve had to deal (both the US, and the West in general) with these exact kinds of threats before, and we’ve done so quite well. But our current doctrines are blinding us to ways of self-defense that have worked admirably in the past.
     

    • We should declare the terrorists to be equivalent to pirates, and thus subject to universal jurisdiction.

      If you’re referring to the Barbary Wars, we never made any claim to dealing with the pirates as a criminal matter tried in civil courts but instead as enemies via a (weakly) authorization to make war against the Barbary States.  We certainly never made any claim to having “universal jurisdiction” over anyone, and such would have been anathema to our nation’s founders, and the first several generations.

      • Actually, I was referring to a convention among European nations (informal, I think; I’m not aware of a treaty) that was older than the US, actually. There are examples of universal jurisdiction on piracy dating to at least 1705, and maybe earlier. Also, I seem to remember hearing that the UN’s Convention on the Laws of the Sea codifies universal jurisdiction for piracy in modern form.

  • Jurisdiction is established by the legislative branch and is an internal classification system.  It is not some basis of power that is inherent in the judiciary itself.  If the legislature wishes to expand or contract a court’s jurisdiction – provided at the federal level it does not run afoul of its Constitutional restrictions – it is free to do so.

    Since at least 1986 we have had a criminal provision on the books in 18 USC 2332 that grants American federal courts jurisdiction over any person that a) kills an American national while b) in an attempt to intimidate the government or populace.  So it’s really nothing new, and the DC circuit would certainly have been given the requisite authority to do so by Congress.

    Now whether we should grant such authority is a different matter.  But this grant of jurisdiction is what has been used to prosecute the nearly 600 foreign nationals convicted of terrorism related offenses since 2007 alone.  This is nothing new.  So the Obama administration’s decision is whether to use the authority, not whether it has it.

    I think I just defended Obama.  I need a shower.

    • Jurisdiction is established by the legislative branch and is an internal classification system.  It is not some basis of power that is inherent in the judiciary itself.  If the legislature wishes to expand or contract a court’s jurisdiction – provided at the federal level it does not run afoul of its Constitutional restrictions – it is free to do so.

      True, to an extent.  I mean Congress could declare that the entire world is within it’s purview, but that wouldn’t necessarily make it so.

      Since at least 1986 we have had a criminal provision on the books in 18 USC 2332 that grants American federal courts jurisdiction over any person that a) kills an American national while b) in an attempt to intimidate the government or populace.  So it’s really nothing new, and the DC circuit would certainly have been given the requisite authority to do so by Congress.

      Again, just because Congress declares so, doesn’t make so.  However, at least with respect to an American citizen being deliberately targeted there is some justification for claiming jurisdiction.  How’s that going to work with a terrorist whose territory is exclusively in Southeast Asia and hasn’t been connected to any acts in America or against Americans?  If the court were to take jurisdiction over such a case, it sends the message that America rules the world.

      Now whether we should grant such authority is a different matter.  But this grant of jurisdiction is what has been used to prosecute the nearly 600 foreign nationals convicted of terrorism related offenses since 2007 alone.  This is nothing new.  So the Obama administration’s decision is whether to use the authority, not whether it has it.

      Again, I don’t see where any government can legitimately claim to have civil, legal authority over the subjects of other countries who have committed no specific acts against America or her citizens.

      I think I just defended Obama.  I need a shower.

      I think you’re defending the rule of law, not Obama, if that helps you ;)

      • I didn’t do a very good job in the original post of differentiating between a couple of concepts that were merged in the original post.  Specifically, 18 U.S.C. 2332 only applies to acts against Americans and when the AG certifies that the acts were done in a broader attempt to intimidate the public.  So the American element would be present in any prosecution.  Personal jurisdiction and subject matter jurisdictions are two separate concepts.

        I am asserting  that jurisdiction itself is defined by the legislative branch, so long as it stays within the bounds of the Fifth Amendment.  The Courts clearly have jurisdiction here as set forth by the legislature, the question is whether they should.  The original post suggested that perhaps the Courts did not have personal jurisdiction over a particular person, even though that person may be in United States custody.  It seemed concluded from this fact that the courts would be forced to throw the mentioned case out on a jurisdictional ground.  That is simply not true.

        So my inartfully made point was that the argument here is really whether we should even have a statute that permits the Courts to take jurisdiction over the subject matter.  (But if you argue that the US should not have jurisdiction over actions that occured on foreign soil, you pretty clearly have to argue that there is a rather large Cuban prison that should be shut down.)  As far as personal jurisdiction goes, that is an element peculiar to civil law.  Personal jurisdiction in a criminal case is simply acheived through the execution of the warrant.

        • TW:

          You’ve gotta good point there.  Maybe I am conflating  personal and subject matter jurisdiction.  I was so focused on the lack of any nexus between the defendant (Hambali) and America that I may have strayed into territory I shouldn’t have.

          You’re right, of course, that subject matter jurisdiction would seem to be the target of what’s lacking here, but IMHO it would also be much easier to establish for the reasons you described (i.e. Congress has wide latitude in this area).  Personal jurisdiction requires some sort of connection to the forum, and I don’t see how a man whose “crimes” have not been specifically aimed at, nor committed in, the supposed home jurisdiction could possibly be brought before the court in any legal manner.  Do you disagree (and, if so, please enlighten me, seeing as this isn’t really my area of expertise)?

          • It’s really a no-win situation, I suppose.  I see (and agree with many of) the inherent arguments against snatching up foreign nationals for trial in the U.S.  It is just contrary to the human intellect. 

            But it is equally repugnant to imagine a foreign national sitting in a cave somewhere in, oh say, Pakistan ordering the execution of attacks against American civilians abroad.  If you do not create a cause of action available in your own jurisdiction, you’re at the mercy of those foreign jurisictions who have the more logical nexus.  In that case, I don’t think any of us wants to rely on the Pakistanis to administer justice.

            As for the case at hand, I agree that it seems nonsensical to prosecute the Bali bombings in America.  However, the line of thinking is probably the same as above.  It’s not like the locals are going to do anything about it.

            An imperfect solution to say the least.  But under the terrorism statutes, perfectly permissible if you can capture the guy.

          • But it is equally repugnant to imagine a foreign national sitting in a cave somewhere in, oh say, Pakistan ordering the execution of attacks against American civilians abroad.

            Which is why I contrasted Hambali’s case with that of KSM.  In one case you have no plotting or execution of plots against Americans, while in the other you have clear transgressions directed at both.  Whether someone is “in a cave somewhere” doing anything at all would seem to be beyond our civil system, and much better addressed in any case by our military.  Arrogating such individuals to the judicial and/or legislative power seems neither consistent with the rule of law as established in this country, nor desirable as a matter of course.

            If you do not create a cause of action available in your own jurisdiction, you’re at the mercy of those foreign jurisdictions who have the more logical nexus.  In that case, I don’t think any of us wants to rely on the Pakistanis to administer justice.

            That’s a great point, but one that I think militates against using our civil judicial system to deal with these people.  Indeed, it was the premise behind George W. Bush’s warning “You’re either with us, or with the terrorists,” in making his case for treating terrorist actions as those of war.  If the argument is that the USMJ (or Geneva Conventions, or whatever) is inadequate to the task, then lets deliberatively change them as necessary.  But the ability of Congress to ipse dixit create jurisdiction doesn’t justify treating those who would otherwise be enemies of the nation as common criminals who are given every advantage against the state’s prosecution of them.  I’ll admit that my approach may be overly simplistic, but it seems apparent to me that those who notoriously live outside our system of laws, and claim no benefit of them, should not be treated the same as those who openly submit to those laws, but knowingly (in the legal sense) transgress those laws while claiming their protection.  In one case, we are dealing with acts of war, while the other deals with a common criminal situation.

            An imperfect solution to say the least.  But under the terrorism statutes, perfectly permissible if you can capture the guy.

            Again, I’m not so sure.  While your point about relying on suspect judicial systems is well taken, I think it just underscores the idea that these sorts of persons should not be subject to our civil laws but to our military prowess.

  • So if this is so arrogant, then what does it say about our military being able to capture whomever it wishes and hold them indefinitely without redress?

    • Contemplate the difference between military and civil, Pogue and you will arrive at the answer.

       

      BTW, it’s been awhile, where the hell you been?  Can’t be that many bees in TX.

      • Yes, but we’re talking about the same douchebag, right?  Hambali.

        The same guy who you describe as,

        It’s not readily apparent what charges would be brought against Hambali, but a real question exists as to exactly what power our civil judicial system would have over him. In order to pass judgment on anyone, a court must have personal jurisdiction over the defendant, which essentially means that he has some nexus with the place where his trial takes place. With respect to Khalid Sheikh Mohammed, there is at least a good argument that his alleged activities with respect to the 9/11 attacks and the World Trade Center bombings creates a connection with the court of record in New York City. In contrast, Hambali does not, as far as anyone has alleged, have any connection whatsoever with the District of Columbia, nor with anywhere else in the United States. So on what basis can a DC court claim to have any power over his person?

        So why does the military have custody?  If this guy didn’t attack the US or any of her citizens, then why is he in GITMO?
        These questions come from a genuine curiosity as 1) I don’t know anything about the case, and 2) I’m really interested in arguments for a healthy balance of security and justice.

        Also, it doesn’t sit well with me that the US military can just pick anyone off the sands and hold them indefinitely.  I’m sure the military is doing the best it can to get the right bad guys, and I’m also sure they’re doing a damn good job at it.  But not everyone is perfect.  And the military is going to get it wrong once in a while.  Then what?  Military tribunals?  That doesn’t sit well with me either.  No one entity should act as police, prosecutor, judge, jury, and executioner.
        That leaves civil prosecution.

        There are many problems with this as well, we know.

        However, it doesn’t bother me that the US is taking it’s civil jurisdiction beyond it’s shores.  Because at least the prosecution of defendants can be done so under the scrutiny of the public eye.

        Cheers.

        p.s.  I haven’t been commenting so much recently because I haven’t seen too much here that I have disagreed with.  But keep writing fellas.  I’ll be reading.  And I’m sure you’ll stumble in your reasoning often enough to keep me coming back to the comments section.  ;)
         

    • Geez, Pogue they “capture” people who attack them. POWs are held indefinitely without redress until a war is over. What’s your point, old boy?

  • Somewhat along these lines I was watching a CBS news confab where the anchor and a couple of guests said that the US being the only effective presence in Haiti was an opportunity to seize control and set things right for Haiti’s other problems.

  • Everyone makes good points, and there is no easy answer to this.  MichaelW advocates using a militaristic approach to terrorists, a popular sentiment.  In theory, with no additional complications, I would tend to agree.  However, in the real world there are always complications.  Going back to the Pakistani cave-dweller example, we have declared war and used our military in that exact scenario, but we cannot simply breach the sovereignty of Pakistan because we feel like chasing after a terrorist.  So in that scenario, the military is ineffective (as would be the civilian authorities.)  More practically, you simply cannot deploy your military to every far-reaching corner of the globe to declare war on individual terrorists.  If you are offering some modicum of judicial process, you might get some help with capture and extradition, as has been shown with some middle eastern countries.

    As for Pogue’s point, the court has jurisdiction over this a-hole’s person because they captured him and can physically bring him in front of the court.  Your statement points out the more appropriate problem:  if the event occurred outside the territorial boundaries of the US, why does the Court have jurisdiction over the subject matter?  (In theory, you need subject matter jurisdiction to assert your authority to issue the warrant that permits you to obtain personal jurisdiction.)  The simple answer is because Congress said so.  Is it Constitutional?  I don’t know.  I do not believe it has been tested, as the other terrorism trials have had a better nexus with the United States or one of its territories.  The more frightening issue is whether by asserting this jurisdiction  we give foreign nationals an entitlement to the assertion of Constitutional rights.  I think by brining them in front of the US Courts we certainly do.  And that is the real problem, and why Bush elected not to pursue this very course of action.

  • not sure where this guy was picked up but what i don’t understand is why haven’t the indonesians asked for him back so they  can cane him?