As Walter Olson notes below, today the Supreme Court correctly ruled in Kiobel v. Royal Dutch Petroleum that the Alien Tort Statute, like any federal law not explicitly stating otherwise, does not cover actions occurring outside the United States. That is, you can’t bring a suit in U.S. court just because it involves a “violation of the law of nations” (the conduct that the ATS addresses).
As Chief Justice Roberts said in announcing the decision, even a claim that a foreigner committed such an international-law violation against another foreigner isn’t enough to counter the presumption that laws don’t have extra-territorial application. Indeed, in such a case – and Kiobel’s allegations of human rights abuses by Nigerians against Nigerians in Nigeria is such a case – there is even less of a reason to invoke the jurisdiction of American courts than if some American dimension existed (e.g., the citizenship of one of the parties or the location of the conduct).
Nothing in the text of the ATS overcomes that basic presumption against extra-territoriality and the Court’s fascinating historical exposition demonstrates why the First Congress – the ATS was enacted in 1789 as one of our first laws – wouldn’t have wanted to change that practice or make the fledgling republic a “uniquely hispitable forum for the enforcement of international norms.”
As Cato’s amicus brief argued, the Founders understood “the law of nations” to provide a methodology for defining the extraterritorial scope of ATS jurisdiction. Their understanding of jurisdiction rested on the nexus between territory and sovereignty; the law of nations as of 1789 recognized a territorial nexus between the state asserting jurisdiction and the claim asserted. That the law of nations permits jurisdiction over piracy on the high seas or in other unique circumstances doesn’t mean that a U.S. court may assert jurisdiction over conduct occurring entirely within the territory of a foreign sovereign.
Finally, the Court correctly noted that the mere fact that corporations are present in the case – the original issue was whether the ATS recognized corporate liability – doesn’t somehow change the extraterritorial-applicability calculus. In Kiobel, even the corporations were foreign (Dutch and British oil companies), with nobody alleging that so much as a U.S. subsidiary was involved.
At the end of the day, this was an exceedingly complicated case with a relatively simple solution. Well done, Supreme Court.
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Gunman put down
Statistics: Posted by yoda — Sun Aug 05, 2012 12:18 pm
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Shooting outside Sikh temple in Wisconsin
Four people have been shot in a "hate crime" shooting at a Sikh temple in Oak Creek, Wisconsin.
05 Aug 2012
There are conflicting reports and no suspect has been identified in a shooting that took place occurred around 10:45 a.m. at the temple, just outside of Milwaukee.
According to the Milkwaukee-Wisconsin Journal Sentinel, the president of the templeb was among those shot. A Police Swat team entered the building before noon local time to bring uninjured people out of the building.
According to information broadcast over police radio, a witness to the shooting told law enforcement the shooter was a white male, bald, with a heavy build. He was wearing a sleeveless T-shirt, according to Oak Creek Patch. He was last seen with two handguns.
Ven Boba Ri, a member of the temple’s committee, said the man started shooting after he walked up to a priest who was standing outside, and shot him. Then he went inside and started shooting.
"We have no idea," he said of the motive. "It’s pretty much a hate crime. It’s not an insider."
Statistics: Posted by yoda — Sun Aug 05, 2012 12:05 pm
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MONDAY, APRIL 16, 2012
You Are Free To Travel—If The IRS Lets You
A bill that nobody is paying any attention to is sailing through Congress: Senate Bill 1813. It passed the Senate by 74 to 22, and is expected to sail through the House as well. It’s an act “[t]o reauthorize Federal-aid highway and highway safety construction programs, and for other purposes.”
It’s the “and for other purposes” part of the title that has me worried—specifically Section 40304: “Revocation or denial of passport in case of certain unpaid taxes.”
This section would give the IRS the power to keep a U.S. citizen from traveling—
—and it’s another example of Executive Power run amok. It’s another example of how the United States is turning into a police-state.
The right to travel freely is sacrosanct—it’s not some privilege that the government bestows on us: It’s one of our basic freedoms as citizens. In point of fact, the countries that have limited their citizens’ ability to travel—the Soviet Union, the People’s Republic of China, North Korea, Cuba—were all rightfully called “police-states”: It’s one of their defining characteristics—the fact that they were keeping their citizens hostage.
In the United States, there are several, clearly defined reasons why you would have your passport either denied or revoked—and all of them pass the smell test.
In the case of a passport being denied, according to the U.S. State Department, the reasons are:
“a federal warrant of arrest, a federal or state criminal court order, a condition of parole or probation forbidding departure from the United States (or the jurisdiction of the court), or a request for extradition [by a foreign country].
Additionally, failure to pay a court-ordered child-support in excess of $5,000 can also be grounds for the State Department to refuse to issue a passport to a U.S. citizen.
In the case of a passport being revoked, the law (22 CFR 51.72) says very clearly that:
A passport may be revoked or restricted or limited where:
(a) The national would not be entitled to issuance of a new passport under §51.70 or §51.71 [the above conditions]; or
(b) The passport has been obtained illegally, by fraud, or has been fraudulently altered, or has been fraudulently misused, or has been issued in error; or
(c) The Department of State is notified that a certificate of naturalization issued to the applicant for or bearer of the passport has been canceled by a federal court.
[54 FR 8532, Mar. 1, 1989, as amended at 64 FR 19714, Apr. 22, 1999]
Now, notice how both in the case of a denial or a revocation of a passport, the State Department is essentially carrying out the judgment of the courts.
An arrest warrant can only be issued by a court. A parolee is, again, limited under the aegis of a judicial order. An extradition request will only be complied if a foreign court is making the request, not a foreign law enforcement agency. A court-ordered child support payment is, again, a judicial decision.
In all of these cases, the State Department is acting on the orders of a court. It is the Judiciary that decides to restrict the freedom of movement and travel of a U.S. citizen—as is their exclusive prerogative.
According to the Constitution, the Legislature does not have the right to judge the guilt or innocence of a person, be they a citizen or not. According to the Constitution, the Executive does not have the right to judge the guilt or innocence of a person, be they a citizen or not.
According to the Constitution’s separation of powers, only the Judiciary has the right to determine guilt or innocence.
Thus, ultimately, only the Judiciary has the right to revoke or deny a citizen’s ability to travel—and only for serious crimes.
But with this Bill 1813, it will now be the IRS—without any judicial oversight—which will determine if a citizen can travel or not. Not even the IRS as an institution—just some random IRS bureaucrat, with no oversight or restraint, will be able to decide to strip you of your right to travel freely.
As written, Bill 1813 states that the IRS must find that $50,000 or more is owed by the citizen—but this is a unilateral determination by the IRS, and it includes penalties and interest. So the alleged amount that you owe could be substantially less—but you are now no longer allowed to travel.
Notice I say “alleged”: It is not that the IRS has to present proof of tax delinquency to anyone—they just have to say that you owe back taxes. No proof required, no judicial oversight or restraint.
In other words, the IRS’s word is enough—and you do not have the possibility of appeal. Who would you appeal to—a judge? There’s no judge in this case—because no judge supervises and monitors the IRS’s decision.
That’s why Madison invented the idea of checks-and-balances: To make sure that no one branch of the government acquired the power to deprive people of their life, liberty or property.
But here is Senate Bill 1813, doing precisely that.
Commentators on tax law are very surprised by this legislation. Over at the blog of R&G Brenner, a large and well-established New York tax preparation company, they wrote:
[I]f the bill is passed you could have your passport revoked merely because you owe say $60,000 and the IRS has filed a notice of lien. Bear in mind that the IRS files tax liens routinely when you owe taxes–it’s just the IRS way of putting creditors on notice so the IRS will eventually get paid… In that sense, this you-can’t-travel idea seems pretty extreme. [ellipsis in original]
So even knowledgeable people are surprised by how extreme this legislation is—
—because it is extreme. But more importantly, it is yet another example of how the Executive Branch is hollowing out the Judiciary, and taking control of all facets of justice.
We already have an Executive that has taken it upon itself to determine the guilt or innocence of an American citizen overseas—and execute him by drone strike. We already have an Executive—in the person of Attorney General Eric Holder—who has made the incredible distinction between “judicial process” and “due process”, claiming that the Executive can carry out due process without involving the Judiciary.
In other words, summary judgments. The Executive is becoming the judge, jury and executioner. Judgements by the Executive where there is no right to appeal. Judgments made not by a jury of your peers, but by a faceless bureaucrat.
This man will determine your fate.
This Senate bill 1813 will in all likelihood pass the House vote, and be signed into law by President Obama. Few people will notice it now, and when the history of this shameful period is written it will not be given much pride of place: Senate bill 1813 will simply be mentioned as one more law that was passed that turned the United States from a free Republic into a closed Police-State.
http://gonzalolira.blogspot.com/2012/04 … .html#more
Statistics: Posted by yoda — Mon Apr 16, 2012 12:50 pm
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