BARRINGTON D. PARKER, Circuit Judge:
After approximately two weeks, Pfizer allegedly concluded the experiment
This consolidated appeal is from the judgments of the United States District Court for the
Southern District of New York (Pauley, J.) dismissing two complaints for lack of subject
matter jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350("ATS"), and in the
alternative, on the ground of forum non conveniens. Plaintiffs-Appellants Rabi Abdullahi
and other Nigerian children and their guardians sued Defendant-Appellee Pfizer, Inc.
under the ATS ("the Abdullahi action"). They alleged that Pfizer violated a customary
international law norm prohibiting involuntary medical experimentation on humans when it
tested an experimental antibiotic on children in Nigeria, including themselves, without their
consent or knowledge. Plaintiffs-Appellants Ajudu Ismaila Adamu and others, also children
and their guardians who were part of Pfizer's Nigerian drug experiment, brought a similar
action against Pfizer, alleging violations of the ATS, the Connecticut Unfair Trade Practices
Act ("CUTPA"), and the Connecticut Products Liability Act ("CPLA") ("the Adamu action").
Pfizer moved to dismiss both actions for lack of subject matter jurisdiction and on the
basis of forum non coveniens. The district court granted the motions and both sets of
plaintiffs have appealed.
As explained below, we conclude: (1) that the district court incorrectly determined that the
prohibition in customary international law against nonconsensual human medical
experimentation cannot be enforced through the ATS; (2) that changed circumstances in
Nigeria since the filing of this appeal require re-examination of the appropriate forum, albeit
on the basis of a legal analysis different from that employed by the district court; and (3)
that the district court incorrectly applied Connecticut's choice of law rules in
the Adamu action. Consequently, we reverse and remand the cases to the district court for
further proceedings.
BACKGROUND
A, Pfizer's Trovan Test in Nigeria
On review of a district court's grant of a motion to dismiss, we assume as true the facts
alleged in the complaints, construing them in the light most favorable to the
appellants. See Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d
104, 115 (2d Cir. 2008). The central events at issue in these cases took place in 1996,
during an epidemic of bacterial meningitis in northern Nigeria. The appellants allege that at
that time, Pfizer, the world's largest pharmaceutical corporation, sought to gain the
approval of the U.S. Food and Drug Administration ("FDA") for the use on children of its
new antibiotic, Trovafloxacin Mesylate, marketed as "Trovan." They contend that in April
1996, Pfizer, dispatched three of its American physicians to work with four Nigerian
doctors to experiment with Trovan on children who were patients in Nigeria's Infectious
Disease Hospital ("IDH") in Kano, Nigeria. Working in concert with Nigerian government
officials, the team allegedly recruited two hundred sick children who sought treatment at
the IDH and gave half of the children Trovan and the other half Ceftriaxone, an FDA-
approved antibiotic the safety and efficacy of which was well-established. Appellants
contend that Pfizer knew that Trovan had never previously been tested on children in the
form being used and that animal tests showed that Trovan had life-threatening side effects,
including joint disease, abnormal cartilage growth, liver damage, and a degenerative bone
condition. Pfizer purportedly gave the children who were in the Ceftriaxone control group a
deliberately low dose in order to misrepresent the effectiveness of Trovan in relation to
Ceftriaxone.
and left without administering follow-up care. According to the appellants, the tests caused
the deaths of eleven children, five of whom had taken Trovan and six of whom had taken
the lowered dose of Ceftriaxone, and left many others blind, deaf, paralyzed, or brain-
damaged.
Bacterial meningitis is a serious and sometimes fatal infection of the fluids surrounding the
spinal cord and the brain. Centers for Disease Control and Prevention, Meningococcal
Disease: Frequently Asked Questions (May 28, 2008),
http://www.cdc.gov/meningitis/bacterial/faqs.htm.
Appellants claim that Pfizer, working in partnership with the Nigerian government, failed to
secure the informed consent of either the children or their guardians and specifically failed
to disclose or explain the experimental nature of the study or the serious risks involved.
Although the treatment protocol required the researchers to offer or read the subjects
documents requesting and facilitating their informed consent, this was allegedly not done
in either English or the subjects' native language of Hausa. The appellants also contend
that Pfizer deviated from its treatment protocol by not alerting the children or their
guardians to the side effects of Trovan or other risks of the experiment, not providing them
with the option of choosing alternative treatment, and not informing them that the non-
governmental organization Médecins Sans Frontières (Doctors Without Borders) was
providing a conventional and effective treatment for bacterial meningitis, free of charge, at
the same site.
The appellants further allege that Pfizer failed to follow its protocol in ways that might have
mitigated the harm suffered by the children. They contend that Pfizer violated the protocol
by administering Trovan orally even though oral absorption is difficult for sick children;
conducting no testing prior to administering the drug to determine whether Nigeria's strain
of meningitis might be responsive to Trovan; failing to determine that the children in the
test had meningitis; and failing to either exclude from the experiment children with liver or
joint problems or to test for such problems, even though Trovan was known to exacerbate
them. Although Pfizer's protocol called for children receiving Trovan to be switched to
Ceftriaxone if they did not respond well to Trovan, Pfizer allegedly did not conduct regular
blood tests of the children or switch those who suffered from Trovan-related side effects to
Ceftriaxone.
The appellants allege that, in an effort to rapidly secure FDA approval, Pfizer hastily
assembled its test protocol at its research headquarters in Groton, Connecticut, and
requested and received permission to proceed from the Nigerian government in March
1996. At the time, Pfizer also claimed to have secured approval from an IDH ethics
committee. Appellants allege, however, that the March 1996 approval letter was backdated
by Nigerian officials working at the government hospital well after the experiments had
taken place and that at the time the letter was purportedly written, the IDH had no ethics
committee. Appellants also contend that the experiments were condemned by doctors,
including one on Pfizer's staff at the time of the Kano trial.
A Nigerian physician who was the principal investigator for the test allegedly admitted that
his office created the backdated approval letter when the FDA conducted an audit of the
experiment in 1997.
In 1998, the FDA approved Trovan for use on adult patients only. After reports of liver
failure in patients who took Trovan, its use in America was eventually restricted to adult
emergency care. In 1999, the European Union banned its use.
B. The Proceedings Below
In August 2001, the Abdullahi plaintiffs sued Pfizer under the ATS, alleging that the
experiments violated international law. In September 2002, the district court granted
Pfizer's motion to dismiss the Abdullahi claims on the ground of forum non conveniens,
conditioned on Pfizer's consent to litigation in Nigeria. Abdullahi v. Pfizer, Inc., No. 01 Civ.
8118(WHP), 2002 WL 31082956, at *12 (S.D.N.Y. Sept. 17, 2002) (" Abdullahi I"), It found
that Nigeria was an adequate alternative forum despite plaintiffs' contentions about
corruption in the Nigerian court system. Id. at *8-10. The district court denied Pfizer's
motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P., concluding that the plaintiffs
adequately alleged that Pfizer's collusion with the Nigerian government made it a state
actor. Id. at *5-6.
Meanwhile, another group of children and guardians involved in the Trovan experiment
sued in the Federal High Court in Kano, alleging claims under Nigerian law. That
case, Zango v. Pfizer International, Inc., [2001] Suit No. FHC/K/CS/204/2001 (Nigeria),
was dismissed in 2003 after plaintiffs voluntarily discontinued the suit following the removal
from the bench of the first judge assigned to the action and the second judge's decision to
decline jurisdiction for personal reasons. Abdullahi v. Pfizer, Inc., No. 01 Civ. 8118(WHP),
2005 WL 1870811, at *5 (S.D.N.Y. Aug. 9, 2005) (" Abdullahi III"). On appeal to this Court
from the district court's dismissal in Abdullahi I, the Abdullahi appellants argued that the
dismissal of the Zango litigation was a result of rampant corruption, which indicated that
the Nigerian judicial system could not provide an adequate alternative forum for their
action. Given an inconclusive record regarding the events leading to the dismissal of
the Zango lawsuit, we vacated the judgment and remanded for further factfinding on forum
non conveniens. See Abdullahi v. Pfizer, Inc., 77 Fed.Appx. 48, 53 (2d Cir. 2003)
(summary order) (" Abdullahi II").
In November 2002, following the dismissal of the Zango lawsuit, a number of
the Zango plaintiffs filed the Adamu action. They alleged that in planning the Trovan
experiment in Connecticut and in conducting the tests in Nigeria without informed consent,
Pfizer violated the CUTPA, the CPLA, and the ATS. Eventually, the Adamuaction was
transferred to the Southern District of New York and consolidated with the Abdullahi action.
Pfizer then moved to dismiss both cases for failure to state a claim under the ATS and on
the basis of forum non conveniens. It also moved to dismiss in Adamu on the ground that
Connecticut choice of law principles require the application of Nigerian law, which bars suit
under CUTPA and the CPLA.
The district court granted the motions. See Abdullahi III, 2005 WL 1870811; Adamu v.
Pfizer, Inc., 399 F.Supp.2d 495 (S.D.N.Y. 2005). In Abdullahi III, Judge Pauley held that
while "[p]laintiffs correctly state that non-consensual medical experimentation violates the
law of nations and, therefore, the laws of the United States," they failed to identify a source
of international law that "provide[s] a proper predicate for jurisdiction under the ATS." 2005
WL 1870811, at *9, 14. Noting that "a decision to create a private right of action is one
better left to legislative judgment in the great majority of cases," he concluded that "[a]
cause of action for Pfizer's failure to get any consent, informed or otherwise, before
performing medical experiments on the subject children would expand customary
international law far beyond that contemplated by the ATS." Id. at *13-14 (internal
quotation marks omitted).
With regard to the forum non conveniens analysis, the district court declined to accept
plaintiffs' submissions concerning Pfizer's alleged bribery of Nigerian officials on the
ground that they were not based on personal knowledge. Id. at *16-17. Finding that the
plaintiffs had failed to submit specific evidence that the Nigerian judiciary would be biased
against its own citizens in an action against Pfizer, the district court alternatively held that
Nigeria was an adequate alternate forum. Id. at *16, 18.
Several months later, the district court also granted Pfizer's motion to dismiss
the Adamu case. Adamu, 399 F.Supp.2d 495. It relied on its Abdullahi III decision to hold
that the plaintiffs could not establish jurisdiction under the ATS. Id. at 501. The district
court also incorporated the forum non conveniens analysis from Abdullahi IIIto find that
Nigeria is an adequate forum. Id. at 504. Applying the public and private interest factors set
forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055
(1947), superseded by statute on other grounds as recognized in Cowan v. Ford Motor
Co., 713 F.2d 100, 103 (5th Cir. 1983), the court found that while public interest factors did
not support either forum, private interest factors weighed in favor of dismissal. Adamu, 399
F.Supp.2d. at 505-06. The district court also dismissed the Adamu plaintiffs' Connecticut
law claims, concluding that, under Connecticut choice of law principles, the action was
governed and barred by Nigerian law. Id. at 503.
The Abdullahi and Adamu plaintiffs appealed. Since then, a tectonic change has altered
the relevant political landscape. In May 2007, the state of Kano brought criminal charges
and civil claims against Pfizer, seeking over $2 billion in damages and restitution. Around
the same time, the federal government of Nigeria sued Pfizer and several of its employees,
seeking $7 billion in damages. None of these cases seek compensation for the subjects of
the tests, who are the appellants before this Court. Pfizer then notified this Court that in
light of these recent developments, which it believed required further consideration by the
district court, it would not seek affirmance on the basis of forum non conveniens.
Tina Akannam, Nigeria: Pfizer — Case Adjourned Till May 27, Vanguard, April 30, 2008,
http://allafrica.com/stories/200804300470.html; Joe Stephens, Pfizer Faces Criminal
Charges in Nigeria, The Washington Post, May 30, 2007, at A10, available
athttp://www.washingtonpost.com/wp-dyn/content/article/2007/05/29
/AR2007052902107.html.
Jonathan Clayton, Pfizer Under Fire After Drug Trial, TimesOnline, June 27, 2007,
http://business.timesonline.co.uk/tol/business/industry_sectors /health/article
1990908.ece; Nigeria Sues Drugs Giant Pfizer, BBC News, June 5, 2007,
http://news.bbc.co.uk/2/hi/africa/6719141.stm.
DISCUSSION
The district court dismissed both actions based on its determination that it lacked subject
matter jurisdiction because plaintiffs failed to state claims under the ATS. We review
dismissal on this ground de novo. Rweyemamu v. Cote, 520 F.3d 198, 201(2d Cir. 2008).
"To survive dismissal, the plaintiff[s] must provide the grounds upon which [their] claim
rests through factual allegations sufficient `to raise a right to relief above the speculative
level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929
(2007)).
Twombly instituted a flexible "plausibility standard," not limited to antitrust cases, which
requires the amplification of facts in certain contexts. Iqbal v. Hasty, 490 F.3d 143, 155-
58 (2d Cir. 2007).
I. The Alien Tort Statute
The Alien Tort Statute, 28 U.S.C. § 1350, provides that "[t]he district courts shall have
original jurisdiction of any civil action by an alien for a tort only, committed in violation of
the law of nations or a treaty of the United States." Included in the Judiciary Act of 1789,
the statute provided jurisdiction in just two cases during the first 191 years after its
enactment. See Taveras v. Taveraz, 477 F.3d 767, 771 (6th Cir. 2007). In the last thirty
years, however, the ATS has functioned slightly more robustly, conferring jurisdiction over
a limited category of claims.
judicially enforceable through our residual common law discretion to create causes of
action. Id. at 728-29. It cautioned, however, that courts must exercise this power with
restraint and "the understanding that the door [to actionable violations] is still ajar subject
to vigilant doorkeeping," permitting only those claims that "rest on a norm of international
character accepted by the civilized world and defined with a specificity comparable to the
features of the 18th-century paradigms [the Supreme Court has] recognized." Id. at 725,
729. These 18th-century paradigms consist of offenses against ambassadors, violations of
the right to safe passage, and individual actions arising out of piracy. Id. at 724. The
common theme among these offenses is that they contravened the law of nations,
admitted of a judicial remedy, and simultaneously threatened serious consequences in
international affairs. Id. at 715. Lower courts are required to gauge claims brought under
the ATS against the current state of international law, but are permitted to recognize under
federal common law only those private claims for violations of customary international law
norms that reflect the same degree of "definite content and acceptance among civilized
nations" as those reflected in the 18th-century paradigms. Id. at 732-33. The Supreme
Court in Sosa also counseled that "the determination whether a norm is sufficiently definite
to support a cause of action should (and, indeed, inevitably must) involve an element of
judgment about the practical consequences of making that cause available to litigants" in
federal courts. Id.

In this way Sosa set a "high bar to new private causes of action" alleging violations of
We first extensively examined the ATS in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.
customary international law. Id. at 727. A federal court can recognize one only if a plaintiff
1980), where we held that conduct violating the law of nations is actionable under the ATS
identifies the violation of a norm of customary international law that, as defined by the
"only where the nations of the world have demonstrated that the wrong is of mutual, and
sources of such law that United States courts "have long, albeit cautiously,
not merely several, concern, by means of express international accords." Id. at 888.
recognized," id. at 733-34 (referencing The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct.
Following Filartiga, we concluded that ATS claims may sometimes be brought against
290, 44 L.Ed. 320 (1900)), is sufficiently specific, universal, and obligatory to meet the
private actors, and not only state officials, see Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir.
standards established by Sosa. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (citing with
1995), when the tortious activities violate norms of "universal concern" that are recognized
approval Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781(D.C. Cir. 1984) (Edwards,
to extend to the conduct of private parties — for example, slavery, genocide, and war
J., concurring), and In re Estate of Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th
crimes, id. at 240. This case involves allegations of both state and individual action.
Cir. 1994)). Applying these principles, the Supreme Court held that the plaintiff, a Mexican
In Flores v. Southern Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003), we clarified that
national who sued a fellow Mexican national under the ATS for allegedly aiding in his
"the law of nations" in the ATS context "refers to the body of law known as customary
illegal abduction by agents of the U.S. Drug Enforcement Agency, had failed to allege the
international law," which "is discerned from myriad decisions made in numerous and varied
violation of a customary international law norm with the required precision. Sosa, 542 U.S.
international and domestic arenas" and "does not stem from any single, definitive, readily-
at 738, 124 S.Ct. 2739. The Supreme Court found that the practical consequences of
identifiable source." Id. at 247-48. These principles are rejected in their entirety by our
recognizing a general and broad customary international law prohibition of arbitrary
dissenting colleague. In Flores, we concluded that ATS jurisdiction is limited to alleged
detention in a case involving "a single illegal detention of less than a day, followed by the
violations of "those clear and unambiguous rules by which States universally abide, or to
transfer of custody to lawful authorities and a prompt arraignment" would be "breathtaking"
which they accede, out of a sense of legal obligation and mutual concern." Id. at 252.
and inappropriate. Id. at 736, 738, 124 S.Ct. 2739.
Applying this standard, we held that the appellants' claim that pollution from mining
operations caused lung disease failed to state a violation of customary international law.
We reasoned that the "right to life" and the "right to health" were insufficiently definite to Since Sosa, this Court has reviewed three judgments dismissing claims under the ATS.
constitute binding customary legal norms and that there was insufficient evidence to In Khulumani v. Barclay National Bank, Ltd., 504 F.3d 254 (2d Cir. 2007) (per curiam), we
establish the existence of a narrower norm prohibiting intranational pollution. Id. at 254-55. held that the ATS conferred jurisdiction over multinational corporations that purportedly
collaborated with the government of South Africa in maintaining apartheid because they
aided and abetted violations of customary international law. Id. at 260. In Vietnam Ass'n for
In 2004, the Supreme Court comprehensively addressed the ATS for the first time in Sosa
Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104 (2d Cir. 2008), we concluded
v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Justice Souter,
that the ATS did not support a claim that the defendants violated international law by
writing for the majority, clarified that the ATS was enacted to create jurisdiction over "a
manufacturing and supplying Agent Orange and other herbicides used by the United
relatively modest set of actions alleging violations of the law of nations" and with "the
States military during the Vietnam War. Id. at 123. We reasoned that the sources of law on
understanding that the common law would provide a cause of action." Id. at 720, 723. The
which the appellants relied did not define a norm prohibiting the wartime use of Agent
Supreme Court confirmed that federal courts retain a limited power to "adapt[] the law of
Orange that was both universal and sufficiently specific to satisfy the requirements of
nations to private rights" by recognizing "a narrow class of international norms" to be
Sosa. Id. at 119-23. Similarly, in Mora v. People of the State of New York, 524 F.3d
183 (2d Cir. 2008), we held that the norm at issue — one that prohibits the detention of a
foreign national without informing him of the requirement of consular notification and
access under Article 36(1)(b)(3) of the Vienna Convention on Consular Relations — was
insufficiently universal to support a claim under the ATS. Id. at 208-09.
Turning now to this appeal, and remaining mindful of our obligation to proceed cautiously
and self-consciously in this area, we determine whether the norm alleged (1) is a norm of
international character that States universally abide by, or accede to, out of a sense of
legal obligation; (2) is defined with a specificity comparable to the 18th-century paradigms
discussed in Sosa; and (3) is of mutual concern to States.
A. The Prohibition of Nonconsensual Medical Experimentation on Humans
Appellants' ATS claims are premised on the existence of a norm of customary international
law prohibiting medical experimentation on non-consenting human subjects. To determine
whether this prohibition constitutes a universally accepted norm of customary international
law, we examine the current state of international law by consulting the sources identified
by Article 38 of the Statute of the International Court of Justice ("ICJ Statute"), to which the
United States and all members of the United Nations are parties. Flores, 414 F.3d at
250; see, e.g., United States v. Yousef 327 F.3d 56, 100-01 (2d Cir. 2003). Article 38
identifies the authorities that provide "competent proof of the content of customary
international law." Flores, 414 F.3d at 251. These sources consist of:
(a) international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as
law;
(c) the general principles of law recognized by civilized nations;
(d) . . . judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.
Statute of the International Court of Justice, art. 38(1), June 26, 1945, 59 Stat. 1055, 1060,
T.S. No. 993 [hereinafter ICJ Statute].
The appellants ground their claims in four sources of international law that categorically
forbid medical experimentation on non-consenting human subjects: (1) the Nuremberg
Code, which states as its first principle that "[t]he voluntary consent of the human subject is
absolutely essential"; (2) the World Medical Association's Declaration of Helsinki, which
sets forth ethical principles to guide physicians world-wide and provides that human
subjects should be volunteers and grant their informed consent to participate in research;
(3) the guidelines authored by the Council for International Organizations of Medical
Services ("CIOMS"), which require "the voluntary informed consent of [a] prospective
subject"; and (4) Article 7 of the International Covenant on Civil and Political Rights
("ICCPR"), which provides that "no one shall be subjected without his free consent to
medical or scientific experimentation."
These sources are located respectively at (1) United States v. Brandt, 2 Trials of War
Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, 181
(1949) [hereinafter Nuremberg Trials]; (2) World Med. Ass'n, Declaration of Helsinki:
Ethical Principles for Medical Research Involving Human Subjects, art. 20, 22, G.A. Res.
(adopted 1964, amended 1975, 1983, 1989, 1996, and 2000),
http://www.wma.net/e/policy/pdf/l7c.pdf [hereinafter Declaration of Helsinki]; (3) Council for
International Organizations of Medical Services [CIOMS], International Ethical Guidelines
for Biomedical Research Involving Human Subjects, guideline 4 (3rd ed.
2002), superseding id. at guideline 1 (2nd ed. 1993); (4) International Covenant on Civil
and Political Rights, art. 7, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
The district court found that "non-consensual medical experimentation violates the law of
nations and, therefore, the laws of the United States" and cited the Nuremberg Code for
support. Abdullahi III, 2005 WL 1870811, at *9. It then noted that "[w]hile federal courts
have the authority to imply the existence of a private right of action for violations of jus
cogens norms of international law, federal courts must consider whether there exist special
factors counseling hesitation in the absence of affirmative action by Congress." Id. (internal
citations and quotation marks omitted). The district court then separately analyzed the four
sources of international law that prohibit nonconsensual medical experimentation on
humans and the Universal Declaration of Human Rights. Id. at *11-13. It found that with
the exception of the Nuremberg Code, these sources contain only aspirational or vague
language lacking the specificity required for jurisdiction. Id. at *12-13. It also determined
that because the United States did not ratify or adopt any of these authorities except the
ICCPR, and because even the ICCPR is not self-executing, none of them create binding
international legal obligations that are enforceable in federal court. Id. at *11-13. Finally,
the district court concluded that the plaintiffs failed to provide a proper predicate for ATS
jurisdiction because none of the sources independently authorizes a private cause of
action and the inference of such a cause of action is a matter best left to Congress. Id. at
*13-14.
The district court interchangeably refers to the "lack of jurisdiction" or "lack of subject
matter jurisdiction" over plaintiffs' claims, the plaintiffs' failure to state an ATS claim, and
their failure to identify a norm that permits the inference of a cause of action.
The district court's approach misconstrued both the nature of customary international law
and the scope of the inquiry required by Sosa. It mistakenly assumed that the question of
whether a particular customary international law norm is sufficiently specific, universal, and
obligatory to permit the recognition of a cause of action under the ATS is resolved
essentially by looking at two things: whether each source of law referencing the norm is
binding and whether each source expressly authorizes a cause of action to enforce the
norm. But Sosa, as we have seen, requires a more fulsome and nuanced inquiry. Courts
are obligated to examine how the specificity of the norm compares with 18th-century
paradigms, whether the norm is accepted in the world community, and whether States
universally abide by the norm out of a sense of mutual concern. By eschewing this inquiry,
the district court did not engage the fact that norms of customary international law are
"discerned from myriad decisions made in numerous and varied international and domestic
arenas" and "[do] not stem from any single, definitive, readily-identifiable
source." Flores, 414 F.3d at 247-48.
The district court also inappropriately narrowed its inquiry in two respects. First, it focused
its consideration on whether the norm identified by the plaintiffs is set forth in conventions
to which the United States is a party, and if so, whether these treaties are self-executing or
executed by federal legislation. While adoption of a self-executing treaty or the execution
of a treaty that is not self-executing may provide the best evidence of a particular country's
custom or practice of recognizing a norm, see Flores, 414 F.3d at 257, the existence of a
norm of customary international law is one determined, in part, by reference to the custom
or practices of many States, and the broad acceptance of that norm by the international
community. Agreements that are not self-executing or that have not been executed by
federal legislation, including the ICCPR, are appropriately considered evidence of the
current state of customary international law. See Khulumani, 504 F.3d at 284 (Katzmann,
J., concurring) (noting that "[w]hether a treaty that embodies [a norm of customary
international law] is self-executing is relevant to, but is not determinative of, [the] question"
of whether the norm permits ATS jurisdiction). A formal treaty, moreover, is not the lone
primary source of customary international law. The ICJ Statute permits, and Sosa
encourages, among other things, that courts consider "international custom, as evidence of
a general practice accepted as law." ICJ Statute, supra, at art. 38(1); Sosa, 542 U.S. at
734, 124 S.Ct. 2739 ("[W]here there is no treaty, and no controlling executive or legislative
act or judicial decision, resort must be had to the customs and usages of civilized nations.")
(quoting The Paquete Habana, 175 U.S. at 700, 20 S.Ct. 290).
Second, the district court's consideration of whether each source of law creates binding
legal norms failed to credit the fact that even declarations of international norms that are
not in and of themselves binding may, with time and in conjunction with state practice,
provide evidence that a norm has developed the specificity, universality, and obligatory
nature required for ATS jurisdiction. See Filartiga, 630 F.2d at 883 ("[A non-binding]
Declaration creates an expectation of adherence, and insofar as the expectation is
gradually justified by State practice, a declaration may by custom become recognized as
laying down rules binding upon the States.") (internal quotation marks omitted). The district
court should have considered a greater range of evidence and weighed differently the
probative value of the sources on which the appellants relied.
In sum, it was inappropriate for the district court to forego a more extensive examination of
whether treaties, international agreements, or State practice have ripened the prohibition
of nonconsensual medical experimentation on human subjects into a customary
international law norm that is sufficiently (i) universal and obligatory, (ii) specific and
definable, and (iii) of mutual concern, to permit courts to infer a cause of action under the
ATS. See Sosa, 542 U.S. at 732-35, 124 S.Ct. 2739. We now proceed with such an
examination.
i. Universality
The appellants must allege the violation of a norm of customary international law to which
States universally subscribe. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739; Vietnam Ass'n
for Victims of Agent Orange, 517 F.3d at 117. The prohibition on nonconsensual medical
experimentation on human beings meets this standard because, among other reasons, it is
specific, focused and accepted by nations around the world without significant exception.
The evolution of the prohibition into a norm of customary international law began with the
war crimes trials at Nuremberg. The United States, the Soviet Union, the United Kingdom
and France "acting in the interest of all the United Nations," established the International
Military Tribunal ("IMT") through entry into the London Agreement of August 8, 1945. M.
Cheriff Bassiouni et al., An Appraisal of Human Experimentation in International Law and
Practice: The Need for International Regulation of Human Experimentation, 72 J.Crim. L.
Criminology 1597, 1640 n. 220 (1981) (internal quotation marks omitted). Annexed to the
London Agreement was the London Charter, which served as the IMT's
Constitution. See Agreement for the Prosecution and Punishment of the Major War
Criminals of the European Axis Powers, with annexed Charter of the International Military
Tribunal art. 2, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. According to the Charter, the
IMT had the "power to try and punish persons who, acting in the interests of the European
Axis countries, whether as individuals or as members of organizations, committed," among
other offenses, war crimes and crimes against humanity. Id. at art. 6.
The IMT tried 22 "major" Nazi war criminals leaving "lower-level" war criminals, including
"[l]eading physicians . . . and leading German industrialists," to be tried in subsequent trials
by U.S. military tribunals acting "under the aegis of the IMT." United States Holocaust
Memorial Museum, War Crimes Trials, Holocaust Encylopedia (2008),
http://www.ushmm.org/wlc/article.php?lang=enModuleId= 10005140. The law that
authorized the creation of the U.S. military tribunals, Control Council Law No. 10, was
enacted in 1945 by the Allied Control Council, see id., an authority through which the
London Agreement signatories exerted joint-control over Germany, see Encyclopedia
Britannica, Germany, Encyclopedia Britannica Online (2009),
http://search.eb.com/eb/article-58214. Control Council Law No. 10 stated that its purpose
was to "give effect to the terms of . . . the London Agreement . . . and the [London]
Charter," and "to establish a uniform legal basis in Germany for the prosecution of war
criminals." Allied Control Council No. 10, preamble, (Dec. 20, 1945),
http://avalon.Iaw.yale.edu/imt/imt10.asp. Law No. 10 expressly incorporated the London
Agreement, identifying it as an "integral part[] of this Law." Id. at art. I. Law No. 10 also
authorized military tribunals of the occupying powers to prosecute individuals for the same
crimes over which the IMT had jurisdiction, including war crimes and crimes against
humanity, see id. at arts. II-III, and made military tribunal prosecutions subject to the IMT's
right of first refusal, see id. at art. III. Consequently, the U.S. military tribunals effectively
operated as extensions of the IMT, see Telford Taylor, Final Report to the Secretary of the
Army on the Nuernberg War Crimes Trials Under Control Council Law No. 107, 107 (1949)
[hereinafter Report on Nuernberg War Crimes Trials], available
athttp://www.loc.gov/rr/frd/Military_Law/pdf/NT_final-report.pdf (explaining that "the trials
under Law No. 10 were to be a means of carrying out such `declarations of criminality' . . .
as the International Military Tribunal might make" and that "[t]he first [IMT] trial and the 12
following [military tribunal] trials . . . form a single sequence based on common principles"),
and Control Council Law No. 10 served to implement the commitments undertaken in the
London Agreement, see id. at 7 (noting that "the two documents supplemented each other"
and "[m]ajor criminals not tried under the one could be tried under the other").
In August 1947, Military Tribunal 1, staffed by American judges and prosecutors and
conducted under American procedural rules, see George J. Annas, The Nuremberg Code
in U.S. Courts: Ethics versus Expediency, in The Nazi Doctors and the Nuremberg
Code 201, 201 (George J. Annas Michael A. Grodin eds., 1992), promulgated the
Nuremberg Code as part of the tribunal's final judgment against fifteen doctors who were
found guilty of war crimes and crimes against humanity for conducting medical
experiments without the subjects' consent, Brandt, 2 Nuremberg Trials, at 181-82. Among
the nonconsensual experiments that the tribunal cited as a basis for their convictions were
the testing of drugs for immunization against malaria, epidemic jaundice, typhus, smallpox
and cholera. Id. at 175-178. Seven of the convicted doctors were sentenced to death and
the remaining eight were sentenced to varying terms of imprisonment. Id. at 298-300. The
tribunal emphasized that
[i]n every single instance appearing in the record, subjects were used
who did not consent to the experiments; indeed, as to some of the
experiments, it is not even contended by the defendants that the
subjects occupied the status of volunteers.
Id. at 183. The judgment concluded that "[m]anifestly human experiments under such
conditions are contrary to the principles of the law of nations as they result from usages
established among civilized peoples, from the laws of humanity, and from the dictates of
public conscience." Id. (emphasis added and internal quotation marks omitted). The Code
created as part of the tribunal's judgment therefore emphasized as its first principle that
"[t]he voluntary consent of the human subject is absolutely essential." Id. at 181.
The American tribunal's conclusion that action that contravened the Code's first principle
constituted a crime against humanity is a lucid indication of the international legal
significance of the prohibition on nonconsensual medical experimentation. As Justices of
the Supreme Court have recognized, "[t]he medical trials at Nuremberg in 1947 deeply
impressed upon the world that experimentation with unknowing human subjects is morally
and legally unacceptable." United States v. Stanley, 483 U.S. 669, 687, 107 S.Ct. 3054, 97
L.Ed.2d 550 (1987) (Brennan, J., concurring in part and dissenting in part) (emphasis
added); see also id. at 709-10, 107 S.Ct. 3054 (O'Connor, J., concurring in part and
dissenting in part).
Moreover, both the legal principles articulated in the trials' authorizing documents and their
application in judgments at Nuremberg occupy a position of special importance in the
development of bedrock norms of international law. United States courts examining the
Nuremberg judgments have recognized that "[t]he universal and fundamental rights of
human beings identified by Nuremberg — rights against genocide, enslavement, and other
inhumane acts . . . — are the direct ancestors of the universal and fundamental norms
recognized as jus cogens," from which no derogation is permitted, irrespective of the
consent or practice of a given State. Siderman de Blake v. Republic of Arg., 965 F.2d 699,
715 (9th Cir. 1992) (cited in Sampson v. F.R.G., 250 F.3d 1145, 1150 (7th Cir. 2001)). As
Telford Taylor, who first served as an assistant to Justice Robert Jackson during his time
as Chief Prosecutor for the IMT and then became Chief of Counsel for War Crimes on the
Nuremberg trials held under the authority of Control Council Law No. 10, explained,
"Nuernberg was based on enduring [legal] principles and not on temporary political
expedients, and this fundamental point is apparent from the reaffirmation of the Nuernberg
principles in Control Council Law No. 10, and their application and refinement in the 12
judgments rendered under that law during the 3-year period, 1947 to 1949." Taylor, Report
on Nuernberg War Crimes Trials, at 107 (emphasis added).
Consistent with this view, the Code's first principle has endured: "[S]ignificant world opinion
has not come to the defense of the nature or manner in which the experiments were
conducted in the Nazi concentration camps." Bassiouni et al., supra, at 1641. Rather, since
Nuremberg, states throughout the world have shown through international accords and
domestic law-making that they consider the prohibition on nonconsensual medical
experimentation identified at Nuremberg as a norm of customary international law.
The Fourth Geneva Convention, which entered into force in 1950 and provides protection
to civilians in the time of war, elaborates on the application of the norm during armed
conflict. Article 32 of the convention prohibits civilian or military agents of the state parties
from conducting "medical or scientific experiments not necessitated by the medical
treatment of the protected person." Geneva Convention Relative to the Protection of
Civilian Persons in Time of War art. 32, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
According to the commentary, "[p]rotected persons must not in any circumstances be used
as `guinea pigs' for medical experiments." Commentary on the Geneva Conventions of 12
August 1949: IV Geneva Convention Relative to the Protection of Civilian Persons in Time
of War 224 (Oscar Uhler Henri Coursier eds., 1958). This commentary explains that the
prohibition is directly related to the first principle of the Nuremberg Code since "[i]n
prohibiting medical experiments on protected persons, the Diplomatic Conference wished
to abolish for ever the criminal practices from which thousands of persons suffered in the
death camps of the [second] world war." The practices involved human medical
experiments that were objectionable because they were nonconsensual. See Brandt, 2
Nuremberg Trials, at 183. The convention is legally-binding on 194 states that have ratified
it without reservation to Article 32. See International Committee of the Red Cross, Geneva
Conventions of 12 August 1949 State Parties, Signatories, Reservations and Declarations,
http://www.icrc.org/ihl.nsf/WebSign?Read Form id=375 ps=P.
In 1955, the draft International Covenants on Human Rights was revised to add a second
sentence to its prohibition of torture and cruel, inhuman or degrading treatment or
punishment. The addition provided that "[i]n particular, no one shall be subjected without
his free consent to medical or scientific experimentation involving risk, where such is not
required by his state of physical or mental health." Annotations on the text of the draft
International Covenants on Human Rights, at 31, U.N. GAOR, 10th Sess., Annexes,
agenda item 28(II), U.N. Doc. A/2929 (July 1, 1955). The clause was later revised to offer
the simpler and sweeping prohibition that "no one shall be subjected without his free
consent to medical or scientific experimentation." ICCPR, supra, at art. 7. This prohibition
became part of Article 7 of the ICCPR, which entered into force in 1976, and is legally
binding on the more than 160 States-Parties that have ratified the convention without
reservation to the provision. By its terms this prohibition is not limited to state actors; rather,
it guarantees individuals the right to be free from nonconsensual medical experimentation
by any entity — state actors, private actors, or state and private actors behaving in concert.
Although certain States-Parties to the ICCPR have made reservations or declarations with
respect to Article 7's prohibition of torture and cruel, inhuman or degrading treatment or
punishment, we are not aware of any similar qualification by a State-Party to the
prohibition of medical or scientific experimentation without the free consent of human
subjects. See Office of the United Nations High Commissioner for Human Rights,
International Covenant on Civil and Political Rights, Declarations and Reservations,
http://www2.ohchr.org/english/bodies/ratification/docs/Declarat ions
ReservationsICCPR.pdf.
Its status as a norm that states conceive as legally binding — and therefore part of
customary international law — is confirmed by Article 2 of the accord, which requires that
"[e]ach State Party . . . undertake[] to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant."
ICCPR art. 2(1). The international community's recognition in the ICCPR of its obligation to
protect humans against nonconsensual medical experimentation, regardless of the source
of the action, is powerful evidence of the prohibition's place in customary international law.
It is clear that, as the court mentioned in Sosa, the Universal Declaration of Human Rights
and the ICCPR themselves could not establish the relevant, applicable rule of international
law in that case. Sosa, 542 U.S. at 754, 124 S.Ct. 2739. Nonetheless, the ICCPR, when
viewed as a reaffirmation of the norm as articulated in the Nuremberg Code, is potent
authority for the universal acceptance of the prohibition on nonconsensual medical
experimentation. As we discuss below, see infra pp. 181-83, the fact that the prohibition on
medical experimentation on humans without consent has been consciously embedded by
Congress in our law and reaffirmed on numerous occasions by the FDA demonstrates
that the United States government views the norm as the source of a binding legal
obligation even though the United States has not ratified the ICCPR in full.
Khulumani makes clear that treaties that the United States has neither signed nor ratified
— let alone treaties like the ICCPR that the United States has signed but not ratified —
may evidence a customary international law norm for ATS purposes where the treaty has
been ratified widely and it is clear that the reason for the United States's failure to
subscribe to the treaty was unrelated to the particular norm in question. See
Khulumani, 504 F.3d at 276, 276 n. 9 (Katzmann, J., concurring).
In 1964, the World Medical Association adopted the Declaration of Helsinki, which
enunciated standards for obtaining informed consent from human subjects. It provided that
in clinical research combined with professional care, "[i]f at all possible, consistent with
patient psychology, the doctor should obtain the patient's freely given consent after the
patient has been given a full explanation," and that non-therapeutic clinical research on a
person "cannot be undertaken without his free consent, after he has been fully informed."
World Med. Ass'n, Declaration of Helsinki: Code of Ethics of the World Medical Association,
art. III(3a), G.A. Res. (1964),
http://www.pubmedcentral.nih.gov/picrender.fcgi?artid=1816102 blob-type=pdf. The
Declaration has since been amended five times. The informed consent provision now
provides that "subjects must be volunteers and informed participants in the research
project." Declaration of Helsinki, supra, at art. 20. The Declaration also requires that "[i]n
any research on human beings, each potential subject must be adequately informed of the
aims, methods, . . . anticipated benefits and potential risks of the study, and the discomfort
it may entail" and that researchers "obtain the subject's freely-given informed consent,
preferably in writing." Id. at art. 22.
Although the Declaration itself is non-binding, since the 1960s, it has spurred States to
regulate human experimentation, often by incorporating its informed consent requirement
into domestic laws or regulations. See Delon Human Sev S. Fluss, The World Medical
Association's Declaration of Helsinki: Historical and Contemporary Perspectives, 8-11 (July
24, 2001) (fifth draft), http://www.wma.net/e/ethiesunh/pdf/draft_historical_
contemporary_perspectives.pdf (describing legal and regulatory developments in Australia,
Belgium, Brazil, China, Israel, Japan, New Zealand, Norway, Switzerland, and the United
States following the Declaration of Helsinki). Currently, the laws and regulations of at least
eighty-four countries, including the United States, require the informed consent of human
subjects in medical research. That this conduct has been the subject of domestic
legislation is not, of course, in and of itself proof of a norm. See Flores, 414 F.3d at 249.
However, the incorporation of this norm into the laws of this country and this host of others
is a powerful indication of the international acceptance of this norm as a binding legal
obligation, where, as here, states have shown that the norm is of mutual concern by
including it in a variety of international accords.
The Department of Health and Human Services has compiled the laws, regulations, and
guidelines governing human subjects research in eighty-four countries. SeeOffice of
Human Research Prot., Dep't of Health Human Servs., International Compilation of Human
Subject Research Protections (2008),
http://www.hhs.gov/ohrp/international/HSPCompilation.pdf. It is uncontested that all of the
countries identified in this compilation require informed consent to medical experimentation.
The history of the norm in United States law demonstrates that it has been firmly
embedded for more than 45 years and — except for our dissenting colleague — its validity
has never been seriously questioned by any court. Congress mandated patient-subject
consent in drug research in 1962. Bassiouni et al., supra, at 1624 (citing 21 U.S.C. § 355(i)
(1976)). In response, the FDA promulgated its first regulations requiring the informed
consent of human subjects. Tellingly, the sources on which our government relied in
outlawing non-consensual human medical experimentation were the Nuremberg Code and
the Declaration of Helsinki, which suggests the government conceived of these sources'
articulation of the norm as a binding legal obligation. Bassiouni et al., supra, at 1625-26
(citing 21 C.F.R. § 310.102(h) (1980)). Today, FDA regulations require informed consent to
U.S. investigators' research, whether conducted domestically or in a foreign country, used
to support applications for the approval of new drugs. See 21 C.F.R. §§ 50.20, 50.23-.25,
50.27, 312.20, 312.120 (2008); 45 C.F.R. §§ 46.111, 46.116-.117 (2008).
The importance of informed consent to medical experimentation was reinforced with the
passage of the National Research Act in 1974, which established the National Commission
for the Protection of Human Subjects of Biomedical and Behavioral
Research. See National Research Act, Pub.L. 93-348, 88 Stat. 342 (codified as amended
in scattered sections of 42 U.S.C.). This body issued the Belmont Report: Ethical
Principles and Guidelines for the Protection of Human Subjects of Research in 1979,
which identifies basic ethical principles governing biomedical and behavioral research on
human subjects and requires informed consent. Nat'l Comm'n for the Prot. of Human
Subjects of Biomedical Behavioral Research, The Belmont Report: Ethical Principles and
Guidelines for the Protection of Human Subjects of Research, part C(1) (1979), available
at http://ohsr.od.nih.gov/guidelines/belmont.html#goc. Soon afterwards, the Department of
Health, Education and Welfare (later renamed the Department of Health and Human
Services) promulgated stricter regulations for ensuring informed consent in research
conducted or supported by federal departments or agencies. See U.S. Dep't of Health
Human Servs., Guidelines for the Conduct of Research Involving Human Subjects at the
National Institutes of Health, 17-18 (5th ed. 2004),
http://ohsr.od.nih.gov/guidelines/GrayBooklet 82404.pdf (referencing 45 C.F.R. pt. 46,
subpt. A (1981)).
The importance that the United States government attributes to this norm is demonstrated
by its willingness to use domestic law to coerce compliance with the norm throughout the
world. United States law requires that, as a predicate to FDA approval of any new drug,
both American and foreign sponsors of drug research involving clinical trials, whether
conducted here or abroad, procure informed consent from human subjects. 21 C.F.R. §§
312.20, 312.120 (2008); see also Dep't of Health Human Servs., Office of Inspector Gen.,
The Globalization of Clinical Trials 5 (2001), http://www.oig.hhs.gov/oei/reports/oei-01-00-
00190.pdf. Sponsors conducting research under an Investigational New Drug Application
("IND") are obligated to adhere to FDA regulations, which require informed consent. 21
C.F.R. § 312.20 (2008); The Globalization of Clinical Trials, supra, at 5. Prior to April 2008,
sponsors conducting research under non-IND guidelines were obligated to adhere to the
ethical principles of the 1989 version of the Declaration of Helsinki or the host country's
regulations, whichever offered greater protection to the human subject. 21 C.F.R. §
312.120 (2007); The Globalization of Clinical Trials, supra, at 5. The April 2008 revisions to
the non-IND guidelines reaffirmed the informed consent requirement. Human Subject
Protection: Foreign Clinical Studies Not Conducted Under an Investigational New Drug
Application, 73 Fed.Reg. 22,800, 22,801, 22,803, 22,804, 22,816 (Apr. 28, 2008) (codified
at 21 C.F.R. pt. 312). Foreign clinical studies not conducted under an IND must now
comply with the Good Clinical Practice guidelines ("GCP") promulgated by the International
Conference on Harmonisation of Technical Requirements for Registration of
Pharmaceuticals for Human Use, 62 Fed.Reg. 25,692 (May 9, 1997), which require
informed consent to medical experimentation. 21 C.F.R. § 312.120 (2008).
Additional international law sources support the norm's status as customary international
law. The European Union embraced the norm prohibiting nonconsensual medical
experimentation through a 2001 Directive passed by the European Parliament and the
Council of the European Union. The Directive accepted the informed consent principles of
the 1996 version of the Declaration of Helsinki. Council Directive 2001/20/EC, preamble
(2), 2001 O.J. (L 121) 37(EC) [hereinafter 2001 Clinical Trial Directive]. It also required
member States to adopt rules protecting individuals incapable of giving informed consent
and permitting clinical trials only where "the trial subject or, when the person is not able to
give informed consent, his legal representative has given his written consent after being
informed of the nature, significance, implications and risks of the clinical trial." Id.at art. (1),
(2)(d). The Directive further required all member States to implement by 2004 domestic
laws, regulations, and administrative provisions to comply with its informed consent
requirements. Id. at art. 22(1).
Since 1997, thirty-four member States of the Council of Europe have also signed the
Convention on Human Rights and Biomedicine, a binding convention and a source of
customary international law. Convention for the Protection of Human Rights and Dignity of
the Human Being with regard to the Application of Biology and Medicine: Convention on
Human Rights and Biomedicine, art. 5, 15-16, opened for signature Apr. 4, 1997, E.T.S.
No. 164, http://conventions.coe.int/Treaty/en/Treaties/htm1164.htm [hereinafter
Convention on Human Rights and Biomedicine]; Convention on Human Rights and
Biomedicine, Chart of Signatures and Ratifications as of Aug. 8, 2008,
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=164 CM=8 DF=8/8/2008
CL=ENG. It provides that an "intervention in the health field may only be carried out after
the person concerned has given free and informed consent to it" and that the informed
consent of human subjects is required for their involvement in medical research.
Convention on Human Rights and Biomedicine, supra, at art. 5. In 2005, the General
Conference of the United Nations Educational, Scientific and Cultural Organization
(UNESCO) adopted the Universal Declaration on Bioethics and Human Rights, which
requires "the prior, free, express and informed consent of the person concerned" for
research-oriented treatments. Universal Declaration on Bioethics and Human Rights,
UNESCO Gen. Conf. Res., at art. 6, 33rd Sess., 33 C/Resolution 36, (Oct. 19, 2005).
States-Parties to the Convention on Human Rights and Biomedicine are also required to
afford "appropriate judicial protection" to prevent or end infringements of the rights
protected by the Convention, including the right to informed consent to medical
experimentation. Convention on Human Rights and Biomedicine, supra, at art. 23.
This history illustrates that from its origins with the trial of the Nazi doctors at Nuremburg
through its evolution in international conventions, agreements, declarations, and domestic
laws and regulations, the norm prohibiting nonconsensual medical experimentation on
human subjects has become firmly embedded and has secured universal acceptance in
the community of nations. Unlike our dissenting colleague's customary international law
analysis, which essentially rests on the mistaken assumption that ratified international
treaties are the only valid sources of customary international law for ATS
purposes, see Dissent at 200-02, we reach this conclusion as a result of our review of the
multiplicity of sources — including international conventions, whether general or particular,
and international custom as identified through international agreements, declarations and a
consistent pattern of action by national law-making authorities — that our precedent
requires us to examine for the purpose of determining the existence of a norm of
customary international law. Our dissenting colleague's reasoning fails to engage the
incompatibility of nonconsensual human testing with key sources of customary
international law identified in Article 38 of the ICJ's statute, most importantly international
custom, as evidence of a general practice accepted as law, as well as the general
principles of law recognized by civilized nations. See supra pp. 174-75.
ii. Specificity Sosa requires that we recognize causes of action only to enforce those
customary international law norms that are no "less definite [in] content . . . than the
historical paradigms familiar when [the ATS] was enacted." Sosa, 542 U.S. at 732, 124
S.Ct. 2739. The norm prohibiting nonconsensual medical experimentation on human
subjects meets this requirement. In United States v. Smith, 18 U.S. (5 Wheat) 153, 159-61,
5 L.Ed. 57 (1820), Justice Story found that "whatever may be the diversity of definitions, . . .
all writers concur, in holding, that robbery or forcible depredations upon the sea . . . is
piracy." Id. at 161. We have little trouble concluding that a norm forbidding nonconsensual
human medical experimentation is every bit as concrete — indeed even more so — than
the norm prohibiting piracy that Story describes, or interference with the right of safe
conducts and the rights of ambassadors, which together are the paradigmatic norms
identified in Sosa. Id. at 724, 124 S.Ct. 2739. The Nuremberg Code, Article 7 of the ICCPR,
the Declaration of Helsinki, the Convention on Human Rights and Biomedicine, the
Universal Declaration on Bioethics and Human Rights, the 2001 Clinical Trial Directive,
and the domestic laws of at least eighty-four States all uniformly and unmistakably prohibit
medical experiments on human beings without their consent, thereby providing concrete
content for the norm. The appellants allege that Pfizer knowingly and purposefully
conducted such experiments on a large scale. Whatever uncertainty may exist at the
margin is irrelevant here because appellants allege a complete failure on the part of Pfizer
and the Nigerian government to inform appellants of the existence of the Trovan
experiments. These allegations, if true, implicate Pfizer and the Nigerian government in
conduct that is at the core of any reasonable iteration of the prohibition against
involuntary medical experimentation. While the prohibition in question applies to the
testing of drugs without the consent of human subjects on the scale Pfizer allegedly
conducted, we do not suggest that it would extend to instances of routine or isolated
failures by medical professionals to obtain informed consent, such as those arising from
simple negligence. The allegations in the complaints involve anything but a doctor's routine
or erroneous failure to obtain such consent from his patient.
At the fringe, disagreement exists over certain aspects of informed consent including, for
example, the way to best secure consent from illiterate or otherwise vulnerable
populations, see, e.g., Daniel W. Fitzgerald et al., Comprehension During Informed
Consent in a Less-Developed Country, 360 The Lancet 1301, 1301-02 (2002), and
whether informed consent is possible in double-blind experiments in which some subjects
are given placebos, see, e.g., Timothy S. Jost, The Globalization of Health Law: The Case
of Permissibility of Placebo-Based Research, 26 Am. J.L. Med. 175, 183-86 (2000). These
debates do not disturb the specificity of the basic norm at issue or the unanimity of world
opinion against medical experimentation on human subjects without their consent.
iii. Mutual Concern
Customary international law proscribes only transgressions that are of "mutual" concern to
States — "those involving States' actions performed . . . towards or with regard to the
other." Flores, 414 F.3d at 249 (differentiating matters of "mutual" concern from those of
"several" concern, in which "States are separately and independently interested"). Conduct
that States have prohibited through domestic legislation is also actionable under the ATS
as a violation of customary international law when nations of the world have demonstrated
"by means of express international accords" that the wrong is of mutual
concern. Filartiga, 630 F.2d at 888. An important, but not exclusive, component of this test
is a showing that the conduct in question is "capable of impairing international peace and
security." Flores, 414 F.3d at 249. Appellants have made both of these showings.
As we have seen, States throughout the world have entered into two express and binding
international agreements prohibiting nonconsensual medical experimentation: the ICCPR
and the Convention on Human Rights and Biomedicine. The entry of over 160 States into
these agreements and the European Union's passage of the 2001 Clinical Trial Directive
demonstrates that States have not only acted independently to outlaw large-scale, non-
consensual drug testing on humans, but they have also acted in concert to do so. In other
words, acting out of a sense of mutual concern, "the nations [of the world] have made it
their business, both through international accords and unilateral action," to demonstrate
their intention to eliminate conduct of the type alleged in the complaints. Filartiga, 630 F.2d
at 889.
The administration of drug trials without informed consent on the scale alleged in the
complaints poses a real threat to international peace and security. Over the last two
decades, pharmaceutical companies in industrialized countries have looked to poorer,
developing countries as sites for the medical research essential to the development of new
drugs. See James V. Lavery, Putting International Research Ethics Guidelines to Work for
the Benefit of Developing Countries, 4 Yale J. Health Pol'y L. Ethics 319, 320-21 (2004);
The Globalization of Clinical Trials, supra, at 8.Pharmaceutical companies recognize the
potential benefits of drug trials to poor nations and have sought to promote access to
medicines and health care in underserved populations through philanthropy and
partnership with governments and NGOs. See, e.g., PhRMA, Press Releases: Worldwide
Pharmaceutical Industry Launches Global Health Progress Initiative to Expand Efforts to
Improve Health in Developing Countries (April 16, 2008),
http://www.phrma.org/news_room/press_releases/global_health_pro gress_initiative_
launched_to_improve_health_in_developing_countries/(describing initiative by worldwide
pharmaceutical industry to "further access to medicines; build capacity of health workers
in developing nations; advocate for global action to address health challenges; and
continue R D to develop new tools to fight diseases that plague the developing world");
PhRMA, Profile2008: Pharmaceutical Industry 42 (2008),
http://www.phrma.org/files/2008%20Profile.pdf (describing contributions by American
pharmaceutical companies to the promotion of global access to medicines and health
care). This trend offers the possibility of enormous health benefits for the world community.
Life-saving drugs can potentially be developed more quickly and cheaply, and developing
countries may be given access to cutting edge medicines and treatments to assist
underresourced and understaffed public health systems, which grapple with life-
threatening diseases afflicting their populations.
In the United States, for example, the number of foreign clinical investigators conducting
drug research under an IND in creased sixteen-fold in the 1990s. Globalization of Clinical
Trials, supra, at 6.
These benefits are well acknowledged. See, e.g., Remigius N. Nwabueze, Ethical Review
of Research Involving Human Subjects in Nigeria: Legal and Policy Issues, 14 Ind. Int'l
Comp. L.Rev. 87, 102 (2003) (recognizing that clinical trials at times provide the only
access to innovative and effective health care in developing countries); David Wendler, et
al., The Standard of Care Debate: Can Research in Developing Countries Be Both Ethical
and Responsive to those Countries' Health Needs?, 94 Am. J. Pub. Health 923, 923 (2004)
(noting dramatic inequalities in health care world-wide and the potential of drug research to
better care for the world's poor).
Doctors Without Borders, the WHO, and other international health organizations, for
example, have called for increased corporate research interest in developing countries.
Sonia Shah, Globalizing Clinical Research, The Nation, June 13, 2002, at 3,
http://www.thenation.com/doc/20020701/shah. Ruth Faden, a bioethicist at Johns Hopkins,
stated, "What we need, if anything, is more health research in the developing world, not
less." Id. An HIV researcher observed that even when companies test drugs geared for
patients in the developed world through trials in developing countries, the testing "brings
benefits to the patients. They get special attention and potential therapy." Id.
The success of these efforts promises to play a major role in reducing the cross-border
spread of contagious diseases, which is a significant threat to international peace and
stability. The administration of drug trials without informed consent on the scale alleged in
the complaints directly threatens these efforts because such conduct fosters distrust and
resistance to international drug trials, cutting edge medical innovation, and critical
international public health initiatives in which pharmaceutical companies play a key role.
This case itself supplies an exceptionally good illustration of why this is so. The Associated
Press reported that the Trovan trials in Kano apparently engendered such distrust in the
local population that it was a factor contributing to an eleven month-long, local boycott of a
polio vaccination campaign in 2004, which impeded international and national efforts to
vaccinate the population against a polio outbreak with catastrophic results.According to the
World Health Organization, polio originating in Nigeria triggered a major international
outbreak of the disease between 2003 and 2006, causing it to spread across west, central,
and the Horn of Africa and the Middle East, and to re-infect twenty previously polio-free
countries.
Salisu Rabiu, Pfizer Asks Nigeria Court to Dismiss Case, The Associated Press, July 4,
2007, http://origin.foxnews.com/printer_friendly_wires/2007July04/0, 4675, Nigeria
Pfizer,00.html (reporting that the boycott of the Kano polio vaccination program is believed
to have "set back global eradication" of polio and to have "caus[ed] an outbreak that
spread the disease across Africa and into the Middle East"). The boycott also impaired the
efforts of American pharmaceutical companies to contribute to polio eradication by
donating over 130 million doses of polio vaccine to sixteen African countries since 1997.
PhRMA, Global Partnerships: Humanitarian Programs of the Pharmaceutical Industry in
Developing Nations 4 (2004), http://www.phrma.org/files/Global_Partnerships_2004.pdf.
World Health Organization, Poliomyelitis in Nigeria and West/Central Africa, June 18, 2008,
http://www.who.int/csr/don/2008_06_18/en/.
Other examples of the link between the cross-border spread of contagious disease and
international peace and stability come to mind, such as the outbreak of anti-U.S. riots in
South Korea as a result of fear that imported American beef will spread mad cow disease
to that country. See Choe Sang-Hun, South Korea Lifts Ban on U.S. Beef, New York
Times, June 26, 2008, http://www.nytimes.com/2008/06/26/world/asia/26korea.html.
The administration of drug trials without informed consent also poses threats to national
security by impairing our relations with other countries. Seven of the world's twelve largest
pharmaceutical manufacturers — a group that includes Pfizer — are American
companies. Global 500, Fortune, July 21, 2008,
http://money.cnn.com/magazines/fortune/globa1500/2008/ industries/21/index.html.
Consequently, American companies are likely to be sponsors of medical experiments on
human subjects abroad. As this case illustrates, the failure to secure consent for human
experimentation has the potential to generate substantial anti-American animus and
hostility. Unsurprisingly, as noted above, see supra pp. 201-02, our government actively
attempts to prevent this practice in foreign countries. For example, federal law requires
that data generated from testing on human subjects abroad that is used to seek regulatory
approval for a given drug must, at minimum, be the result of testing conducted consistent
with the requirements of informed consent. Consequently, the U.S. government denies
access to the U.S. market for any new drug unless the drug's research data is generated in
a manner consistent with the customary international law norm prohibiting drug trials on
human subjects without informed consent.
FDA data suggests the industry trend is to use foreign research to support applications for
new drug approvals in the United States. Since 1990 there has been an explosion in the
number of foreign clinical investigators conducting drug research that sponsors use for this
purpose. In 1990, there were 271 foreign investigators conducting research in 28 countries
in the FDA database. By 1999, the number had grown to 4,458 investigators working in 79
countries. Globalization of Clinical Trials, supra, at i.
For these reasons, we hold that the appellants have pled facts sufficient to state a cause of
action under the ATS for a violation of the norm of customary international law prohibiting
medical experimentation on human subjects without their consent. In such an instance,
ATS jurisdiction exists over plaintiffs' claims. The district court determined that the norm
existed, but concluded that because no single source recognizing the norm was legally
binding on the United States and created a private cause of action, it could not infer such a
right under the ATS. Presumably, on this basis, it simultaneously held that there was no
subject matter jurisdiction over plaintiffs' claims. Under Sosa, this approach was not
correct. Sosamakes clear that the critical inquiry is whether the variety of sources that we
are required to consult establishes a customary international law norm that is sufficiently
specific, universally accepted, and obligatory for courts to recognize a cause of action to
enforce the norm. Nothing in Sosa suggests that this inquiry can be halted if some of the
sources of international law giving rise to the norm are found not to be binding or not to
explicitly authorize a cause of action.
We believe that the issues raised by this appeal regarding customary international law are
framed by our analysis and by that of our dissenting colleague. He contends that our
analysis is created from "whole cloth." Dissent at 191. We believe that his approach to
customary international law is unselfconsciously reactionary and static. The approach does
not accommodate itself to the normative world that, by their commitments and conduct
over the past fifty years, states — including our own — have shown they believe to exist.
B. State Action
A private individual will be held liable under the ATS if he "acted in concert with" the state,
i.e., "under color of law." Kadic, 70 F.3d at 245. In making this determination, courts look to
the standards developed for finding state action in claims brought under 42 U.S.C. §
1983. Id. Under § 1983, state action may be found when "there is such a `close nexus
between the State and the challenged action' that seemingly private behavior `may be
fairly treated as that of the State itself.'" Brentwood Acad. v. Tenn. Secondary Sch. Athletic
Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (quoting Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). That
nexus may exist "where a private actor has operated as a willful participant in joint activity
with the State or its agents," Gorman-Bakos v. Cornell Coop. Extension of Schenectady
County, 252 F.3d 545, 551-52(2d Cir. 2001) (quoting Loce v. Time Warner Entertainment
Advance/Newhouse Partnership, 191 F.3d 256, 266 (2d Cir. 1999)), or "acts together with
state officials or with significant state aid," Kadic, 70 F.3d at 245. Pfizer meets this test.
The Appellants have alleged that the Nigerian government was involved in all stages of the
Kano test and participated in the conduct that violated international law. They allege that
the Nigerian government provided a letter of request to the FDA to authorize the export of
Trovan, arranged for Pfizer's accommodations in Kano, and facilitated the nonconsensual
testing in Nigeria's IDH in Kano. Despite overcrowding due to concurrent epidemics, the
Nigerian government extended the exclusive use of two hospital wards to Pfizer, providing
Pfizer with control over scarce public resources and the use of the hospital's staff and
facilities to conduct the Kano test, to the exclusion of MSF.
The unlawful conduct is alleged to have occurred in a Nigerian facility with the assistance
of the Nigerian government and government officials and/or employees from the IDH and
Aminu Kano Teaching Hospital. Pfizer's research team in Kano was comprised of three
American physicians, Dr. Abdulhamid Isa Dutse (a physician in the Aminu Kano Teaching
Hospital), and three other Nigerian doctors. The American and Nigerian members of
Pfizer's team allegedly jointly administered the Kano test. Finally, in addition to assisting
with the Kano test, Nigerian officials are alleged to have conspired to cover up the
violations by silencing Nigerian physicians critical of the test and by back-dating an
"approval letter" that the FDA and international protocol required to be provided prior to
conducting the medical experiment. In addition to these allegations, the Adamu plaintiffs
explicitly allege that the Nigerian government "was intimately involved and contributed,
aided, assisted and facilitated Pfizer's efforts to conduct the Trovan test," "acted in concert
with Pfizer," and, according to a Nigerian physician involved in the Trovan experimentation,
appeared to "back[]" the testing. At the pleading stage, these contentions meet the state
action test because they adequately allege that the violations occurred as the result of
concerted action between Pfizer and the Nigerian government.
II. Forum Non Conveniens
As an alternative to dismissal for failure to state a claim under the ATS, the district court
dismissed the actions on the ground of forum non conveniens. Appellants raised this issue
on appeal. Ordinarily, we review a forum non conveniens dismissal for abuse of
discretion. Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153(2d Cir. 2005).
Since filing this appeal, however, Pfizer has notified the Court that in light of recent
developments, in particular the initiation of proceedings by the federal government of
Nigeria and the state of Kano against Pfizer and certain of its employees, it would not seek
affirmance of the judgment on the basis of forum non conveniens. The appellants agreed
and also requested that the issue be remanded. We accede to this request.
Although we are not now called upon definitively to review the district court's application
of forum non conveniens, in view of the frequency with which this issue has arisen and
remained unsettled in this case, we offer additional guidance to assist the parties and the
district court. The three-step analysis set forth in Iragorri v. United Techs. Corp., 274 F.3d
65, 71-75 (2d Cir. 2001) (en banc), applies. In this litigation, the second step of the
analysis, which requires the district court to consider the adequacy of the alternative forum,
is pivotal. Dismissal is not appropriate if an adequate and presently available alternative
forum does not exist. Norex, 416 F.3d at 159. A forum in which defendants are amenable
to service of process and which permits litigation of the dispute is generally
adequate. Id. at 157. Such a forum may nevertheless be inadequate if it does not permit
the reasonably prompt adjudication of a dispute, if the forum is not presently available, or if
the forum provides a remedy so clearly unsatisfactory or inadequate that it is tantamount to
no remedy at all. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254-55 n. 22, 102 S.Ct.
252, 70 L.Ed.2d 419 (1981); USHA (India), Ltd. v. Honeywell Int'l, Inc., 421 F.3d 129,
136 (2d Cir. 2005); Norex, 416 F.3d at 160.
The defendant bears the burden of establishing that a presently available and adequate
alternative forum exists, and that the balance of private and public interest factors tilts
heavily in favor of the alternative forum. USHA (India), Ltd., 421 F.3d at 135; PT United
Can Co. v. Crown Cork Seal Co., Inc., 138 F.3d 65, 74 (2d Cir. 1998). Absent a showing of
inadequacy by a plaintiff, "considerations of comity preclude a court from adversely judging
the quality of a foreign justice system." PT United Can Co., 138 F.3d at 73. Accordingly,
while the plaintiff bears the initial burden of producing evidence of corruption, delay or lack
of due process in the foreign forum, the defendant bears the ultimate burden of persuasion
as to the adequacy of the forum. See, e.g., Norex, 416 F.3d at 159-160.
When the district court granted Pfizer's motion, it identified the pivotal issue as whether the
plaintiffs produced sufficient evidence to show that Nigeria is an inadequate alternative
forum. Abdullahi III, 2005 WL 1870811, at *15. Having found that they had not, it
concluded that Nigeria was an adequate forum. Id. at * 16-18. In so doing, the district court
omitted an analysis of whether Pfizer discharged its burden of persuading the court as to
the adequacy and present availability of the Nigerian forum and improperly placed on
plaintiffs the burden of proving that the alternative forum is inadequate. Cf. DiRienzo v.
Philip Servs. Corp., 294 F.3d 21, 30 (2d Cir. 2002) (holding that it is error not "to hold
defendants to their burden of proof of the Gilbert factors). On remand, the district court will
have an opportunity to reassess this issue, as well as the relationship between
Fed.R.Civ.P. 44.1 and the Federal Rules of Evidence.
III. Choice of Law
The district court dismissed the Adamu plaintiffs' claims under the Connecticut Unfair
Trade Practices Act and the Connecticut Products Liability Act on the ground that
Connecticut choice of law principles applied and called for the application of Nigerian
law. Adamu, 399 F.Supp.2d at 501-03. "We review the district court's choice of law de
novo." Fin. One Pub. Co. Ltd. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 331 (2d Cir.
2005).
The district court correctly determined that Connecticut choice-of-law rules applied
because it was obligated to apply the state law that would have been applicable if the case
had not been transferred from Connecticut to New York. See Van Dusen v. Barrack, 376
U.S. 612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). Under Connecticut law, lex loci delicti,
"the doctrine that the substantive rights and obligations arising out of a tort controversy are
determined by the law of the place of injury," typically applies. O'Connor v. O'Connor, 201
Conn. 632, 637, 519 A.2d 13 (1986). Lex loci delicti would require the application of
Nigerian law because the Adamu plaintiffs' injuries are alleged to have occurred there.
Connecticut, however, has conspicuously retreated from a rigid application of the doctrine.
The Connecticut Supreme Court held that lex loci delicti does not apply to a tort claim
when doing so would undermine expectations of the parties or an important state policy,
produce an arbitrary and irrational result, or where "reason and justice" counsel for the
application of a different principle. Id. at 637, 648, 650, 519 A.2d 13. In such cases,
Connecticut courts are required to apply the "most significant relationship" analysis set
forth in the Restatement (Second) of Conflict of Laws §§ 6 145 (1971) [hereinafter
Restatement (Second)]. O'Connor, 201 Conn. at 649-50, 519 A.2d 13.
Section 145(1) of the Restatement provides that "[t]he rights and liabilities of the parties
with respect to an issue in tort are determined by the local law of the state which, with
respect to that issue, has the most significant relationship to the occurrence and the
parties under the principles stated in § 6." Restatement (Second) § 145(1). Section 6(2), in
turn, provides that where a state is not guided by a statutory directive on choice of law,
the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Restatement (Second) § 6(2). The Connecticut Supreme Court has determined that
Section 145(2) provides courts with guidance regarding the evaluation of the policy
choices set out in Sections 145(1) and 6(2). O'Connor, 201 Conn. at 652, 519 A.2d 13.
Section 145(2) assists with the application of the principles of Section 6 to tort cases by
calling for consideration of:
(a) the place where the injury occurred,
 (b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place

of business of the parties, and

(d) the place where the relationship, if any, between the parties is
centered.

Restatement (Second) § 145(2). These factors are "to be evaluated according to their
relative importance with respect to the particular issue." Id.

Hasegawa v. Kitamura
The district court correctly decided to apply Sections 6 and 145 of the Restatement rather
than lex loci delicti It applied the factors in Section 145(2) to determine whether
Connecticut or Nigeria has the most significant relationship to the conduct at issue, which it G.R. No. 149177 November 23, 2007
identified as "Pfizer's failure to inform the children or their parents about the potential
problems with Trovan, and the administration of Trovan and low dosage of KAZUHIRO HASEGAWA and NIPPON ENGINEERING CONSULTANTS CO.,
Ceftriaxone." Adamu, 399 F.Supp.2d at 503 (citations omitted). It reasoned that "the LTD., Petitioners,
Nigerian contacts to this litigation are stronger than Connecticut's" and noted in particular vs.
that both the plaintiffs' injuries and Pfizer's alleged conduct occurred in Nigeria, that the MINORU KITAMURA, Respondent.
plaintiffs were Nigerian residents, and that "the parties' relationship is centered" in
Nigeria. Id. It determined that most of the factors of Section 145(2) point toward applying DECISION
Nigerian law and that the "sole basis" for the applicability of Connecticut law was that
"Pfizer performed research and development with respect to Trovan and planned the
experiment in Connecticut." Id. For these reasons, it concluded that Nigeria's interests NACHURA, J.:
were superior and that its law should apply. Id.
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court
Although the district court correctly identified some of the pertinent factors, it ultimately assailing the April 18, 2001 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No.
erred in its application of the "most significant relationship" test because it did not factor 60827, and the July 25, 2001 Resolution2 denying the motion for reconsideration thereof.
into its Section 145(2) analysis the integral factors set out in Section 6(2). It did not, for
example, discuss "the relevant policies of the forum" or "the relevant policies of other On March 30, 1999, petitioner Nippon Engineering Consultants Co., Ltd. (Nippon), a
interested states and the relative interests of those states in the determination of the Japanese consultancy firm providing technical and management support in the
particular issue." Restatement (Second) § 6(2)(b)-(c). Nor did it analyze what "justified infrastructure projects of foreign governments, 3 entered into an Independent Contractor
expectations" existed that could have prompted Pfizer reasonably to believe that its Agreement (ICA) with respondent Minoru Kitamura, a Japanese national permanently
conduct in Connecticut would not expose it to Connecticut law, or how Pfizer would have residing in the Philippines.4 The agreement provides that respondent was to extend
been disadvantaged by litigating these claims in Connecticut. Id. § 6(2)(d). Finally, the professional services to Nippon for a year starting on April 1, 1999. 5 Nippon then assigned
district court did not evaluate its own ability to determine and apply Connecticut, as respondent to work as the project manager of the Southern Tagalog Access Road (STAR)
opposed to Nigerian, law. Id. § 6(2)(g). For these reasons, we vacate the dismissal of the Project in the Philippines, following the company's consultancy contract with the Philippine
state law claims and remand to the district court for further consideration. Government.6

CONCLUSION When the STAR Project was near completion, the Department of Public Works and
Highways (DPWH) engaged the consultancy services of Nippon, on January 28, 2000, this
For the foregoing reasons, we REVERSE the judgments of the district court and REMAND time for the detailed engineering and construction supervision of the Bongabon-Baler Road
for further proceedings. Improvement (BBRI) Project.7 Respondent was named as the project manager in the
contract's Appendix 3.1.8
Judge WESLEY dissents in a separate opinion.
On February 28, 2000, petitioner Kazuhiro Hasegawa, Nippon's general manager for its
International Division, informed respondent that the company had no more intention of
automatically renewing his ICA. His services would be engaged by the company only up to
the substantial completion of the STAR Project on March 31, 2000, just in time for the
ICA's expiry.9
Threatened with impending unemployment, respondent, through his lawyer, requested a
negotiation conference and demanded that he be assigned to the BBRI project. Nippon
insisted that respondent’s contract was for a fixed term that had already expired, and
refused to negotiate for the renewal of the ICA. 10
As he was not able to generate a positive response from the petitioners, respondent
consequently initiated on June 1, 2000 Civil Case No. 00-0264 for specific performance
and damages with the Regional Trial Court of Lipa City.11
For their part, petitioners, contending that the ICA had been perfected in Japan and
executed by and between Japanese nationals, moved to dismiss the complaint for lack of
jurisdiction. They asserted that the claim for improper pre-termination of respondent's ICA
could only be heard and ventilated in the proper courts of Japan following the principles
of lex loci celebrationis and lex contractus.12
In the meantime, on June 20, 2000, the DPWH approved Nippon's request for the
replacement of Kitamura by a certain Y. Kotake as project manager of the BBRI Project. 13
On June 29, 2000, the RTC, invoking our ruling in Insular Government v. Frank14 that
matters connected with the performance of contracts are regulated by the law prevailing at
the place of performance,15 denied the motion to dismiss.16 The trial court subsequently
denied petitioners' motion for reconsideration,17 prompting them to file with the appellate
court, on August 14, 2000, their first Petition for Certiorari under Rule 65 [docketed as CA-
G.R. SP No. 60205].18 On August 23, 2000, the CA resolved to dismiss the petition on
procedural grounds—for lack of statement of material dates and for insufficient verification
and certification against forum shopping.19 An Entry of Judgment was later issued by the
appellate court on September 20, 2000.20
Aggrieved by this development, petitioners filed with the CA, on September 19, 2000, still
within the reglementary period, a second Petition for Certiorari under Rule 65 already
stating therein the material dates and attaching thereto the proper verification and
certification. This second petition, which substantially raised the same issues as those in
the first, was docketed as CA-G.R. SP No. 60827.21
Ruling on the merits of the second petition, the appellate court rendered the assailed April
18, 2001 Decision22finding no grave abuse of discretion in the trial court's denial of the
motion to dismiss. The CA ruled, among others, that the principle of lex loci
celebrationis was not applicable to the case, because nowhere in the pleadings was the
validity of the written agreement put in issue. The CA thus declared that the trial court was
correct in applying instead the principle of lex loci solutionis.23
Petitioners' motion for reconsideration was subsequently denied by the CA in the assailed
July 25, 2001 Resolution.24
Remaining steadfast in their stance despite the series of denials, petitioners instituted the
instant Petition for Review on Certiorari25 imputing the following errors to the appellate
court:
A. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE
TRIAL COURT VALIDLY EXERCISED JURISDICTION OVER THE INSTANT
CONTROVERSY, DESPITE THE FACT THAT THE CONTRACT SUBJECT MATTER OF
THE PROCEEDINGS A QUO WAS ENTERED INTO BY AND BETWEEN TWO
JAPANESE NATIONALS, WRITTEN WHOLLY IN THE JAPANESE LANGUAGE AND
EXECUTED IN TOKYO, JAPAN.
B. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN OVERLOOKING THE
NEED TO REVIEW OUR ADHERENCE TO THE PRINCIPLE OF LEX LOCI
SOLUTIONIS IN THE LIGHT OF RECENT DEVELOPMENT[S] IN PRIVATE
INTERNATIONAL LAWS.26
The pivotal question that this Court is called upon to resolve is whether the subject matter
jurisdiction of Philippine courts in civil cases for specific performance and damages
involving contracts executed outside the country by foreign nationals may be assailed on
the principles of lex loci celebrationis, lex contractus, the "state of the most significant
relationship rule," or forum non conveniens.
However, before ruling on this issue, we must first dispose of the procedural matters raised
by the respondent.
Kitamura contends that the finality of the appellate court's decision in CA-G.R. SP No.
60205 has already barred the filing of the second petition docketed as CA-G.R. SP No.
60827 (fundamentally raising the same issues as those in the first one) and the instant
petition for review thereof.
We do not agree. When the CA dismissed CA-G.R. SP No. 60205 on account of the
petition's defective certification of non-forum shopping, it was a dismissal without
prejudice.27 The same holds true in the CA's dismissal of the said case due to defects in
the formal requirement of verification28 and in the other requirement in Rule 46 of the Rules
of Court on the statement of the material dates.29 The dismissal being without prejudice,
petitioners can re-file the petition, or file a second petition attaching thereto the appropriate
verification and certification—as they, in fact did—and stating therein the material dates,
within the prescribed period30 in Section 4, Rule 65 of the said Rules. 31
The dismissal of a case without prejudice signifies the absence of a decision on the merits
and leaves the parties free to litigate the matter in a subsequent action as though the
dismissed action had not been commenced. In other words, the termination of a case not
on the merits does not bar another action involving the same parties, on the same subject
matter and theory.32
Necessarily, because the said dismissal is without prejudice and has no res judicata effect,
and even if petitioners still indicated in the verification and certification of the
second certiorari petition that the first had already been dismissed on procedural
grounds,33 petitioners are no longer required by the Rules to indicate in their certification of
non-forum shopping in the instant petition for review of the second certiorari petition, the
status of the aforesaid first petition before the CA. In any case, an omission in the
certificate of non-forum shopping about any event that will not constitute res judicata and
litis pendentia, as in the present case, is not a fatal defect. It will not warrant the dismissal
and nullification of the entire proceedings, considering that the evils sought to be
prevented by the said certificate are no longer present. 34
The Court also finds no merit in respondent's contention that petitioner Hasegawa is only
authorized to verify and certify, on behalf of Nippon, the certiorari petition filed with the CA
and not the instant petition. True, the Authorization 35 dated September 4, 2000, which is
attached to the second certiorari petition and which is also attached to the instant petition
for review, is limited in scope—its wordings indicate that Hasegawa is given the authority
to sign for and act on behalf of the company only in the petition filed with the appellate
court, and that authority cannot extend to the instant petition for review. 36 In a plethora of
cases, however, this Court has liberally applied the Rules or even suspended its
application whenever a satisfactory explanation and a subsequent fulfillment of the
requirements have been made. 37 Given that petitioners herein sufficiently explained their
misgivings on this point and appended to their Reply 38 an updated Authorization39 for
Hasegawa to act on behalf of the company in the instant petition, the Court finds the same
as sufficient compliance with the Rules.
However, the Court cannot extend the same liberal treatment to the defect in the
verification and certification. As respondent pointed out, and to which we agree, Hasegawa
is truly not authorized to act on behalf of Nippon in this case. The aforesaid September 4,
2000 Authorization and even the subsequent August 17, 2001 Authorization were issued
only by Nippon's president and chief executive officer, not by the company's board of
directors. In not a few cases, we have ruled that corporate powers are exercised by the
board of directors; thus, no person, not even its officers, can bind the corporation, in the
absence of authority from the board.40 Considering that Hasegawa verified and certified
the petition only on his behalf and not on behalf of the other petitioner, the petition has to
be denied pursuant to Loquias v. Office of the Ombudsman.41 Substantial compliance will
not suffice in a matter that demands strict observance of the Rules. 42 While technical rules
of procedure are designed not to frustrate the ends of justice, nonetheless, they are
intended to effect the proper and orderly disposition of cases and effectively prevent the
clogging of court dockets.43
Further, the Court has observed that petitioners incorrectly filed a Rule 65 petition to
question the trial court's denial of their motion to dismiss. It is a well-established rule that
an order denying a motion to dismiss is interlocutory, and cannot be the subject of the
extraordinary petition for certiorari or mandamus. The appropriate recourse is to file an
answer and to interpose as defenses the objections raised in the motion, to proceed to trial,
and, in case of an adverse decision, to elevate the entire case by appeal in due
course.44 While there are recognized exceptions to this rule,45 petitioners' case does not
fall among them.
This brings us to the discussion of the substantive issue of the case.
Asserting that the RTC of Lipa City is an inconvenient forum, petitioners question its
jurisdiction to hear and resolve the civil case for specific performance and damages filed
by the respondent. The ICA subject of the litigation was entered into and perfected in
Tokyo, Japan, by Japanese nationals, and written wholly in the Japanese language. Thus,
petitioners posit that local courts have no substantial relationship to the parties 46 following
the [state of the] most significant relationship rule in Private International Law. 47
The Court notes that petitioners adopted an additional but different theory when they
elevated the case to the appellate court. In the Motion to Dismiss 48 filed with the trial court,
petitioners never contended that the RTC is an inconvenient forum. They merely argued
that the applicable law which will determine the validity or invalidity of respondent's claim is
that of Japan, following the principles of lex loci celebrationis and lex contractus.49 While
not abandoning this stance in their petition before the appellate court, petitioners
on certiorari significantly invoked the defense of forum non conveniens.50 On petition for
review before this Court, petitioners dropped their other arguments, maintained the forum
non conveniens defense, and introduced their new argument that the applicable principle
is the [state of the] most significant relationship rule. 51
Be that as it may, this Court is not inclined to deny this petition merely on the basis of the
change in theory, as explained in Philippine Ports Authority v. City of Iloilo.52 We only
pointed out petitioners' inconstancy in their arguments to emphasize their incorrect
assertion of conflict of laws principles.
To elucidate, in the judicial resolution of conflicts problems, three consecutive phases are
involved: jurisdiction, choice of law, and recognition and enforcement of judgments.
Corresponding to these phases are the following questions: (1) Where can or should
litigation be initiated? (2) Which law will the court apply? and (3) Where can the resulting
judgment be enforced?53
Analytically, jurisdiction and choice of law are two distinct concepts. 54 Jurisdiction
considers whether it is fair to cause a defendant to travel to this state; choice of law asks
the further question whether the application of a substantive law which will determine the
merits of the case is fair to both parties. The power to exercise jurisdiction does not
automatically give a state constitutional authority to apply forum law. While jurisdiction and
the choice of the lex fori will often coincide, the "minimum contacts" for one do not always
provide the necessary "significant contacts" for the other. 55 The question of whether the
law of a state can be applied to a transaction is different from the question of whether the
courts of that state have jurisdiction to enter a judgment. 56
In this case, only the first phase is at issue—jurisdiction.1âwphi1 Jurisdiction, however,
has various aspects. For a court to validly exercise its power to adjudicate a controversy, it
must have jurisdiction over the plaintiff or the petitioner, over the defendant or the
respondent, over the subject matter, over the issues of the case and, in cases involving
property, over the res or the thing which is the subject of the litigation. 57 In assailing the
trial court's jurisdiction herein, petitioners are actually referring to subject matter jurisdiction.
Jurisdiction over the subject matter in a judicial proceeding is conferred by the sovereign
authority which establishes and organizes the court. It is given only by law and in the
manner prescribed by law.58 It is further determined by the allegations of the complaint
irrespective of whether the plaintiff is entitled to all or some of the claims asserted
therein.59 To succeed in its motion for the dismissal of an action for lack of jurisdiction over
the subject matter of the claim,60 the movant must show that the court or tribunal cannot
act on the matter submitted to it because no law grants it the power to adjudicate the
claims.61
In the instant case, petitioners, in their motion to dismiss, do not claim that the trial court is
not properly vested by law with jurisdiction to hear the subject controversy for, indeed, Civil
Case No. 00-0264 for specific performance and damages is one not capable of pecuniary
estimation and is properly cognizable by the RTC of Lipa City.62 What they rather raise as
grounds to question subject matter jurisdiction are the principles of lex loci
celebrationis and lex contractus, and the "state of the most significant relationship rule."
The Court finds the invocation of these grounds unsound.
Lex loci celebrationis relates to the "law of the place of the ceremony"63 or the law of the
place where a contract is made.64 The doctrine of lex contractus or lex loci
contractus means the "law of the place where a contract is executed or to be
performed."65 It controls the nature, construction, and validity of the contract66 and it may
pertain to the law voluntarily agreed upon by the parties or the law intended by them either
expressly or implicitly.67 Under the "state of the most significant relationship rule," to
ascertain what state law to apply to a dispute, the court should determine which state has
the most substantial connection to the occurrence and the parties. In a case involving a
contract, the court should consider where the contract was made, was negotiated, was to
be performed, and the domicile, place of business, or place of incorporation of the
parties.68 This rule takes into account several contacts and evaluates them according to
their relative importance with respect to the particular issue to be resolved. 69
Since these three principles in conflict of laws make reference to the law applicable to a
dispute, they are rules proper for the second phase, the choice of law. 70 They determine
which state's law is to be applied in resolving the substantive issues of a conflicts
problem.71 Necessarily, as the only issue in this case is that of jurisdiction, choice-of-law
rules are not only inapplicable but also not yet called for.
Further, petitioners' premature invocation of choice-of-law rules is exposed by the fact that
they have not yet pointed out any conflict between the laws of Japan and ours. Before
determining which law should apply, first there should exist a conflict of laws situation
requiring the application of the conflict of laws rules. 72 Also, when the law of a foreign
country is invoked to provide the proper rules for the solution of a case, the existence of
such law must be pleaded and proved.73
It should be noted that when a conflicts case, one involving a foreign element, is brought
before a court or administrative agency, there are three alternatives open to the latter in
disposing of it: (1) dismiss the case, either because of lack of jurisdiction or refusal to
assume jurisdiction over the case; (2) assume jurisdiction over the case and apply the
internal law of the forum; or (3) assume jurisdiction over the case and take into account or
apply the law of some other State or States. 74 The court’s power to hear cases and
controversies is derived from the Constitution and the laws. While it may choose to
recognize laws of foreign nations, the court is not limited by foreign sovereign law short of
treaties or other formal agreements, even in matters regarding rights provided by foreign
sovereigns.75
Neither can the other ground raised, forum non conveniens,76 be used to deprive the trial
court of its jurisdiction herein. First, it is not a proper basis for a motion to dismiss because
Section 1, Rule 16 of the Rules of Court does not include it as a ground. 77 Second,
whether a suit should be entertained or dismissed on the basis of the said doctrine
depends largely upon the facts of the particular case and is addressed to the sound
discretion of the trial court.78 In this case, the RTC decided to assume jurisdiction. Third,
the propriety of dismissing a case based on this principle requires a factual determination;
hence, this conflicts principle is more properly considered a matter of defense.79
Accordingly, since the RTC is vested by law with the power to entertain and hear the civil
case filed by respondent and the grounds raised by petitioners to assail that jurisdiction are
inappropriate, the trial and appellate courts correctly denied the petitioners’ motion to
dismiss.
WHEREFORE, premises considered, the petition for review on certiorari is DENIED.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
Extraterritoriality
SMALL
v.
UNITED STATES
No. 03-750.
Supreme Court of United States.
Argued November 3, 2004.
Decided April 26, 2005.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT.
*386 BREYER, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR,
SOUTER, and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion, in which
SCALIA and KENNEDY, JJ., joined, post, p. 394. REHNQUIST, C. J., took no part in the
decision of the case.
Paul D. Boas argued the cause for petitioner. With him on the briefs was Stephen P.
Halbrook.
Patricia A. Millett argued the cause for the United States. With her on the brief were Acting
Solicitor General Clement, Assistant Attorney General Wray, Deputy Solicitor General
Dreeben, and John A. Drennan.
*387 JUSTICE BREYER delivered the opinion of the Court.
The United States Criminal Code makes it
"unlawful for any person . . . who has been convicted in any court of,
a crime punishable by imprisonment for a term exceeding one year . . .
to . . . possess . . . any firearm." 18 U.S.C. § 922(g)(1) (emphasis
added).
The question before us focuses upon the words "convicted in any court." Does this phrase
apply only to convictions entered in any domestic court or to foreignconvictions as well?
We hold that the phrase encompasses only domestic, not foreign, convictions.
I court" here.
In 1994 petitioner, Gary Small, was convicted in a Japanese court of having tried to
smuggle several pistols, a rifle, and ammunition into Japan. Small was sentenced to five
years' imprisonment. 183 F. Supp. 2d 755, 757, n. 3 (WD Pa. 2002). After his release,
Small returned to the United States, where he bought a gun from a Pennsylvania gun
dealer. Federal authorities subsequently charged Small under the "unlawful gun
possession" statute here at issue. 333 F.3d 425, 426 (CA3 2003). Small pleaded guilty
while reserving the right to challenge his conviction on the ground that his earlier
conviction, being a foreign conviction, fell outside the scope of the illegal gun possession
statute. The Federal District Court rejected Small's argument, as did the Court of Appeals
for the Third Circuit. 183 F. Supp. 2d, at 759; 333 F.3d, at 427, n. 2. Because the Circuits
disagree about the matter, we granted certiorari. Compare United States v. Atkins, 872
F.2d 94, 96 (CA4 1989) ("convicted in any court" includes foreign convictions); United
States v. Winson, 793 F.2d 754, 757-759 (CA6 1986) (same), with United
States v. Gayle, 342 F.3d 89, 95 (CA2 2003) ("convicted in any court" does not include
foreign convictions); United States v. Concha, 233 F.3d 1249, 1256 (CA10 2000) (same).
*388 II
A would include a conviction for conduct that domestic law punishes far less severely.
The question before us is whether the statutory reference "convicted in any court" includes
a conviction entered in a foreign court. The word "any" considered alone cannot answer
this question. In ordinary life, a speaker who says, "I'll see any film," may or may not mean
to include films shown in another city. In law, a legislature that uses the statutory phrase
"`any person'" may or may not mean to include "`persons'" outside "the jurisdiction of the
state." See, e.g., United States v. Palmer, 3 Wheat. 610, 631 (1818) (Marshall, C. J.)
("[G]eneral words," such as the word "`any,'" must "be limited" in their application "to those
objects to which the legislature intended to apply them"); Nixon v. Missouri Municipal
League, 541 U.S. 125, 132 (2004) ("`any'" means "different things depending upon the
setting"); United States v. Alvarez-Sanchez, 511 U.S. 350, 357 (1994) ("[R]espondent errs
in placing dispositive weight on the broad statutory reference to `any' law enforcement
officer or agency without considering the rest of the statute"); Middlesex County Sewerage
Authority v. National Sea Clammers Assn., 453 U.S. 1, 15-16 (1981) (it is doubtful that the
phrase "`any statute'" includes the very statute in which the words appear); Flora v. United
States, 362 U.S. 145, 149 (1960) ("`[A]ny sum,'" while a "catchall" phrase, does not "define
what it catches"). Thus, even though the word "any" demands a broad interpretation,
see, e.g., United States v. Gonzales, 520 U.S. 1, 5 (1997), we must look beyond that word
itself.
In determining the scope of the statutory phrase we find help in the "commonsense notion
that Congress generally legislates with domestic concerns in mind." Smith v. United
States, 507 U.S. 197, 204, n. 5 (1993). This notion has led the Court to adopt the legal
presumption that Congress ordinarily intends its statutes to have domestic, not
extraterritorial, *389 application. See Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949);
see also Palmer, supra, at 631 ("The words `any person or persons,' are broad enough to
comprehend every human being" but are "limited to cases within the jurisdiction of the
state"); EEOCv. Arabian American Oil Co., 499 U.S. 244, 249-251 (1991). That
presumption would apply, for example, were we to consider whether this statute prohibits
unlawful gun possession abroad as well as domestically. And, although the presumption
against extraterritorial application does not apply directly to this case, we believe a similar
assumption is appropriate when we consider the scope of the phrase "convicted in any
For one thing, the phrase describes one necessary portion of the "gun possession" activity
that is prohibited as a matter of domestic law. For another, considered as a group, foreign
convictions differ from domestic convictions in important ways. Past foreign convictions for
crimes punishable by more than one year's imprisonment may include a conviction for
conduct that domestic laws would permit, for example, for engaging in economic conduct
that our society might encourage. See, e.g., Art. 153 of the Criminal Code of the Russian
Soviet Federated Socialist Republic, in Soviet Criminal Law and Procedure 171 (H.
Berman & J. Spindler transls. 2d ed. 1972) (criminalizing "Private Entrepreneurial Activity");
Art. 153, id., at 172 (criminalizing "Speculation," which is defined as "the buying up and
reselling of goods or any other articles for the purpose of making a profit"); cf., e.g., Gaceta
Oficial de la Republica de Cuba, ch. II, Art. 103, p. 68 (Dec. 30, 1987) (forbidding
propaganda that incites against the social order, international solidarity, or the Communist
state). They would include a conviction from a legal system that is inconsistent with an
American understanding of fairness. See, e.g., U.S. Dept. of State, Country Reports on
Human Rights Practices for 2003, Submitted to the House Committee on International
Relations and the Senate Committee on Foreign Relations, 108th Cong., 2d Sess., 702-
705, *390 1853, 2023 (Joint Comm. Print 2004) (describing failures of "due process" and
citing examples in which "the testimony of one man equals that of two women"). And they
See, e.g., Singapore Vandalism Act, ch. 108, §§ 2, 3, III Statutes of Republic of Singapore,
pp. 257-258 (imprisonment for up to three years for an act of vandalism). Thus, the key
statutory phrase "convicted in any court of, a crime punishable by imprisonment for a term
exceeding one year" somewhat less reliably identifies dangerous individuals for the
purposes of U.S. law where foreign convictions, rather than domestic convictions, are at
issue.
In addition, it is difficult to read the statute as asking judges or prosecutors to refine its
definitional distinctions where foreign convictions are at issue. To somehow weed out
inappropriate foreign convictions that meet the statutory definition is not consistent with the
statute's language; it is not easy for those not versed in foreign laws to accomplish; and it
would leave those previously convicted in a foreign court (say, of economic crimes)
uncertain about their legal obligations. Cf. 1 United States Sentencing Commission,
Guidelines Manual § 4A1.2(h) (Nov. 2004) ("[S]entences resulting from foreign convictions
are not counted" as a "prior sentence" for criminal history purposes).
These considerations, suggesting significant differences between foreign and domestic
convictions, do not dictate our ultimate conclusion. Nor do they create a "clear statement"
rule, imposing upon Congress a special burden of specificity. See post, at 399 (THOMAS,
J., dissenting). They simply convince us that we should apply an ordinary assumption
about the reach of domestically oriented statutes here — an assumption that helps us
determine Congress' intent where Congress likely did not consider the matter and where
other indicia of intent are in approximate balance. Cf. ibid. We consequently assume a
congressional intent that the phrase *391 "convicted in any court" applies domestically, not
extraterritorially. But, at the same time, we stand ready to revise this assumption should
statutory language, context, history, or purpose show the contrary.
B
We have found no convincing indication to the contrary here. The statute's language does
not suggest any intent to reach beyond domestic convictions. Neither does it mention
foreign convictions nor is its subject matter special, say, immigration or terrorism, where
one could argue that foreign convictions would seem especially relevant. To the contrary, if
read to include foreign convictions, the statute's language creates anomalies.
For example, the statute creates an exception that allows gun possession despite a prior
conviction for an antitrust or business regulatory crime. 18 U.S.C. § 921(a)(20)(A). In doing
so, the exception speaks of "Federal or State" antitrust or regulatory offenses. Ibid. If the
phrase "convicted in any court" generally refers only to domestic convictions, this language
causes no problem. But if "convicted in any court" includes foreign convictions, the words
"Federal or State" prevent the exception from applying where a foreign antitrust or
regulatory conviction is at issue. An individual convicted of, say, a Canadian antitrust
offense could not lawfully possess a gun, Combines Investigation Act, 2 R. S. C. 1985, ch.
C-34, §§ 61(6), (9) (1985), but a similar individual convicted of, say, a New York antitrust
offense, could lawfully possess a gun.
For example, the statute specifies that predicate crimes include "a misdemeanor crime of
domestic violence." 18 U.S.C. § 922(g)(9). Again, the language specifies that these
predicate crimes include only crimes that are "misdemeanor[s] under Federal or State law."
§ 921(a)(33)(A). If "convicted in any court" refers only to domestic convictions, this
language creates no problem. If the phrase also refers to *392 foreign convictions, the
language creates an apparently senseless distinction between (covered) domestic
relations misdemeanors committed within the United States and (uncovered) domestic
relations misdemeanors committed abroad.
For example, the statute provides an enhanced penalty where unlawful gun possession
rests upon three predicate convictions for a "serious drug offense." § 924(e)(1) (2000 ed.,
Supp. II). Again the statute defines the relevant drug crimes through reference to specific
federal crimes and with the words "offense under State law." §§ 924(e)(2)(A)(i), (ii) (2000
ed.). If "convicted in any court" refers only to domestic convictions, this language creates
no problem. But if the phrase also refers to foreign convictions, the language creates an
apparently senseless distinction between drug offenses committed within the United States
(potentially producing enhanced punishments) and similar offenses committed abroad (not
producing enhanced punishments).
For example, the statute provides that offenses that are punishable by a term of
imprisonment of up to two years, and characterized under state law as misdemeanors, are
not predicate crimes. § 921(20). This exception is presumably based on the determination
that such state crimes are not sufficiently serious or dangerous so as to preclude an
individual from possessing a firearm. If "convicted in any court" refers only to domestic
convictions, this language creates no problem. But if the phrase also refers to foreign
convictions, the language creates another apparently senseless distinction between less
serious crimes (misdemeanors punishable by more than one year's imprisonment)
committed within the United States (not predicate crimes) and similar offenses committed
abroad (predicate crimes). These illustrative examples taken together suggest that
Congress did not consider whether the generic phrase "convicted in any court" applies to
domestic as well as foreign convictions.
*393 The statute's lengthy legislative history confirms the fact that Congress did not
consider whether foreign convictions should or should not serve as a predicate to liability
under the provision here at issue. Congress did consider a Senate bill containing language
that would have restricted predicate offenses to domestic offenses. See S. Rep. No. 1501,
90th Cong., 2d Sess., 31 (1968) (defining predicate crimes in terms of "Federal" crimes
"punishable by a term of imprisonment exceeding one year" and crimes "determined by the
laws of the State to be a felony"). And the Conference Committee ultimately rejected this
version in favor of language that speaks of those "convicted in any court of, a crime
punishable by a term of imprisonment exceeding one year," § 928(g)(1). See H.R. Conf.
Rep. No. 1956, 90th Cong., 2d Sess., 28-29 (1968). But the history does not suggest that
this language change reflected a congressional view on the matter before us. Rather, the
enacted version is simpler and it avoids potential difficulties arising out of the fact that
States may define the term "felony" differently. And as far as the legislative history is
concerned, these latter virtues of the new language fully explain the change. Thus, those
who use legislative history to help discern congressional intent will see the history here as
silent, hence a neutral factor, that simply confirms the obvious, namely, that Congress did
not consider the issue. Others will not be tempted to use or to discuss the history at all. But
cf. post, at 406 (THOMAS, J., dissenting).
The statute's purpose does offer some support for a reading of the phrase that includes
foreign convictions. As the Government points out, Congress sought to "`keep guns out of
the hands of those who have demonstrated that they may not be trusted to possess a
firearm without becoming a threat to society.'" Brief for United States 16
(quoting Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 112 (1983)); see
also Lewis v. United States, 445 U.S. 55, 60-62, 66 (1980); Huddleston v. United
States, 415 U.S. 814, 824 *394 (1974). And, as the dissent properly notes, post, at 402-
403, one convicted of a serious crime abroad may well be as dangerous as one convicted
of a similar crime in the United States.
The force of this argument is weakened significantly, however, by the empirical fact that,
according to the Government, since 1968, there have probably been no more than "10 to a
dozen" instances in which such a foreign conviction has served as a predicate for a felon-
in-possession prosecution. Tr. of Oral Arg. 32. This empirical fact reinforces the likelihood
that Congress, at best, paid no attention to the matter.
C
In sum, we have no reason to believe that Congress considered the added enforcement
advantages flowing from inclusion of foreign crimes, weighing them against, say, the
potential unfairness of preventing those with inapt foreign convictions from possessing
guns. See supra, at 389. The statute itself and its history offer only congressional silence.
Given the reasons for disfavoring an inference of extraterritorial coverage from a statute's
total silence and our initial assumption against such coverage, see supra, at 390-391, we
conclude that the phrase "convicted in any court" refers only to domestic courts, not to
foreign courts. Congress, of course, remains free to change this conclusion through
statutory amendment.
For these reasons, the judgment of the Third Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
THE CHIEF JUSTICE took no part in the decision of this case.
JUSTICE THOMAS, with whom JUSTICE SCALIA and JUSTICE KENNEDY join,
dissenting.
Gary Small, having recently emerged from three years in Japanese prison for illegally
importing weapons into that *395 country, bought a gun in the United States. This violated
18 U.S.C. § 922(g)(1), which makes it unlawful for any person "who has been convicted in
any court of, a crime punishable by imprisonment for a term exceeding one year" to
possess a firearm in or affecting commerce. Yet the majority decides that Small's gun
possession did not violate the statute, because his prior convictions occurred in a
Japanese court rather than an American court. In concluding that "any" means not what it
says, but rather "a subset of any," the Court distorts the plain meaning of the statute and
departs from established principles of statutory construction. I respectfully dissent.
I
In December 1992, Small shipped a 19-gallon electric water heater from the United States
to Okinawa, Japan, ostensibly as a present for someone in Okinawa. App. to Brief for
Appellant in No. 02-2785 (CA3), pp. 507a-510a, 530a-531a, 534a, 598a (hereinafter
Appellant's App.). Small had sent two other water heaters to Japan that same year. Id., at
523a-527a. Thinking it unusual for a person to ship a water tank from overseas as a
present, id., at 599a, Japanese customs officials searched the heater and discovered 2
rifles, 8 semiautomatic pistols, and 410 rounds of ammunition, id., at 603a-604a; id., at
262a, 267a, 277a.
The Japanese Government indicted Small on multiple counts of violating Japan's
weapons-control and customs laws. Id., at 261a-262a. Each offense was punishable by
imprisonment for a term exceeding one year. 333 F.3d 425, 426 (CA3 2003). Small was
tried before a three-judge court in Naha, Japan, Appellant's App. 554a, convicted on all
counts on April 14, 1994, 333 F.3d, at 426, and sentenced to 5 years' imprisonment with
credit for 320 days served, id.,at 426, n. 1; Government's Brief in Support of Detention in
Crim. No. 00-160 (WD Pa.), pp. 3-4. He was paroled on November 22, 1996, and his
parole terminated on May 26, 1998. 333 F.3d, at 426, n. 1.
*396 A week after completing parole for his Japanese convictions, on June 2, 1998, Small
purchased a 9-millimeter SWD Cobray pistol from a firearms dealer in Pennsylvania.
Appellant's App. 48a, 98a. Some time later, a search of his residence, business premises,
and automobile revealed a .380-caliber Browning pistol and more than 300 rounds of
ammunition. Id., at 47a-51a, 98a-99a. This prosecution ensued.
II
The plain terms of § 922(g)(1) prohibit Small — a person "convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year" —from possessing a firearm in
the United States. "Read naturally, the word `any' has an expansive meaning, that is, `one
or some indiscriminately of whatever kind.'" United States v. Gonzales, 520 U.S. 1, 5 (1997)
(quoting Webster's Third New International Dictionary 97 (1976) (hereinafter Webster's
3d)); see also Department of Housing and Urban Development v. Rucker, 535 U.S. 125,
130-131 (2002) (statute making "any" drug-related criminal activity cause for termination of
public housing lease precludes requirement that tenant know of the
activity); Brogan v. United States, 522 U.S. 398, 400-401 (1998) (statute criminalizing
"any" false statement within the jurisdiction of a federal agency allows no exception for the
mere denial of wrongdoing); United States v. Alvarez-Sanchez, 511 U.S. 350, 356, 358
(1994) (statute referring to "any" law enforcement officer includes all law enforcement
officers — federal, state, or local — capable of arresting for a federal crime). No exceptions
appear on the face of the statute; "[n]o modifier is present, and nothing suggests any
restriction," Lewisv. United States, 445 U.S. 55, 60 (1980), on the scope of the term
"court." See Gonzales, supra, at 5 (statute referring to "`any other term of imprisonment'"
includes no "language limiting the breadth of that word, and so we must read [the statute]
as referring to all `term[s] of *397 imprisonment'"). The broad phrase "any court"
unambiguously includes all judicial bodies[1] with jurisdiction to impose the requisite
conviction — a conviction for a crime punishable by imprisonment for a term of more than a
year. Indisputably, Small was convicted in a Japanese court of crimes punishable by a
prison term exceeding one year. The clear terms of the statute prohibit him from
possessing a gun in the United States.
Of course, the phrase "any court," like all other statutory language, must be read in
context. E.g., Deal v. United States, 508 U.S. 129, 132 (1993). The context of § 922(g)(1),
however, suggests that there is no geographic limit on the scope of "any court."[2] By
contrast to other parts of the firearms-control law that expressly mention only state or
federal law, "any court" is not qualified by jurisdiction. See 18 U.S.C. § 921(a)(20)
(excluding certain "Federal or State offenses" from the definition of "crime punishable by
imprisonment for a term exceeding one year"); § 921(a)(33)(A)(i) (defining a "misdemeanor
crime of domestic violence" by *398 reference to "Federal or State law").[3] Congress'
explicit use of "Federal" and "State" in other provisions shows that it specifies such
restrictions when it wants to do so.
Counting foreign convictions, moreover, implicates no special federalism concerns or other
clear statement rules that have justified construing "any" narrowly in the past.[4] And it is
eminently practical to put foreign convictions to the same use as domestic ones; foreign
convictions indicate dangerousness just as reliably as domestic convictions. See Part III-
B, infra. The expansive phrase "convicted in any court" straightforwardly encompasses
Small's Japanese convictions.
III
Faced with the inescapably broad text, the Court narrows the statute by assuming that the
text applies only to domestic convictions, ante, at 388-389; criticizing the accuracy of
foreign convictions as a proxy for dangerousness, ante, at 389-390; finding that the broad,
natural reading of the statute "creates anomalies," ante, at 391; and suggesting that
Congress did not consider whether foreign convictions counted, ante, at 393. None of
these arguments is persuasive.
*399 A
The Court first invents a canon of statutory interpretation — what it terms "an ordinary
assumption about the reach of domestically oriented statutes," ante, at 390 — to cabin the
statute's reach. This new "assumption" imposes a clear statement rule on Congress:
Absent a clear statement, a statute refers to nothing outside the United States. The Court's
denial that it has created a clear statement rule is implausible. Ibid. After today's ruling, the
only way for Congress to ensure that courts will construe a law to refer to foreign facts or
entities is to describe those facts or entities specifically as foreign. If this is not a "special
burden of specificity," ibid., I am not sure what is.
The Court's innovation is baseless. The Court derives its assumption from the entirely
different, and well-recognized, canon against extraterritorial application of federal statutes:
"It is a longstanding principle of American law that legislation of Congress, unless a
contrary intent appears, is meant to apply only within the territorial jurisdiction of the United
States." EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (internal quotation
marks omitted). But the majority rightly concedes that the canon against extraterritoriality
itself "does not apply directly to this case." Ante, at 389. Though foreign as well as
domestic convictions trigger § 922(g)(1)'s prohibition, the statute criminalizes gun
possession in this country, not abroad. In prosecuting Small, the Government is enforcing
a domestic criminal statute to punish domestic criminal conduct. Pasquantino v. United
States, ante, at 371-372 (federal wire fraud statute covers a domestic scheme aimed at
defrauding a foreign government of tax revenue).
The extraterritoriality cases cited by the Court, ante, at 389, do not support its new
assumption. They restrict federal statutes from applying outside the territorial jurisdiction of
the United States. See Smith v. United States, 507 U.S. 197, 203-204 (1993) (Federal Tort
Claims Act does not apply to claims arising in Antarctica); Arabian American *400 Oil Co.,
supra, at 249-251 (Title VII of the Civil Rights Act of 1964 does not regulate the
employment practices of American firms employing American citizens abroad); Foley Bros.,
Inc. v. Filardo, 336 U.S. 281, 285-286 (1949) (federal labor statute does not apply to a
contract between the United States and a private contractor for construction work done in
a foreign country); United States v. Palmer, 3 Wheat. 610, 630-634 (1818) (statute
punishing piracy on the high seas does not apply to robbery committed on the high seas
by a noncitizen on board a ship belonging exclusively to subjects of a foreign state). These
straightforward applications of the extraterritoriality canon, restricting federal statutes from
reaching conduct beyond U.S. borders, lend no support to the Court's unprecedented rule
restricting a federal statute from reaching conduct within U.S. borders.
We have, it is true, recognized that the presumption against extraterritorial application of
federal statutes is rooted in part in the "commonsense notion that Congress generally
legislates with domestic concerns in mind." Smith, supra, at 204, n. 5. But my reading of §
922(g)(1) is entirely true to that notion: Gun possession in this country is surely a
"domestic concern." We have also consistently grounded the canon in the risk that
extraterritorially applicable U.S. laws could conflict with foreign laws, for example, by
subjecting individuals to conflicting obligations. Arabian American Oil Co., supra, at 248.
That risk is completely absent in applying § 922(g)(1) to Small's conduct. Quite the
opposite, § 922(g)(1) takes foreign law as it finds it. Aside from the extraterritoriality canon,
which the Court properly concedes does not apply, I know of no principle of statutory
construction justifying the result the Court reaches. Its concession that the canon is
inapposite should therefore end this case.
Rather than stopping there, the Court introduces its new "assumption about the reach of
domestically oriented statutes" *401 sua sponte, without briefing or argument on the
point,[5] and without providing guidance on what constitutes a "domestically oriented
statut[e]." Ante, at 390. The majority suggests that it means all statutes except those
dealing with subjects like "immigration or terrorism," ante, at 391, apparently reversing our
previous rule that the extraterritoriality canon "has special force" in statutes "that may
involve foreign and military affairs," Sale v. Haitian Centers Council, Inc., 509 U.S. 155,
188 (1993) (provision of the Immigration and Nationality Act does not apply
extraterritorially); cf. Palmer, supra (statute criminalizing piracy on the high seas does not
apply to robbery by noncitizen on ship belonging to foreign subjects). The Court's creation
threatens to wreak havoc with the established rules for applying the canon against
extraterritoriality.[6]
B
In support of its narrow reading of the statute, the majority opines that the natural reading
has inappropriate results. It points to differences between foreign and domestic convictions,
primarily attacking the reliability of foreign convictions as a proxy for identifying dangerous
individuals. Ante, at 389-390. Citing various foreign laws, the Court observes that, if
interpreted to include foreign convictions, § 922(g) would include convictions for business
and speech activities "that [United States] laws would permit," ante, at 389; convictions
"from a legal system that is inconsistent with an American understanding of
fairness," ibid.; and convictions *402 "for conduct that [United States] law punishes far less
severely," ante, at 390. The Court therefore concludes that foreign convictions cannot
trigger § 922(g)(1)'s prohibition on firearm possession.
The Court's claim that foreign convictions punishable by imprisonment for more than a
year "somewhat less reliably identif[y] dangerous individuals" than domestic
convictions, ibid., is untenable. In compiling examples of foreign convictions that might
trigger § 922(g)(1), ante, at 389-390, the Court constructs a parade of horribles. Citing
laws of the Russian Soviet Federated Socialist Republic, Cuba, and Singapore, it cherry-
picks a few egregious examples of convictions unlikely to correlate with dangerousness,
inconsistent with American intuitions of fairness, or punishable more severely than in this
country. Ibid.This ignores countless other foreign convictions punishable by more than a
year that serve as excellent proxies for dangerousness and culpability.[7] Surely a
"reasonable human being" drafting this language would have considered whether foreign
convictions are, on average and as a whole, accurate at gauging dangerousness and
culpability, not whether the worst-of-the-worst are. Breyer, On the Uses of Legislative
History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 854 (1992). The Court also ignores
the facts of this very case: A week after *403 completing his sentence for shipping two
rifles, eight semiautomatic pistols, and hundreds of rounds of ammunition into Japan,
Small bought a gun in this country. It was eminently reasonable for Congress to use
convictions punishable by imprisonment for more than a year — foreign no less than
domestic —as a proxy for dangerousness.
Contrary to the majority's assertion, it makes sense to bar people convicted overseas from
possessing guns in the United States. The Court casually dismisses this point with the
observation that only "`10 to a dozen'" prosecutions under the statute have involved
foreign convictions as predicate convictions. Ante, at 394 (quoting Tr. of Oral Arg. 32). The
rarity of such prosecutions, however, only refutes the Court's simultaneous claim, ante, at
389-390, that a parade of horribles will result if foreign convictions count. Moreover, the
Court does not claim that any of these few prosecutions has been based on a foreign
conviction inconsistent with American law. As far as anyone is aware, the handful of
prosecutions thus far rested on foreign convictions perfectly consonant with American law,
like Small's conviction for international gunrunning. The Court has no answer for why
including foreign convictions is unwise, let alone irrational.
C
The majority worries that reading § 922(g)(1) to include foreign convictions "creates
anomalies" under other firearms-control provisions. Ante, at 391-392. It is true, as the
majority notes, that the natural reading of § 922(g)(1) affords domestic offenders more
lenient treatment than foreign ones in some respects: A domestic antitrust or business
regulatory offender could possess a gun, while a similar foreign offender could not; the
perpetrator of a state misdemeanor punishable by two years or less in prison could
possess a gun, while an analogous foreign offender could not. Ibid. In other respects,
domestic offenders would receive harsher treatment than their foreign counterparts: One
who *404 committed a misdemeanor crime of domestic violence in the United States could
not possess a gun, while a similar foreign offender could; and a domestic drug offender
could receive a 15-year mandatory minimum sentence for unlawful gun possession, while
a foreign drug offender could not. Ibid.
These outcomes cause the Court undue concern. They certainly present no occasion to
employ, nor does the Court invoke, the canon against absurdities. We should employ that
canon only "where the result of applying the plain language would be, in a genuine sense,
absurd, i.e., where it is quite impossible that Congress could have intended the result . . .
and where the alleged absurdity is so clear as to be obvious to most anyone." Public
Citizen v. Department of Justice, 491 U.S. 440, 470-471 (1989) (KENNEDY, J., concurring
in judgment); Nixon v. Missouri Municipal League, 541 U.S. 125, 141 (2004) (SCALIA, J.,
concurring in judgment) ("avoidance of unhappy consequences" is inadequate basis for
interpreting a text); cf. Sturges v. Crowninshield, 4 Wheat. 122, 203 (1819) (before
disregarding the plain meaning of a constitutional provision, the case "must be one in
which the absurdity and injustice of applying the provision to the case, would be so
monstrous, that all mankind would, without hesitation, unite in rejecting the application").
Here, the "anomalies" to which the Court points are not absurd. They are, at most, odd;
they may even be rational. For example, it is not senseless to bar a Canadian antitrust
offender from possessing a gun in this country, while exempting a domestic antitrust
offender from the ban. Congress might have decided to proceed incrementally and exempt
only antitrust offenses with which it was familiar, namely, domestic ones. In any event, the
majority abandons the statute's plain meaning based on results that are at most
incongruous and certainly not absurd. As with the extraterritoriality canon, the Court
applies a mutant version of a recognized canon when the recognized canon is itself
inapposite. *405 Whatever the utility of canons as guides to congressional intent, they are
useless when modified in ways that Congress could never have imagined in enacting §
922(g)(1).
Even assuming that my reading of the statute generates anomalies, the majority's reading
creates ones even more dangerous. As explained above, the majority's interpretation
permits those convicted overseas of murder, rape, assault, kidnaping, terrorism, and other
dangerous crimes to possess firearms freely in the United States. Supra, at 402-403, and
n. 7. Meanwhile, a person convicted domestically of tampering with a vehicle identification
number, 18 U.S.C. § 511(a)(1), is barred from possessing firearms. The majority's concern
with anomalies provides no principled basis for choosing its interpretation of the statute
over mine.
D may mean "some subset of `any,'" even if nothing in the context so indicates; it distorts the
The Court hypothesizes "that Congress did not consider whether the generic phrase
`convicted in any court' applies to domestic as well as foreign convictions," ante, at 392,
and takes that as license to restrict the clear breadth of the text. Whether the Court's
empirical assumption is correct is anyone's guess. Regardless, we have properly rejected
this method of guesswork-as-interpretation. In Beecham v. United States, 511 U.S.
368 (1994), we interpreted other provisions of the federal firearms laws to mean that a
person convicted of a federal crime is not relieved of the firearms disability unless his civil
rights have been restored under federal (as opposed to state) law. We acknowledged the
possibility "that the phrases on which our reading of the statute turns . . . were accidents of
statutory drafting," id., at 374; and we observed that some legislators might have read the
phrases differently from the Court's reading, "or, more likely, . . . never considered the
matter at all," ibid. We nonetheless adhered to the unambiguous meaning of the
statute. Ibid.; cf. National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 262
(1994) ("The fact that [the *406 Racketeer Influenced and Corrupt Organizations Act] has
been applied in situations not expressly anticipated by Congress does not demonstrate
ambiguity. It demonstrates breadth" (internal quotation marks and brackets omitted)). Here,
as in Beecham, "our task is not the hopeless one of ascertaining what the legislators who
passed the law would have decided had they reconvened to consider [this] particular
cas[e]," 511 U.S., at 374, but the eminently more manageable one of following the ordinary
meaning of the text they enacted. That meaning includes foreign convictions.
The Court's reliance on the absence of any discussion of foreign convictions in the
legislative history is equally unconvincing. Ante, at 393. Reliance on explicit statements in
the history, if they existed, would be problematic enough. Reliance on silence in the history
is a new and even more dangerous phenomenon. Koons Buick Pontiac GMC,
Inc. v. Nigh, 543 U.S. 50, 73 (2004) (SCALIA, J., dissenting) (criticizing the Court's novel
"Canon of Canine Silence").
I do not even agree, moreover, that the legislative history is silent. As the Court describes,
the Senate bill that formed the basis for this legislation was amended in Conference, to
change the predicate offenses from "`Federal' crimes" punishable by more than one year's
imprisonment and "crimes `determined by the laws of a State to be a felony'" to conviction
"`in any court of, a crime punishable by a term of imprisonment exceeding one
year.'" Ante, at 393. The Court seeks to explain this change by saying that "the enacted
version is simpler and . . . avoids potential difficulties arising out of the fact that States may
define the term `felony' differently." Ibid. But that does not explain why all limiting reference
to "Federal" and "State" was eliminated. The revised provision would have been just as
simple, and would just as well have avoided the potential difficulties, if it read "convicted in
any Federal or State court of a crime punishable by a term of imprisonment exceeding one
year." Surely that would have been the natural change if *407 expansion beyond federal
and state convictions were not intended. The elimination of the limiting references
suggests that not only federal and state convictions were meant to be covered.
Some, of course, do not believe that any statement or text that has not been approved by
both Houses of Congress and the President (if he signed the bill) is an appropriate source
of statutory interpretation. But for those who do, this committee change ought to be strong
confirmation of the fact that "any" means not "any Federal or State," but simply "any."
IV
The Court never convincingly explains its departure from the natural meaning of §
922(g)(1). Instead, it institutes the troubling rule that "any" does not really mean "any," but
established canons against extraterritoriality and absurdity; it faults without reason
Congress' use of foreign convictions to gauge dangerousness and culpability; and it
employs discredited methods of determining congressional intent. I respectfully dissent.

Syllabus
KIOBEL, individually and on behalf of her late husband KIOBEL, et al. v. ROYAL DUTCH
PETROLEUM CO. et al.
Petitioners, Nigerian nationals residing in the United States, filed suit in federal court under
the Alien Tort Statute, alleging that respondents—certain Dutch, British, and Nigerian
corporations—aided and abetted the Nigerian Government in committing violations of the
law of nations in Nigeria. The ATS provides that “[t]he district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States.” 28 U. S. C. §1350. The District Court dismissed
several of petitioners’ claims, but on interlocutory appeal, the Second Circuit dismissed the
entire complaint, reasoning that the law of nations does not recognize corporate liability.
This Court granted certiorari, and ordered supplemental briefing on whether and under
what circumstances courts may recognize a cause of action under the ATS, for violations
of the law of nations occurring within the territory of a sovereign other than the United
States.
Held: The presumption against extraterritoriality applies to claims under the ATS, and
nothing in the statute rebuts that presumption. Pp. 3–14.
(a) Passed as part of the Judiciary Act of 1789, the ATS is a jurisdictional statute that
creates no causes of action. It permits federal courts to “recognize private claims [for a
modest number of international law violations] under federal common
law.” Sosa v. Alvarez-Machain, 542 U. S. 692. In contending that a claim under the ATS
does not reach conduct occurring in a foreign sovereign’s territory, respondents rely on the
presumption against extraterritorial application, which provides that “[w]hen a statute gives
no clear indication of an extraterritorial application, it has none,” Morrison v. National
Australia Bank Ltd., 561 U. S. ___, ___. The presumption “serves to protect against
unintended clashes between our laws and those of other nations which could result in
international discord.” EEOC v. Arabian American Oil Co., 499 U. S. 244. It is typically
applied to discern whether an Act of Congress regulating conduct applies abroad, see, e.g.,
id., at 246, but its underlying principles similarly constrain courts when considering causes
of action that may be brought under the ATS. Indeed, the danger of unwarranted judicial
interference in the conduct of foreign policy is magnified in this context, where the question
is not what Congress has done but what courts may do. These foreign policy concerns are
not diminished by the fact that Sosa limited federal courts to recognizing causes of action
only for alleged violations of international law norms that are “ ‘specific, universal, and
obligatory,” 542 U. S., at 732. Pp. 3–6.
(b) The presumption is not rebutted by the text, history, or purposes of the ATS. Nothing in
the ATS’s text evinces a clear indication of extraterritorial reach. Violations of the law of
nations affectingaliens can occur either within or outside the United States. And generic
terms, like “any” in the phrase “any civil action,” do not rebut the presumption against
extraterritoriality. See, e.g., Morrison, supra, at ___. Petitioners also rely on the common-
law “transitory torts” doctrine, but that doctrine is inapposite here; as the Court has
explained, “the only justification for allowing a party to recover when the cause of action
arose in another civilized jurisdiction is a well-founded belief that it was a cause of action in
that place,” Cuba R. Co. v. Crosby, 222 U. S. 473. The question under Sosa is not
whether a federal court has jurisdiction to entertain a cause of action provided by foreign or
even international law. The question is instead whether the court has authority to
recognize a cause of action under U. S. law to enforce a norm of international law. That
question is not answered by the mere fact that the ATS mentions torts.
The historical background against which the ATS was enacted also does not overcome the
presumption. When the ATS was passed, “three principal offenses against the law of
nations” had been identified by Blackstone: violation of safe conducts, infringement of the
rights of ambassadors, and piracy. Sosa, supra, at 723, 724. Prominent contemporary
examples of the first two offenses—immediately before and after passage of the ATS—
provide no support for the proposition that Congress expected causes of action to be
brought under the statute for violations of the law of nations occurring abroad. And
although the offense of piracy normally occurs on the high seas, beyond the territorial
jurisdiction of the United States or any other country, applying U. S. law to pirates does not
typically impose the sovereign will of the United States onto conduct occurring within the
territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy
consequences. A 1795 opinion of Attorney General William Bradford regarding the conduct
of U. S. citizens on both the high seas and a foreign shore is at best ambiguous about the
ATS’s extraterritorial application; it does not suffice to counter the weighty concerns
underlying the presumption against extraterritoriality. Finally, there is no indication that the
ATS was passed to make the United States a uniquely hospitable forum for the
enforcement of international norms. Pp. 6–14.
621 F. 3d 111, affirmed.
Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy,
Thomas, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion. Alito, J., filed a
concurring opinion, in which Thomas, J., joined. Breyer, J., filed an opinion concurring in
the judgment, in which Ginsburg, Sotomayor, and Kagan, JJ., joined
ESTHER KIOBEL, individually and on behalf of her late husband, Dr. BARINEM
KIOBEL, et al., PETI- TIONERS v. ROYAL DUTCH PETROLEUM CO. et al.
on writ of certiorari to the united states court of appeals for the second circuit
[April 17, 2013]
Chief Justice Roberts delivered the opinion of the Court.
Petitioners, a group of Nigerian nationals residing in the United States, filed suit in
federal court against certain Dutch, British, and Nigerian corporations. Petitioners sued
under the Alien Tort Statute, 28 U. S. C. §1350, alleging that the corporations aided and
abetted the Nigerian Government in committing violations of the law of nations in Nigeria.
The question presented is whether and under what circumstances courts may recognize a
cause of action under the Alien Tort Statute, for violations of the law of nations occurring
within the territory of a sovereign other than the United States.
I (per curiam). The statute provides district courts with jurisdiction to hear certain claims, but
Petitioners were residents of Ogoniland, an area of 250 square miles located in the
Niger delta area of Nigeria and populated by roughly half a million people. When the
complaint was filed, respondents Royal Dutch Petroleum Company and Shell Transport
and Trading Company, p.l.c., were holding companies incorporated in the Netherlands and
England, respectively. Their joint subsidiary, respondent Shell Petroleum Development
Company of Nigeria, Ltd. (SPDC), was incorporated in Nigeria, and engaged in oil
exploration and production in Ogoniland. According to the complaint, after concerned
residents of Ogoniland began protesting the environmental effects of SPDC’s practices,
respondents enlisted the Nigerian Government to violently suppress the burgeoning
demonstrations. Throughout the early 1990’s, the complaint alleges, Nigerian military and
police forces attacked Ogoni vil- lages, beating, raping, killing, and arresting residents and
destroying or looting property. Petitioners further allege that respondents aided and
abetted these atrocities by, among other things, providing the Nigerian forces with food,
transportation, and compensation, as well as by al- lowing the Nigerian military to use
respondents’ property as a staging ground for attacks.
Following the alleged atrocities, petitioners moved to the United States where they have
been granted political asylum and now reside as legal residents. See Supp. Brief for
Petitioners 3, and n. 2. They filed suit in the United States District Court for the Southern
District of New York, alleging jurisdiction under the Alien Tort Statute and requesting relief
under customary international law. The ATS provides, in full, that “[t]he district courts shall
have original jurisdiction of any civil action by an alien for a tort only, committed in violation
of the law of nations or a treaty of the United States.” 28 U. S. C. §1350. According to
petitioners, respondents violated the law of nations by aiding and abetting the Nigerian
Government in committing (1) extrajudicial killings; (2) crimes against humanity; (3) torture
and cruel treatment; (4) arbitrary arrest and detention; (5) violations of the rights to life,
liberty, security, and association; (6) forced exile; and (7) property destruction. The District
Court dismissed the first, fifth, sixth, and seventh claims, reasoning that the facts alleged to
support those claims did not give rise to a violation of the law of nations. The court denied
respondents’ motion to dismiss with respect to the remaining claims, but certified its order
for interlocutory appeal pursuant to §1292(b).
The Second Circuit dismissed the entire complaint, rea- soning that the law of nations
does not recognize corpo- rate liability. 621 F. 3d 111 (2010). We granted certiorari to
consider that question. 565 U. S. ___ (2011). After oral argument, we directed the parties
to file supplemen- tal briefs addressing an additional question: “Whether and under what
circumstances the [ATS] allows courts to recognize a cause of action for violations of the
law of nations occurring within the territory of a sovereign other than the United States.”
565 U. S. ___ (2012). We heard oral argument again and now affirm the judgment below,
based on our answer to the second question.
II
Passed as part of the Judiciary Act of 1789, the ATS was invoked twice in the late 18th
century, but then only once more over the next 167 years. Act of Sept. 24, 1789, §9, 1 Stat
77; see Moxon v. The Fanny, 17 F. Cas. 942 (No. 9,895) (DC Pa. 1793); Bolchos v. Darrel,
3 F. Cas. 810 (No. 1,607) (DC SC 1795); O’Reilly de Camara v. Brooke, 209 U. S. 45
(1908) ; Khedivial Line, S.A.E. v. Seafarers’ Int’l Union, 278 F. 2d 49, 51–52 (CA2 1960)
does not expressly provide any causes of action. We held in Sosa v. Alvarez-Machain, 542
U. S. 692, 714 (2004) , however, that the First Congress did not intend the provision to be
“stillborn.” The grant of jurisdiction is instead “best read as having been enacted on the
understanding that the common law would provide a cause of action for [a] modest number
of international law violations.” Id., at 724. We thus held that federal courts may “recognize
private claims [for such violations] under federal common law.” Id., at 732. The Court in
Sosa rejected the plaintiff’s claim in that case for “arbitrary arrest and detention,” on the
ground that it failed to state a violation of the law of nations with the requisite “definite
content and acceptance among civilized nations.” Id., at 699, 732.
The question here is not whether petitioners have stated a proper claim under the ATS,
but whether a claim may reach conduct occurring in the territory of a foreign sovereign.
Respondents contend that claims under the ATS do not, relying primarily on a canon of
statutory interpretation known as the presumption against extraterritorial application. That
canon provides that “[w]hen a statute gives no clear indication of an extraterritorial
application, it has none,” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___
(2010) (slip op., at 6), and reflects the “presumption that United States law governs
domestically but does not rule the world,” Microsoft Corp. v. AT&T Corp., 550 U. S. 437,
454 (2007) .
This presumption “serves to protect against unintended clashes between our laws and
those of other nations which could result in international discord.” EEOC v. Arabian
American Oil Co., 499 U. S. 244, 248 (1991) (Aramco). As this Court has explained:
“For us to run interference in . . . a delicate field of international relations there must be
present the affirmative intention of the Congress clearly expressed. It alone has the
facilities necessary to make fairly such an important policy decision where the possibilities
of international discord are so evident and retaliative action so certain.” Benz v. Compania
Naviera Hidalgo, S. A., 353 U. S. 138, 147 (1957) . The presumption against extraterritorial
application helps ensure that the Judiciary does not erroneously adopt an interpretation of
U. S. law that carries foreign pol- icy consequences not clearly intended by the political
branches.
We typically apply the presumption to discern whether an Act of Congress regulating
conduct applies abroad. See, e.g., Aramco, supra, at 246 (“These cases present the issue
whether Title VII applies extraterritorially to regulate the employment practices of United
States employers who employ United States citizens abroad”); Morrison, supra, at ___
(slip op., at 4) (noting that the question of extraterritorial application was a “merits
question,” not a question of jurisdiction). The ATS, on the other hand, is “strictly
jurisdictional.” Sosa, 542 U. S., at 713. It does not directly regulate conduct or afford relief.
It instead allows federal courts to recognize certain causes of action based on sufficiently
definite norms of international law. But we think the principles underlying the canon of
interpretation similarly constrain courts considering causes of action that may be brought
under the ATS.
Indeed, the danger of unwarranted judicial interference in the conduct of foreign policy
is magnified in the context of the ATS, because the question is not what Congress has
done but instead what courts may do. This Court in Sosa repeatedly stressed the need for
judicial caution in considering which claims could be brought under the ATS, in light of
foreign policy concerns. As the Court explained, “the potential [foreign policy]
implications . . . of recog- nizing . . . . causes [under the ATS] should make courts
particularly wary of impinging on the discretion of the Legislative and Executive Branches
in managing foreign affairs.” Id., at 727; see also id., at 727–728 (“Since many attempts by
federal courts to craft remedies for the violation of new norms of international law would
raise risks of adverse foreign policy consequences, they should be undertaken, if at all,
with great caution”); id., at 727 (“[T]he possible collateral consequences of making
international rules privately actionable argue for judicial caution”). These concerns, which
are implicated in any case arising under the ATS, are all the more pressing when the
question is whether a cause of action under the ATS reaches conduct within the territory of
another sovereign.
These concerns are not diminished by the fact that Sosa limited federal courts to
recognizing causes of action only for alleged violations of international law norms that are
“ ‘specific, universal, and obligatory.’ ” Id., at 732 (quoting In re Estate of Marcos, Human
Rights Litigation, 25 F. 3d 1467, 1475 (CA9 1994)). As demonstrated by Congress’s
enactment of the Torture Victim Protection Act of 1991, 106Stat. 73, note following 28
U. S. C. §1350, identifying such a norm is only the beginning of defining a cause of action.
See id., §3 (providing detailed definitions for extrajudicial killing and torture); id., §2
(specifying who may be liable, creating a rule of exhaustion, and establishing a statute of
limitations). Each of these decisions carries with it significant foreign policy implications.
The principles underlying the presumption against ex- traterritoriality thus constrain
courts exercising their power under the ATS.
III
Petitioners contend that even if the presumption applies, the text, history, and purposes
of the ATS rebut it for causes of action brought under that statute. It is true that Congress,
even in a jurisdictional provision, can indicate that it intends federal law to apply to conduct
occurring abroad. See, e.g., 18 U. S. C. §1091(e) (2006 ed., Supp. V) (providing
jurisdiction over the offense of genocide “regardless of where the offense is committed” if
the alleged offender is, among other things, “present in the United States”). But to rebut
the presumption, the ATS would need to evince a “clear indication of extraterritoriality.”
Morrison, 561 U. S., at ___ (slip op., at 16). It does not.
To begin, nothing in the text of the statute suggests that Congress intended causes of
action recognized under it to have extraterritorial reach. The ATS covers actions by aliens
for violations of the law of nations, but that does not imply extraterritorial reach—such
violations affect- ing aliens can occur either within or outside the United States. Nor does
the fact that the text reaches “any civil action” suggest application to torts committed
abroad; it is well established that generic terms like “any” or “every” do not rebut the
presumption against extraterritoriality. See, e.g., id., at ___ (slip op., at 13–14); Small v.
United States, 544 U. S. 385, 388 (2005) ; Aramco, 499 U. S., at 248–250; Foley Bros., Inc.
v. Filardo, 336 U. S. 281, 287 (1949) .
Petitioners make much of the fact that the ATS provides jurisdiction over civil actions for
“torts” in violation of the law of nations. They claim that in using that word, the First
Congress “necessarily meant to provide for jurisdiction over extraterritorial transitory torts
that could arise on foreign soil.” Supp. Brief for Petitioners 18. For support, they cite the
common-law doctrine that allowed courts to assume jurisdiction over such “transitory torts,”
including actions for personal injury, arising abroad. See Mostyn v. Fabrigas, 1 Cowp. 161,
177, 98 Eng. Rep. 1021, 1030 (1774) (Mansfield, L.) (“[A]ll actions of a transitory nature
that arise abroad may be laid as happening in an English county”); Dennick v. Railroad Co.,
103 U. S. 11, 18 (1881) (“Wherever, by either the common law or the statute law of a State,
a right of action has become fixed and a legal liability incurred, that liability may be
enforced and the right of action pursued in any court which has jurisdiction of such matters
and can obtain jurisdiction of the parties”).
Under the transitory torts doctrine, however, “the only justification for allowing a party to
recover when the cause of action arose in another civilized jurisdiction is a well founded
belief that it was a cause of action in that place.” Cuba R. Co. v. Crosby, 222 U. S. 473,
479 (1912) (majority opinion of Holmes, J.). The question under Sosa is not whether a
federal court has jurisdiction to entertain a cause of action provided by foreign or even
international law. The question is instead whether the court has authority to recognize a
cause of action under U. S. law to enforce a norm of international law. The reference to
“tort” does not demonstrate that the First Congress “necessarily meant” for those causes of
action to reach conduct in the territory of a foreign sovereign. In the end, nothing in the text
of the ATS evinces the requisite clear indication of extraterritoriality.
Nor does the historical background against which the ATS was enacted overcome the
presumption against ap- plication to conduct in the territory of another sovereign. See
Morrison, supra, at ___ (slip op., at 16) (noting that “[a]ssuredly context can be consulted”
in determining whether a cause of action applies abroad). We explained in Sosa that when
Congress passed the ATS, “three principal offenses against the law of nations” had been
identified by Blackstone: violation of safe conducts, infringement of the rights of
ambassadors, and piracy. 542 U. S., at 723, 724; see 4 W. Blackstone, Commentaries on
the Laws of England 68 (1769). The first two offenses have no necessary extraterritorial
application. Indeed, Blackstone—in describing them—did so in terms of conduct occur-
ring within the forum nation. See ibid. (describing the right of safe conducts for those “who
are here”); 1 id., at 251 (1765) (explaining that safe conducts grant a member of one
society “a right to intrude into another”); id., at 245–248 (recognizing the king’s power to
“receiv[e] ambassadors at home” and detailing their rights in the state “wherein they are
appointed to reside”); see also E. De Vattel, Law of Nations 465 (J. Chitty et al. transl. and
ed. 1883) (“[O]n his entering the country to which he is sent, and making himself known,
[the ambassador] is under the protection of the law of nations . . .”).
Two notorious episodes involving violations of the law of nations occurred in the United
States shortly before passage of the ATS. Each concerned the rights of ambas- sadors,
and each involved conduct within the Union. In 1784, a French adventurer verbally and
physically assaulted Francis Barbe Marbois—the Secretary of the French Legion—in
Philadelphia. The assault led the French Minister Plenipotentiary to lodge a formal protest
with the Continental Congress and threaten to leave the country unless an adequate
remedy were provided. Respublica v. De Longschamps, 1 Dall. 111 (O. T. Phila. 1784);
Sosa, supra, at 716–717, and n. 11. And in 1787, a New York constable entered the Dutch
Ambassador’s house and arrested one of his domestic servants. See Casto, The Federal
Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18
Conn. L. Rev. 467, 494 (1986). At the request of Secretary of Foreign Affairs John Jay, the
Mayor of New York City arrested the constable in turn, but cautioned that because
“ ‘neither Congress nor our [State] Legislature have yet passed any act respecting a
breach of the privileges of Ambassadors,’ ” the extent of any available relief would depend
on the common law. See Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int’l L.
587, 641–642 (2002) (quoting 3 Dept. of State, The Diplomatic Correspondence of the
United States of America 447 (1837)). The two cases in which the ATS was invoked
shortly after its passage also concerned conduct within the territory of the United States.
See Bolchos, 3 F. Cas. 810 (wrongful seizure of slaves from a vessel while in port in the
United States); Moxon, 17 F. Cas. 942 (wrongful seizure in United States territorial waters).
These prominent contemporary examples—immediately before and after passage of
the ATS—provide no support for the proposition that Congress expected causes of action
to be brought under the statute for violations of the law of nations occurring abroad.
The third example of a violation of the law of nations familiar to the Congress that
enacted the ATS was piracy. Piracy typically occurs on the high seas, beyond the territorial
jurisdiction of the United States or any other country. See 4 Blackstone, supra, at 72 (“The
offence of piracy, by common law, consists of committing those acts of robbery and
depredation upon the high seas, which, if committed upon land, would have amounted to
felony there”). This Court has generally treated the high seas the same as foreign soil for
purposes of the presumption against extraterritorial application. See, e.g., Sale v. Haitian
Centers Council, Inc., 509 U. S. 155 –174 (1993) (declining to apply a provision of the
Immigration and Nationality Act to conduct occurring on the high seas); Argentine Republic
v. Amerada Hess Shipping Corp., 488 U. S. 428, 440 (1989) (declining to apply a provision
of the Foreign Sovereign Immunities Act of 1976 to the high seas). Petitioners contend that
because Congress surely intended the ATS to provide jurisdiction for actions against
pirates, it necessarily anticipated the statute would apply to conduct occurring abroad.
Applying U. S. law to pirates, however, does not typi- cally impose the sovereign will of
the United States onto conduct occurring within the territorial jurisdiction of another
sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair
game wherever found, by any nation, because they generally did not operate within any
jurisdiction. See 4 Blackstone, supra, at 71. We do not think that the existence of a cause
of action against them is a sufficient basis for concluding that other causes of action under
the ATS reach conduct that does occur within the territory of another sovereign; pirates
may well be a category unto themselves. See Morrison, 561 U. S., at ___ (slip op., at 16)
(“[W]hen a statute provides for some extraterritorial application, the presumption against
extraterritoriality operates to limit that provision to its terms”); see also Microsoft Corp., 550
U. S., at 455–456.
Petitioners also point to a 1795 opinion authored by Attorney General William Bradford.
See Breach of Neutrality, 1 Op. Atty. Gen. 57. In 1794, in the midst of war between France
and Great Britain, and notwithstanding the American official policy of neutrality, several
U. S. citizens joined a French privateer fleet and attacked and plundered the British colony
of Sierra Leone. In response to a protest from the British Ambassador, Attorney General
Bradford responded as follows:
So far . . . as the transactions complained of originated or took place in a foreign
country, they are not within the cognizance of our courts; nor can the actors be legally
prosecuted or punished for them by the United States. But crimes committed on the high
seas are within the jurisdiction of the . . . courts of the United States; and, so far as the
offence was committed thereon, I am inclined to think that it may be legally prosecuted
in . . . those courts . . . . But some doubt rests on this point, in consequence of the terms in
which the [applicable criminal law] is expressed. But there can be no doubt that the
company or individuals who have been injured by these acts of hostil- ity have a remedy
by a civil suit in the courts of the United States; jurisdiction being expressly given to these
courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or
a treaty of the United States . . . .” Id., at 58–59.
Petitioners read the last sentence as confirming that “the Founding generation
understood the ATS to apply to law of nations violations committed on the territory of a
foreign sovereign.” Supp. Brief for Petitioners 33. Respondents counter that when Attorney
General Bradford referred to “these acts of hostility,” he meant the acts only insofar as they
took place on the high seas, and even if his conclusion were broader, it was only because
the applicable treaty had extraterritorial reach. See Supp. Brief for Respondents 28–30.
The Solicitor General, having once read the opinion to stand for the proposition that an
“ATS suit could be brought against American citizens for breaching neutrality with Britain
only if acts did not take place in a foreign country,” Supp. Brief for United States as Amicus
Curiae 8, n. 1 (internal quotation marks and brackets omitted), now suggests the opinion
“could have been meant to encompass . . . conduct [occurring within the foreign territory],”
id., at 8.
Attorney General Bradford’s opinion defies a definitive reading and we need not adopt
one here. Whatever its pre- cise meaning, it deals with U. S. citizens who, by partic- ipating
in an attack taking place both on the high seas and on a foreign shore, violated a treaty
between the United States and Great Britain. The opinion hardly suffices to counter the
weighty concerns underlying the presumption against extraterritoriality.
Finally, there is no indication that the ATS was passed to make the United States a
uniquely hospitable forum for the enforcement of international norms. As Justice Story put
it, “No nation has ever yet pretended to be the custos morum of the whole world . . . .”
United States v. The La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (CC. Mass.
1822). It is implausible to suppose that the First Congress wanted their fledgling
Republic—struggling to receive international recognition—to be the first. Indeed, the
parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.
The United States was, however, embarrassed by its potential inability to provide
judicial relief to foreign officials injured in the United States. Bradley, 42 Va. J. Int’l L., at
641. Such offenses against ambassadors vio- lated the law of nations, “and if not
adequately redressed could rise to an issue of war.” Sosa, 542 U. S., at 715; cf. The
Federalist No. 80, p. 536 (J. Cooke ed. 1961) (A. Hamilton) (“As the denial or perversion of
justice . . . is with reason classed among the just causes of war, it will follow that the
federal judiciary ought to have cognizance of all causes in which the citizens of other
countries are concerned”). The ATS ensured that the United States could provide a forum
for adjudicating such incidents. See Sosa, supra, at 715–718, and n. 11. Nothing about
this historical context suggests that Congress also intended federal common law under the
ATS to provide a cause of action for conduct occurring in the territory of another sovereign.
Indeed, far from avoiding diplomatic strife, providing such a cause of action could have
generated it. Recent experience bears this out. See Doe v. Exxon Mobil Corp., 654 F. 3d
11, 77–78 (CADC 2011) (Kavanaugh, J., dissenting in part) (listing recent objections to
extraterritorial applications of the ATS by Canada, Germany, Indonesia, Papua New
Guinea, South Africa, Switzerland, and the United Kingdom). Moreover, accepting
petitioners’ view would imply that other nations, also applying the law of nations, could hale
our citizens into their courts for alleged violations of the law of nations occurring in the
United States, or anywhere else in the world. The presumption against extraterritoriality
guards against our courts triggering such serious foreign policy consequences, and
instead defers such decisions, quite appropriately, to the political branches.
We therefore conclude that the presumption against extraterritoriality applies to claims
under the ATS, and that nothing in the statute rebuts that presumption. “[T]here is no clear
indication of extraterritoriality here,” Morrison, 561 U. S., at ___ (slip op., at 16), and
petitioners’ case seeking relief for violations of the law of nations occurring outside the
United States is barred.
IV
On these facts, all the relevant conduct took place outside the United States. And even
where the claims touch and concern the territory of the United States, they must do so with
sufficient force to displace the presumption against extraterritorial application. See
Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many
countries, and it would reach too far to say that mere corporate presence suffices. If
Congress were to determine otherwise, a statute more specific than the ATS would be
required.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
United States Court of Appeals, Fourth Circuit.
UNITED STATES OF AMERICA, Plaintiff - Appellant, v. RICHARD ARTHUR SCHMIDT,
Defendant - Appellee.
No. 16-6567
Decided: January 04, 2017
Before WILKINSON, AGEE, and HARRIS, Circuit Judges. ARGUED: Sujit Raman,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellant. Mary
Elizabeth Davis, DAVIS & DAVIS, Washington, D.C., for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellant.
Richard Schmidt pleaded guilty to traveling in foreign commerce and engaging in illicit
sexual conduct in violation of 18 U.S.C. § 2423(c). Schmidt now argues that, as a matter of
law, he did not travel in foreign commerce in connection with his illicit sexual conduct and
is thus actually innocent of the offense. The district court agreed. We review the judgment
of the district court de novo, and for the reasons that follow, we reverse.
I.
In the words of the district court, Schmidt is a “sexual predator.” United States v. Schmidt,
Civ. No. JFM-13-3370, 2015 WL 5440732, at *1 (D. Md. Sept. 11, 2015). He has been
repeatedly convicted since 1984 for extensive and grotesque sex offenses involving young
boys.
In June 2002, Schmidt fled the United States to the Philippines to avoid arrest for allegedly
making unauthorized contact with a minor in violation of his parole. He obtained
employment there as a school instructor until he was arrested by Philippine authorities for
once again sexually molesting young boys. In December 2003, Schmidt fled to Cambodia
during a period of pre-trial release, roughly eighteen months after he first arrived in the
Philippines. His pattern of sex offenses nonetheless continued until he was arrested by
Cambodian authorities that same month. He was soon released on “police watch” only to
rape another young boy within two days. As a result, Schmidt was deported to the United
States to face numerous criminal charges, including a violation of § 2423(c) in Count 10 of
his indictment for illicit sexual conduct in Cambodia. Schmidt pleaded unconditionally guilty
to this charge and was sentenced to a prison term of fifteen years and a lifetime of
supervised release.1
Schmidt now petitions under 28 U.S.C. § 2255 to vacate his conviction, arguing that he is
actually innocent of violating § 2423(c) and that his counsel was ineffective for failing to
notice this defect at the time he entered his plea. Schmidt does not deny his illicit sexual
conduct. Instead, Schmidt contends that his travel in foreign commerce ended during his
stay in the Philippines, long before his illicit sexual conduct in Cambodia. He further claims
that any subsequent travel, such as his flight to Cambodia, was not independent travel in
foreign commerce for purposes of § 2423(c).
We are therefore presented with a straightforward question. When did Schmidt's travel in
foreign commerce end after he departed the United States? Because we conclude that
Schmidt was still traveling in foreign commerce from the time he departed the United
States until the time of his illicit sexual conduct in Cambodia, we conclude that he is not
actually innocent of the § 2423(c) offense.
II.
A.
Congress enacted § 2423(c) as part of the Prosecutorial Remedies and Other Tools to
End the Exploitation of Children Today (“PROTECT”) Act of 2003, Pub. L. No. 108-21, §
105(a), 117 Stat. 650, 654 (2003). At the time of Schmidt's offense, it read:
Engaging in Illicit Sexual Conduct in Foreign Places.—Any United States citizen or alien
admitted for permanent residence who travels in foreign commerce, and engages in any
illicit sexual conduct with another person shall be fined under this title or imprisoned not
more than 30 years, or both.
As the title implies, § 2423(c) was intended to criminalize “Engaging in Illicit Sexual
Conduct in Foreign Places.” It was aimed in part at the “ugly American,” whose sexual
exploits and visitation to sexual guesthouses abroad have helped to stimulate the sex
trade in young children even to the point of wrenching them at an early age from their own
homes.
The statute expanded upon 18 U.S.C. § 2423(b), which had been previously enacted to
criminalize “Travel With Intent To Engage in Illicit Sexual Conduct.” Congress recognized
the difficulty of proving that a defendant traveled “for the purpose of” engaging in illicit
sexual conduct, id., and passed § 2423(c) to “close loopholes that facilitated the abuse of
children abroad by sex tourists,” United States v. Bollinger, 798 F.3d 201, 219 (4th Cir.
2015). As the House Conference Report explained, “Current law [§ 2423(b)] requires the
government to prove that the defendant traveled with the intent to engage in the illegal
activity. Under this section [§ 2423(c)], the government would only have to prove that the
defendant engaged in illicit sexual conduct with a minor while in a foreign country.” H.R.
CONF. REP. NO. 108–66, at 51 (2003), reprinted in 2003 U.S.C.C.A.N. 683, 686.2
We construe the statute accordingly.
B.
Merriam-Webster's Collegiate Dictionary defines “travel” as “to go on or as if on a trip or
tour,” “to go from place to place,” and “to move or undergo transmission from one place to
another.” MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1331 (11th ed. 2003).
Neither party contends that prohibited sexual conduct must occur en route from one place
to another, and such a narrow construction of travel would surely defeat the intent of
Congress. See United States v. Clark, 435 F.3d 1100, 1107 (9th Cir. 2006) (“It [§ 2423(c)]
does not require that the conduct occur while traveling in foreign commerce.”). Rather,
travel denotes a broader concept of movement abroad. A person may still be traveling
even after a significant amount of time in a given location so long as the visit is sufficiently
transient or contemplates some future departure. See United States v. Jackson, 480 F.3d
1014, 1022 (9th Cir. 2007). Travel can thus continue until a party either returns to his or
her place of origin or permanently resettles elsewhere. As the Ninth Circuit has observed,
“[A]n understanding that travel ends only upon permanent resettlement in a foreign country
is supported by courts' regular use of a distinction between individuals who are physically
present without intending to stay in a locale and those who are present with an intent to
remain. People in the first category are usually considered mere visitors, while people in
the second category are considered residents or domiciliaries of the new location.” Id. at
1023-24. This construction “comports with colloquial usage.” Id. at 1023.
Next, 18 U.S.C. § 10 defines “foreign commerce,” in language that largely parallels the
Foreign Commerce Clause, to include “commerce with a foreign country.” We have
previously noted, focusing on the conjunctive “with,” that foreign commerce requires some
nexus with the United States. See Bollinger, 798 F.3d at 214. This makes sense: The
United States cannot go around prosecuting under the statute those with no real
connection to this country. See United States v. Pendleton, 658 F.3d 299, 307-08 (3d Cir.
2011) (“Courts have consistently held that the Foreign Commerce Clause requires a
jurisdictional nexus ‘with’ the United States, but there is precious little case law on how to
establish the requisite link ․ ” (citations omitted)); United States v. Weingarten, 632 F.3d 60,
70 (2d Cir. 2011) (“[I]t would be anomalous to construe the general definition of ‘foreign
commerce’ in § 10 ․ as including all forms of commerce occurring outside the United
States and without nexus whatsoever to this country.”). The statutory history of § 10
reinforces this requirement. See Weingarten, 632 F.3d at 67-70.
Travel in foreign commerce therefore encompasses movement abroad that maintains
some nexus with the United States. We consider all relevant facts and circumstances to
determine whether and to what extent a defendant traveled in foreign commerce.
III.
A.
Schmidt does not contest that he traveled in foreign commerce when he fled the United
States to the Philippines. Movement directly to or from the United States is unquestionably
an adequate nexus. Instead, Schmidt argues that his travel in foreign commerce ended
shortly thereafter. He points out that he obtained a work permit and full-time employment,
rented a home, and used a local driver's license in the Philippines. He further argues that
the eighteen months he spent there was sufficient to indicate that his travel had ended, or
at least to sever any nexus with the United States. As a result, Schmidt contends that he
was no longer traveling in foreign commerce when he fled to and engaged in illicit sexual
conduct in Cambodia.
We disagree. Schmidt overlooks a number of more significant factors. To begin, his status
remained transient from the time he left the United States until the time of his illicit sexual
conduct in Cambodia. He stayed in the Philippines on a series of two-month tourist visas
and worked using an “alien employment permit” for “non-resident foreign nationals” that he
apparently allowed to lapse before renewing. J.A. 223-24. Schmidt also maintained a
substantial amount of money in the United States, and never purchased a home or other
property abroad.
When Schmidt's unlawful sexual conduct attracted the attention of Philippine authorities,
he had no trouble making a quick pivot to Cambodia. Unlike when he fled the United
States leaving significant assets behind, Schmidt fled the Philippines leaving no trace
beyond the ruin caused by his sexual exploits. He then entered Cambodia on a one-month
tourist visa and frequented guesthouses known to attract sex tourists.
We specifically note that Schmidt continually traveled on a United States passport and
made no effort to obtain permanent status in another country. At all times, he was a visitor
in both the Philippines and Cambodia. The sum of these factors is more than sufficient to
establish for purposes of § 2423(c) that Schmidt was still traveling in foreign commerce
from the time he left the United States until the time of his illicit sexual conduct in
Cambodia. Contrary to his protestations of permanency, Schmidt was something of a
rolling stone.3
B.
Schmidt contends, however, that travel in foreign commerce necessarily ends sometime
during the first stop after departure and that the requisite nexus with the United States is
thereafter severed. But nothing in § 2423(c) indicates that illicit sexual conduct must take
place immediately or even shortly after leaving the United States, or that a single course of
travel is limited to a single destination. Common sense refutes any such notion. Schmidt's
theory would allow a simple layover to defeat the clear design of the statute. A defendant
might make a quick stop and then proceed elsewhere cloaked in an artificial immunity from
prosecution. See Weingarten, 632 F.3d at 71. Intermediate stops of longer duration are
likewise inapposite until a party returns to his or her place of origin or permanently
resettles. See id. (“[M]ere stops along the way do not deprive travel of its territorial nexus SYLLABUS
to the United States.”). OCTOBER TERM, 2007
BOUMEDIENE V. BUSH
Schmidt finally emphasizes that he had no intent to return to the United States and thus his
travel in foreign commerce necessarily concluded shortly after he arrived in the Philippines.
However, the element of travel and requisite nexus with the United States is an objective
SUPREME COURT OF THE UNITED STATES
inquiry that does not turn solely on self-serving and subjective allegations of intent. While
intent to permanently resettle may be one factor in determining when relevant travel in
foreign commerce comes to an end, it is not dispositive. In any event, the record here does BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.
not support Schmidt's claim.
certiorari to the united states court of appeals for the district of columbia circuit
United States v. Jackson is instructive by comparison. The Ninth Circuit there concluded
that the defendant's travel in foreign commerce ended after he moved to Cambodia,
purchased a home, and commenced the five-year residency requirement for Cambodian No. 06–1195. Argued December 5, 2007—Decided June 12, 2008*
citizenship. 480 F.3d at 1015-16, 1024. The defendant and his partner also sold their home
and remaining property in the United States, transferring all their assets to Cambodia. Id. In the Authorization for Use of Military Force (AUMF), Congress empowered the President
Schmidt's sojourns display none of these features.4 “to use all necessary and appropriate force against those … he determines planned,
authorized, committed, or aided the terrorist attacks … on September 11, 2001.”
IV. In Hamdi v. Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that
The judgment of the district court is accordingly reversed. We remand for reinstatement of detaining individuals captured while fighting against the United States in Afghanistan for
the judgment of conviction on Count 10, which charged defendant with the aforementioned the duration of that conflict was a fundamental and accepted incident to war. Thereafter,
§ 2423(c) offense. the Defense Department established Combatant Status Review Tribunals (CSRTs) to
determine whether individuals detained at the U. S. Naval Station at Guantanamo Bay,
REVERSED Cuba, were “enemy combatants.”

Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or

elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in
the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban
regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the
District Court, which ordered the cases dismissed for lack of jurisdiction because
Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court
reversed, holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to
Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473. Petitioners’ cases were then
consolidated into two proceedings. In the first, the district judge granted the Government’s
motion to dismiss, holding that the detainees had no rights that could be vindicated in a
habeas action. In the second, the judge held that the detainees had due process rights.

While appeals were pending, Congress passed the Detainee Treatment Act of 2005
(DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that “no court, justice, or
judge shall have jurisdiction to … consider … an application for … habeas corpus filed by
or on behalf of an alien detained … at Guantanamo,” and gave the D. C. Court of Appeals
“exclusive” jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U. S. 557,
576–577, the Court held this provision inapplicable to cases (like petitioners’) pending
when the DTA was enacted. Congress responded with the Military Commissions Act of
2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdiction with respect to
habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2)
denies jurisdiction as to “any other action against the United States … relating to any
aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a
detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e)
amendments “shall take effect on the date of the enactment of this Act, and shall apply to
all cases, without exception, pending on or after [that] date … which relate to any aspect of
the detention, transfer, treatment, trial, or conditions of detention of an alien detained …
since September 11, 2001.”
The D. C. Court of Appeals concluded that MCA §7 must be read to strip from it, and
all federal courts, jurisdiction to consider petitioners’ habeas applications; that petitioners
are not entitled to habeas or the protections of the Suspension Clause, U. S. Const., Art. I,
§9, cl. 2, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public Safety may require
it”; and that it was therefore unnecessary to consider whether the DTA provided an
adequate and effective substitute for habeas.
Held:
1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant
cases, that were pending at the time of its enactment. Section §7(b)’s effective date
provision undoubtedly applies to habeas actions, which, by definition, “relate to …
detention” within that section’s meaning. Petitioners argue to no avail that §7(b) does not
apply to a §2241(e)(1) habeas action, but only to “any other action” under §2241(e)(2),
because it largely repeats that section’s language. The phrase “other action” in §2241(e)(2)
cannot be understood without referring back to §2241(e)(1), which explicitly mentions the
“writ of habeas corpus.” Because the two paragraphs’ structure implies that habeas is a
type of action “relating to any aspect of … detention,” etc., pending habeas actions are in
the category of cases subject to the statute’s jurisdictional bar. This is confirmed by the
MCA’s legislative history. Thus, if MCA §7 is valid, petitioners’ cases must be dismissed.
Pp. 5–8.
2. Petitioners have the constitutional privilege of habeas corpus. They are not barred
from seeking the writ or invoking the Suspension Clause’s protections because they have
been designated as enemy combatants or because of their presence at Guantanamo.
Pp. 8–41.
(a) A brief account of the writ’s history and origins shows that protection for the habeas
privilege was one of the few safeguards of liberty specified in a Constitution that, at the
outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality
that must inform proper interpretation of the Suspension Clause. That the Framers
considered the writ a vital instrument for the protection of individual liberty is evident from
the care taken in the Suspension Clause to specify the limited grounds for its suspension:
The writ may be suspended only when public safety requires it in times of rebellion or
invasion. The Clause is designed to protect against cyclical abuses of the writ by the
Executive and Legislative Branches. It protects detainee rights by a means consistent with
the Constitution’s essential design, ensuring that, except during periods of formal
suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate
balance of governance.” Hamdi, supra, at 536. Separation-of-powers principles, and the
history that influenced their design, inform the Clause’s reach and purpose. Pp. 8–15.
(b) A diligent search of founding-era precedents and legal commentaries reveals no
certain conclusions. None of the cases the parties cite reveal whether a common-law court
would have granted, or refused to hear for lack of jurisdiction, a habeas petition by a
prisoner deemed an enemy combatant, under a standard like the Defense Department’s in
these cases, and when held in a territory, like Guantanamo, over which the Government
has total military and civil control. The evidence as to the writ’s geographic scope at
common law is informative, but, again, not dispositive. Petitioners argue that the site of
their detention is analogous to two territories outside England to which the common-law
writ ran, the exempt jurisdictions and India, but critical differences between these places
and Guantanamo render these claims unpersuasive. The Government argues that
Guantanamo is more closely analogous to Scotland and Hanover, where the writ did not
run, but it is unclear whether the common-law courts lacked the power to issue the writ
there, or whether they refrained from doing so for prudential reasons. The parties’
arguments that the very lack of a precedent on point supports their respective positions are
premised upon the doubtful assumptions that the historical record is complete and that the
common law, if properly understood, yields a definite answer to the questions before the
Court. Pp. 15–22.
(c) The Suspension Clause has full effect at Guantanamo. The Government’s
argument that the Clause affords petitioners no rights because the United States does not
claim sovereignty over the naval station is rejected. Pp. 22–42.
(i) The Court does not question the Government’s position that Cuba maintains
sovereignty, in the legal and technical sense, over Guantanamo, but it does not accept the
Government’s premise that de juresovereignty is the touchstone of habeas jurisdiction.
Common-law habeas’ history provides scant support for this proposition, and it is
inconsistent with the Court’s precedents and contrary to fundamental separation-of-powers
principles. Pp. 22–25.
(ii) Discussions of the Constitution’s extraterritorial application in cases involving
provisions other than the Suspension Clause undermine the Government’s argument.
Fundamental questions regarding the Constitution’s geographic scope first arose when the
Nation acquired Hawaii and the noncontiguous Territories ceded by Spain after the
Spanish-American War, and Congress discontinued its prior practice of extending
constitutional rights to territories by statute. In the so-called Insular Cases, the Court held
that the Constitution had independent force in the territories that was not contingent upon
acts of legislative grace. See, e.g., Dorr v. United States, 195 U. S. 138. Yet because of
the difficulties and disruption inherent in transforming the former Spanish colonies’ civil-law
system into an Anglo-American system, the Court adopted the doctrine of territorial
incorporation, under which the Constitution applies in full in incorporated Territories surely
destined for statehood but only in part in unincorporated Territories. See, e.g., id., at 143.
Practical considerations likewise influenced the Court’s analysis in Reid v. Covert, 354 U.
S. 1, where, in applying the jury provisions of the Fifth and Sixth Amendments to American
civilians being tried by the U. S. military abroad, both the plurality and the concurrences
noted the relevance of practical considerations, related not to the petitioners’ citizenship,
but to the place of their confinement and trial. Finally, in holdingthat habeas jurisdiction did
not extend to enemy aliens, convicted of violating the laws of war, who were detained in a
German prison during the Allied Powers’ post-World War II occupation, the Court,
in Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficulties of ordering the
production of the prisoners, id., at 779. The Government’s reading of Eisentrager as
adopting a formalistic test for determining the Suspension Clause’s reach is rejected
because: (1) the discussion of practical considerations in that case was integral to a part of
the Court’s opinion that came before it announced its holding, see id., at 781; (2) it
mentioned the concept of territorial sovereignty only twice in its opinion, in contrast to its
significant discussion of practical barriers to the running of the writ; and (3) if the
Government’s reading were correct, the opinion would have marked not only a change in,
but a complete repudiation of, the Insular Cases’ (and later Reid’s) functional approach. A
constricted reading of Eisentrager overlooks what the Court sees as a common thread
uniting all these cases: The idea that extraterritoriality questions turn on objective factors
and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling separation-of-powers
concerns, which are illustrated by Guantanamo’s political history. Although the United
States has maintained complete and uninterrupted control of Guantanamo for over 100
years, the Government’s view is that the Constitution has no effect there, at least as to
noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease
with Cuba. The Nation’s basic charter cannot be contracted away like this. The
Constitution grants Congress and the President the power to acquire, dispose of, and
govern territory, not the power to decide when and where its terms apply. To hold that the
political branches may switch the Constitution on or off at will would lead to a regime in
which they, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177.
These concerns have particular bearing upon the Suspension Clause question here, for
the habeas writ is itself an indispensable mechanism for monitoring the separation of
powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s reasoning in its other
extraterritoriality opinions, at least three factors are relevant in determining the Suspension
Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process
through which that status was determined; (2) the nature of the sites where apprehension
and then detention took place; and (3) the practical obstacles inherent in resolving the
prisoner’s entitlement to the writ. Application of this framework reveals, first, that
petitioners’ status is in dispute: They are not American citizens, but deny they are enemy
combatants; and although they have been afforded some process in CSRT proceedings,
there has been no Eisentrager–style trial by military commission for violations of the laws
of war. Second, while the sites of petitioners’ apprehension and detention weigh against
finding they have Suspension Clause rights, there are critical differences
between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in
2008, given the Government’s absolute and indefinite control over the naval station. Third,
although the Court is sensitive to the financial and administrative costs of holding the
Suspension Clause applicable in a case of military detention abroad, these factors are not
dispositive because the Government presents no credible arguments that the military
mission at Guantanamo would be compromised if habeas courts had jurisdiction. The
situation in Eisentrager was far different, given the historical context and nature of the
military’s mission in post-War Germany. Pp. 36–41.
(d) Petitioners are therefore entitled to the habeas privilege, and if that privilege is to be
denied them, Congress must act in accordance with the Suspension Clause’s
requirements. Cf. Rasul, 542 U. S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ status are not an adequate
and effective substitute for the habeas writ, MCA §7 operates as an unconstitutional
suspension of the writ. Pp. 42–64.
(a) Given its holding that the writ does not run to petitioners, the D. C. Circuit found it
unnecessary to consider whether there was an adequate substitute for habeas. This Court
usually remands for consideration of questions not decided below, but departure from this
rule is appropriate in “exceptional” circumstances, see, e.g., Cooper Industries,
Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the grave separation-of-powers
issues raised by these cases and the fact that petitioners have been denied meaningful
access to a judicial forum for years. Pp. 42–44.
(b) Historically, Congress has taken care to avoid suspensions of the writ. For example,
the statutes at issue in the Court’s two leading cases addressing habeas
substitutes, Swain v. Pressley, 430 U. S. 372, and United States v. Hayman, 342 U. S. 205,
were attempts to streamline habeas relief, not to cut it back. Those cases provide little
guidance here because, inter alia, the statutes in question gave the courts broad remedial
powers to secure the historic office of the writ, and included saving clauses to preserve
habeas review as an avenue of last resort. In contrast, Congress intended the DTA and
the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA
§7’s jurisdiction-stripping language, from the DTA’s text limiting the Court of Appeals’
jurisdiction to assessing whether the CSRT complied with the “standards and procedures
specified by the Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a
saving clause in either Act. That Congress intended to create a more limited procedure is
also confirmed by the legislative history and by a comparison of the DTA and the habeas
statute that would govern in MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress
authorized “any justice” or “circuit judge” to issue the writ, thereby accommodating the
necessity for factfinding that will arise in some cases by allowing the appellate judge or
Justice to transfer the case to a district court. See §2241(b). However, by granting the D. C.
Circuit “exclusive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A), Congress
has foreclosed that option in these cases. Pp. 44–49.
(c) This Court does not endeavor to offer a comprehensive summary of the requisites
for an adequate habeas substitute. It is uncontroversial, however, that the habeas privilege
entitles the prisoner to a meaningful opportunity to demonstrate that he is being held
pursuant to “the erroneous application or interpretation” of relevant law, INS v. St. Cyr, 533
U. S. 289, 302, and the habeas court must have the power to order the conditional release
of an individual unlawfully detained. But more may be required depending on the
circumstances. Petitioners identify what they see as myriad deficiencies in the CSRTs, the
most relevant being the constraints upon the detainee’s ability to rebut the factual basis for
the Government’s assertion that he is an enemy combatant. At the CSRT stage the
detainee has limited means to find or present evidence to challenge the Government’s
case, does not have the assistance of counsel, and may not be aware of the most critical
allegations that the Government relied upon to order his detention. His opportunity to
confront witnesses is likely to be more theoretical than real, given that there are no limits
on the admission of hearsay. The Court therefore agrees with petitioners that there is
considerable risk of error in the tribunal’s findings of fact. And given that the consequence
of error may be detention for the duration of hostilities that may last a generation or more,
the risk is too significant to ignore. Accordingly, for the habeas writ, or its substitute, to
function as an effective and meaningful remedy in this context, the court conducting the
collateral proceeding must have some ability to correct any errors, to assess the
sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory
evidence that was not introduced during the earlier proceeding. In re Yamashita, 327 U. S.
1, 5, 8, and Ex parte Quirin, 317 U. S. 1, 23–25, distinguished. Pp. 49–57.
(d) Petitioners have met their burden of establishing that the DTA review process is, on
its face, an inadequate substitute for habeas. Among the constitutional infirmities from
which the DTA potentially suffers are the absence of provisions allowing petitioners to
challenge the President’s authority under the AUMF to detain them indefinitely, to contest
the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence
discovered after the CSRT proceedings, and to request release. The statute cannot be
read to contain each of these constitutionally required procedures. MCA §7 thus effects an
unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court’s
entertaining petitioners’ claims. Pp. 57–64.
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
(a) Petitioners need not seek review of their CSRT determinations in the D. C. Circuit
before proceeding with their habeas actions in the District Court. If these cases involved
detainees held for only a short time while awaiting their CSRT determinations, or were it
probable that the Court of Appeals could complete a prompt review of their applications,
the case for requiring temporary abstention or exhaustion of alternative remedies would be
much stronger. But these qualifications no longer pertain here. In some instances six years
have elapsed without the judicial oversight that habeas corpus or an adequate substitute
demands. To require these detainees to pursue the limited structure of DTA review before
proceeding with habeas actions would be to require additional months, if not years, of
delay. This holding should not be read to imply that a habeas court should intervene the
moment an enemy combatant steps foot in a territory where the writ runs. Except in cases
of undue delay, such as the present, federal courts should refrain from entertaining an
enemy combatant’s habeas petition at least until after the CSRT has had a chance to
review his status. Pp. 64–67.
(b) In effectuating today’s holding, certain accommodations—including channeling
future cases to a single district court and requiring that court to use its discretion to
accommodate to the greatest extent possible the Government’s legitimate interest in
protecting sources and intelligence gathering methods—should be made to reduce the
burden habeas proceedings will place on the military, without impermissibly diluting the
writ’s protections. Pp. 67–68.
5. In considering both the procedural and substantive standards used to impose
detention to prevent acts of terrorism, the courts must accord proper deference to the
political branches. However, security subsists, too, in fidelity to freedom’s first principles,
chief among them being freedom from arbitrary and unlawful restraint and the personal
liberty that is secured by adherence to the separation of powers. Pp. 68–70.476 F. 3d 981,
reversed and remanded.
OPINION OF THE COURT
BOUMEDIENE V. BUSH
553 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NOS. 06-1195 AND 06-1196
LAKHDAR BOUMEDIENE, et al., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.
KHALED A. F. AL ODAH, next friend of FAWZI KHALID ABDULLAH FAHAD AL ODAH,
et al., PETITIONERS
06–1196 v.
UNITED STATES et al.
on writs of certiorari to the united states court of appeals for the district of columbia circuit
[June 12, 2008]
Justice Kennedy delivered the opinion of the Court.
Petitioners are aliens designated as enemy combatants and detained at the United
States Naval Station at Guantanamo Bay, Cuba. There are others detained there, also
aliens, who are not parties to this suit.
Petitioners present a question not resolved by our earlier cases relating to the detention
of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus,
a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I,
§9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has
enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that
provides certain procedures for review of the detainees’ status. We hold that those
procedures are not an adequate and effective substitute for habeas corpus. Therefore §7
of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007),
operates as an unconstitutional suspension of the writ. We do not address whether the
President has authority to detain these petitioners nor do we hold that the writ must issue.
These and other questions regarding the legality of the detention are to be resolved in the
first instance by the District Court.
I
Under the Authorization for Use of Military Force (AUMF), §2(a), 115 Stat. 224, note
following 50 U. S. C. §1541 (2000 ed., Supp. V), the President is authorized “to use all
necessary and appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons, in order to prevent any
future acts of international terrorism against the United States by such nations,
organizations or persons.”
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Members of the Court recognized that
detention of individuals who fought against the United States in Afghanistan “for the
duration of the particular conflict in which they were captured, is so fundamental and
accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’
Congress has authorized the President to use.” Id., at 518 (plurality opinion of O’Connor,
J.), id., at 588–589 (Thomas, J., dissenting). After Hamdi, the Deputy Secretary of Defense
established Combatant Status Review Tribunals (CSRTs) to determine whether individuals
detained at Guantanamo were “enemy combatants,” as the Department defines that term.
See App. to Pet. for Cert. in No. 06–1195, p. 81a. A later memorandum established
procedures to implement the CSRTs. See App. to Pet. for Cert. in No. 06–1196, p. 147.
The Government maintains these procedures were designed to comply with the due
process requirements identified by the plurality in Hamdi. See Brief for Respondents 10.
Interpreting the AUMF, the Department of Defense ordered the detention of these
petitioners, and they were transferred to Guantanamo. Some of these individuals were
apprehended on the battlefield in Afghanistan, others in places as far away from there as
Bosnia and Gambia. All are foreign nationals, but none is a citizen of a nation now at war
with the United States. Each denies he is a member of the al Qaeda terrorist network that
carried out the September 11 attacks or of the Taliban regime that provided sanctuary for
al Qaeda. Each petitioner appeared before a separate CSRT; was determined to be an
enemy combatant; and has sought a writ of habeas corpus in the United States District
Court for the District of Columbia.
The first actions commenced in February 2002. The District Court ordered the cases
dismissed for lack of jurisdiction because the naval station is outside the sovereign territory
of the United States. See Rasul v. Bush, 215 F. Supp. 2d 55 (2002). The Court of Appeals
for the District of Columbia Circuit affirmed. See Al Odah v. United States, 321 F. 3d 1134,
1145 (2003). We granted certiorari and reversed, holding that 28 U. S. C. §2241 extended
statutory habeas corpus jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466,
473 (2004). The constitutional issue presented in the instant cases was not reached
in Rasul. Id., at 476.
After Rasul, petitioners’ cases were consolidated and entertained in two separate
proceedings. In the first set of cases, Judge Richard J. Leon granted the Government’s
motion to dismiss, holding that the detainees had no rights that could be vindicated in a
habeas corpus action. In the second set of cases Judge Joyce Hens Green reached the
opposite conclusion, holding the detainees had rights under the Due Process Clause of the
Fifth Amendment. See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005); In re
Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 464 (DC 2005).
While appeals were pending from the District Court decisions, Congress passed the DTA.
Subsection (e) of §1005 of the DTA amended 28 U. S. C. §2241 to provide that “no court,
justice, or judge shall have jurisdiction to hear or consider … an application for a writ of
habeas corpus filed by or on behalf of an alien detained by the Department of Defense at
Guantanamo Bay, Cuba.” 119 Stat. 2742. Section 1005 further provides that the Court of
Appeals for the District of Columbia Circuit shall have “exclusive” jurisdiction to review
decisions of the CSRTs. Ibid.
In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577 (2006), the Court held this provision did
not apply to cases (like petitioners’) pending when the DTA was enacted. Congress
responded by passing the MCA, 10 U. S. C. A. §948a et seq. (Supp. 2007), which again
amended §2241. The text of the statutory amendment is discussed below. See Part
II, infra. (Four Members of the Hamdan majority noted that “[n]othing prevent[ed] the
President from returning to Congress to seek the authority he believes necessary.” 548 U.
S., at 636 (Breyer, J., concurring). The authority to which the concurring opinion referred
was the authority to “create military commissions of the kind at issue” in the case. Ibid.
Nothing in that opinion can be construed as an invitation for Congress to suspend the writ.)
Petitioners’ cases were consolidated on appeal, and the parties filed supplemental briefs
in light of our decision in Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981 (CADC
2007), is the subject of our present review and today’s decision.
The Court of Appeals concluded that MCA §7 must be read to strip from it, and all
federal courts, jurisdiction to consider petitioners’ habeas corpus applications, id., at 987;
that petitioners are not entitled to the privilege of the writ or the protections of the
Suspension Clause, id., at 990–991; and, as a result, that it was unnecessary to consider
whether Congress provided an adequate and effective substitute for habeas corpus in the
DTA.
We granted certiorari. 551 U. S. ___ (2007).
II
As a threshold matter, we must decide whether MCA §7 denies the federal courts
jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold
the statute does deny that jurisdiction, so that, if the statute is valid, petitioners’ cases must
be dismissed.
As amended by the terms of the MCA, 28 U. S. C. A. §2241(e) (Supp. 2007) now
provides:
“(1) No court, justice, or judge shall have jurisdiction to hear or consider an application
for a writ of habeas corpus filed by or on behalf of an alien detained by the United States
who has been determined by the United States to have been properly detained as an
enemy combatant or is awaiting such determination.
“(2) Except as provided in [§§1005(e)(2) and (e)(3) of the DTA] no court, justice, or judge
shall have jurisdiction to hear or consider any other action against the United States or its
agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of
confinement of an alien who is or was detained by the United States and has been
determined by the United States to have been properly detained as an enemy combatant
or is awaiting such determination.”
Section 7(b) of the MCA provides the effective date for the amendment of §2241(e). It
states:
“The amendment made by [MCA §7(a)] shall take effect on the date of the enactment of
this Act, and shall apply to all cases, without exception, pending on or after the date of the
enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial,
or conditions of detention of an alien detained by the United States since September 11,
2001.” 120 Stat. 2636.
 There is little doubt that the effective date provision applies to habeas corpus actions.
Those actions, by definition, are cases “which relate to … detention.” See Black’s Law
Dictionary 728 (8th ed. 2004) (defining habeas corpus as “[a] writ employed to bring a
person before a court, most frequently to ensure that the party’s imprisonment or detention
is not illegal”). Petitioners argue, nevertheless, that MCA §7(b) is not a sufficiently clear
statement of congressional intent to strip the federal courts of jurisdiction in pending cases.
See Ex parte Yerger, 8 Wall. 85, 102–103 (1869). We disagree.
Their argument is as follows: Section 2241(e)(1) refers to “a writ of habeas corpus.” The
next paragraph, §2241(e)(2), refers to “any other action … relating to any aspect of the
detention, transfer, treatment, trial, or conditions of confinement of an alien who … [has]
been properly detained as an enemy combatant or is awaiting such determination.” There
are two separate paragraphs, the argument continues, so there must be two distinct
classes of cases. And the effective date subsection, MCA §7(b), it is said, refers only to the
second class of cases, for it largely repeats the language of §2241(e)(2) by referring to
“cases … which relate to any aspect of the detention, transfer, treatment, trial, or
conditions of detention of an alien detained by the United States.”
Petitioners’ textual argument would have more force were it not for the phrase “other
action” in §2241(e)(2). The phrase cannot be understood without referring back to the
paragraph that precedes it, §2241(e)(1), which explicitly mentions the term “writ of habeas
corpus.” The structure of the two paragraphs implies that habeas actions are a type of
action “relating to any aspect of the detention, transfer, treatment, trial, or conditions of
confinement of an alien who is or was detained … as an enemy combatant.” Pending
habeas actions, then, are in the category of cases subject to the statute’s jurisdictional bar.
We acknowledge, moreover, the litigation history that prompted Congress to enact the
MCA. In Hamdanthe Court found it unnecessary to address the petitioner’s Suspension
Clause arguments but noted the relevance of the clear statement rule in deciding whether
Congress intended to reach pending habeas corpus cases. See 548 U. S., at 575
(Congress should “not be presumed to have effected such denial [of habeas relief] absent
an unmistakably clear statement to the contrary”). This interpretive rule facilitates a
dialogue between Congress and the Court. Cf. Hilton v. South Carolina Public Railways
Comm’n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks, The Legal Process: Basic
Problems in the Making and Application of Law 1209–1210 (W. Eskridge & P. Frickey eds.
1994). If the Court invokes a clear statement rule to advise that certain statutory
interpretations are favored in order to avoid constitutional difficulties, Congress can make
an informed legislative choice either to amend the statute or to retain its existing text. If
Congress amends, its intent must be respected even if a difficult constitutional question is
presented. The usual presumption is that Members of Congress, in accord with their oath
of office, considered the constitutional issue and determined the amended statute to be a
lawful one; and the Judiciary, in light of that determination, proceeds to its own
independent judgment on the constitutional question when required to do so in a proper
case.
If this ongoing dialogue between and among the branches of Government is to be
respected, we cannot ignore that the MCA was a direct response to Hamdan’s holding that
the DTA’s jurisdiction-stripping provision had no application to pending cases. The Court of
Appeals was correct to take note of the legislative history when construing the statute, see
476 F. 3d, at 986, n. 2 (citing relevant floor statements); and we agree with its conclusion
that the MCA deprives the federal courts of jurisdiction to entertain the habeas corpus
actions now before us.
III
In deciding the constitutional questions now presented we must determine whether
petitioners are barred from seeking the writ or invoking the protections of the Suspension
Clause either because of their status, i.e., petitioners’ designation by the Executive Branch
as enemy combatants, or their physical location, i.e., their presence at Guantanamo Bay.
The Government contends that noncitizens designated as enemy combatants and
detained in territory located outside our Nation’s borders have no constitutional rights and
no privilege of habeas corpus. Petitioners contend they do have cognizable constitutional
rights and that Congress, in seeking to eliminate recourse to habeas corpus as a means to
assert those rights, acted in violation of the Suspension Clause.
We begin with a brief account of the history and origins of the writ. Our account proceeds
from two propositions. First, protection for the privilege of habeas corpus was one of the
few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights.
In the system conceived by the Framers the writ had a centrality that must inform proper
interpretation of the Suspension Clause. Second, to the extent there were settled
precedents or legal commentaries in 1789 regarding the extraterritorial scope of the writ or
its application to enemy aliens, those authorities can be instructive for the present cases.
A
The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty,
and they understood the writ of habeas corpus as a vital instrument to secure that freedom.
Experience taught, however, that the common-law writ all too often had been insufficient to
guard against the abuse of monarchial power. That history counseled the necessity for
specific language in the Constitution to secure the writ and ensure its place in our legal
system.
Magna Carta decreed that no man would be imprisoned contrary to the law of the land.
Art. 39, in Sources of Our Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free man
shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way
destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his
peers or by the law of the land”). Important as the principle was, the Barons at Runnymede
prescribed no specific legal process to enforce it. Holdsworth tells us, however, that
gradually the writ of habeas corpus became the means by which the promise of Magna
Carta was fulfilled. 9 W. Holdsworth, A History of English Law 112 (1926) (hereinafter
Holdsworth).
The development was painstaking, even by the centuries-long measures of English
constitutional history. The writ was known and used in some form at least as early as the
reign of Edward I. Id., at 108–125. Yet at the outset it was used to protect not the rights of
citizens but those of the King and his courts. The early courts were considered agents of
the Crown, designed to assist the King in the exercise of his power. See J. Baker, An
Introduction to English Legal History 38–39 (4th ed. 2002). Thus the writ, while it would
become part of the foundation of liberty for the King’s subjects, was in its earliest use a
mechanism for securing compliance with the King’s laws. See Halliday & White, The
Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L.
Rev. (forthcoming 2008) (hereinafter Halliday & White) (manuscript, at 11, online at
http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=1008252 (all Internet materials as
visited June 9, 2008, and available in Clerk of Court’s case file) (noting that “conceptually
the writ arose from a theory of power rather than a theory of liberty”)). Over time it became
clear that by issuing the writ of habeas corpus common-law courts sought to enforce the
King’s prerogative to inquire into the authority of a jailer to hold a prisoner. See M. Hale,
Prerogatives of the King 229 (D. Yale ed. 1976); 2 J. Story, Commentaries on the
Constitution of the United States §1341, p. 237 (3d ed. 1858) (noting that the writ ran “into
all parts of the king’s dominions; for it is said, that the king is entitled, at all times, to have
an account, why the liberty of any of his subjects is restrained”).
Even so, from an early date it was understood that the King, too, was subject to the law.
As the writers said of Magna Carta, “it means this, that the king is and shall be below the
law.” 1 F. Pollock & F. Maitland, History of English Law 173 (2d ed. 1909); see also 2
Bracton On the Laws and Customs of England 33 (S. Thorne transl. 1968) (“The king must
not be under man but under God and under the law, because law makes the king”). And,
by the 1600’s, the writ was deemed less an instrument of the King’s power and more a
restraint upon it. See Collings, Habeas Corpus for Convicts—Constitutional Right or
Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting that by this point the writ was
“the appropriate process for checking illegal imprisonment by public officials”).
Still, the writ proved to be an imperfect check. Even when the importance of the writ was
well understood in England, habeas relief often was denied by the courts or suspended by
Parliament. Denial or suspension occurred in times of political unrest, to the anguish of the
imprisoned and the outrage of those in sympathy with them.
A notable example from this period was Darnel’s Case, 3 How. St. Tr. 1 (K. B. 1627).
The events giving rise to the case began when, in a display of the Stuart penchant for
authoritarian excess, Charles I demanded that Darnel and at least four others lend him
money. Upon their refusal, they were imprisoned. The prisoners sought a writ of habeas
corpus; and the King filed a return in the form of a warrant signed by the Attorney
General. Ibid. The court held this was a sufficient answer and justified the subjects’
continued imprisonment. Id., at 59.
There was an immediate outcry of protest. The House of Commons promptly passed the
Petition of Right, 3 Car. 1, ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963),
which condemned executive “imprison[ment] without any cause” shown, and declared that
“no freeman in any such manner as is before mencioned [shall] be imprisoned or
deteined.” Yet a full legislative response was long delayed. The King soon began to abuse
his authority again, and Parliament was dissolved. See W. Hall & R. Albion, A History of
England and the British Empire 328 (3d ed. 1953) (hereinafter Hall & Albion). When
Parliament reconvened in 1640, it sought to secure access to the writ by statute. The Act
of 1640, 16 Car. 1, ch. 10, 5 Statutes of the Realm, at 110, expressly authorized use of the
writ to test the legality of commitment by command or warrant of the King or the Privy
Council. Civil strife and the Interregnum soon followed, and not until 1679 did Parliament
try once more to secure the writ, this time through the Habeas Corpus Act of 1679, 31 Car.
2, ch. 2, id., at 935. The Act, which later would be described by Blackstone as the “stable
bulwark of our liberties,” 1 W. Blackstone, Commentaries *137 (hereinafter Blackstone),
established procedures for issuing the writ; and it was the model upon which the habeas
statutes of the 13 American Colonies were based, see Collings, supra, at 338–339.
This history was known to the Framers. It no doubt confirmed their view that pendular
swings to and away from individual liberty were endemic to undivided, uncontrolled power.
The Framers’ inherent distrust of governmental power was the driving force behind the
constitutional plan that allocated powers among three independent branches. This design
serves not only to make Government accountable but also to secure individual liberty.
See Loving v. United States, 517 U. S. 748, 756 (1996) (noting that “[e]ven before the birth
of this country, separation of powers was known to be a defense against tyranny”);
cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J.,
concurring) (“[T]he Constitution diffuses power the better to secure liberty”); Clinton v. City
of New York, 524 U. S. 417, 450 (1998) (Kennedy, J., concurring) (“Liberty is always at
stake when one or more of the branches seek to transgress the separation of powers”).
Because the Constitution’s separation-of-powers structure, like the substantive guarantees
of the Fifth and Fourteenth Amendments, see Yick Wo v. Hopkins, 118 U. S. 356, 374
(1886), protects persons as well as citizens, foreign nationals who have the privilege of
litigating in our courts can seek to enforce separation-of-powers principles,
see, e.g., INS v. Chadha, 462 U. S. 919, 958–959 (1983).
That the Framers considered the writ a vital instrument for the protection of individual
liberty is evident from the care taken to specify the limited grounds for its suspension: “The
Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2; see Amar, Of
Sovereignty and Federalism, 96 Yale L. J. 1425, 1509, n. 329 (1987) (“[T]he non-
suspension clause is the original Constitution’s most explicit reference to remedies”). The
word “privilege” was used, perhaps, to avoid mentioning some rights to the exclusion of
others. (Indeed, the only mention of the term “right” in the Constitution, as ratified, is in its
clause giving Congress the power to protect the rights of authors and inventors. See Art. I,
§8, cl. 8.)
Surviving accounts of the ratification debates provide additional evidence that the
Framers deemed the writ to be an essential mechanism in the separation-of-powers
scheme. In a critical exchange with Patrick Henry at the Virginia ratifying convention
Edmund Randolph referred to the Suspension Clause as an “exception” to the “power
given to Congress to regulate courts.” See 3 Debates in the Several State Conventions on
the Adoption of the Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (hereinafter Elliot’s
Debates). A resolution passed by the New York ratifying convention made clear its
understanding that the Clause not only protects against arbitrary suspensions of the writ
but also guarantees an affirmative right to judicial inquiry into the causes of detention. See
Resolution of the New York Ratifying Convention (July 26, 1788), in 1 Elliot’s Debates 328
(noting the convention’s understanding “[t]hat every person restrained of his liberty is
entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if
unlawful; and that such inquiry or removal ought not to be denied or delayed, except when,
on account of public danger, the Congress shall suspend the privilege of the writ of habeas
corpus”). Alexander Hamilton likewise explained that by providing the detainee a judicial
forum to challenge detention, the writ preserves limited government. As he explained in
The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most
formidable instruments of tyranny. The observations of the judicious Blackstone … are well
worthy of recital: ‘To bereave a man of life … or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act of despotism as must at
once convey the alarm of tyranny throughout the whole nation; but confinement of the
person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a
less public, a less striking, and therefore a more dangerous engine of arbitrary
government.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in
his encomiums on the habeas corpus act, which in one place he calls ‘the bulwark of the
British Constitution.’ ” C. Rossiter ed., p. 512 (1961) (quoting 1 Blackstone *136, 4 id., at
*438).
Post-1789 habeas developments in England, though not bearing upon the Framers’
intent, do verify their foresight. Those later events would underscore the need for structural
barriers against arbitrary suspensions of the writ. Just as the writ had been vulnerable to
executive and parliamentary encroachment on both sides of the Atlantic before the
American Revolution, despite the Habeas Corpus Act of 1679, the writ was suspended
with frequency in England during times of political unrest after 1789. Parliament
suspended the writ for much of the period from 1792 to 1801, resulting in rampant arbitrary
imprisonment. See Hall & Albion 550. Even as late as World War I, at least one prominent
English jurist complained that the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch.
29(1)(a), effectively had suspended the privilege of habeas corpus for any person
suspected of “communicating with the enemy.” See King v. Halliday, [1917] A. C. 260, 299
(Lord Shaw, dissenting); see generally A. Simpson, In the Highest Degree Odious:
Detention Without Trial in Wartime Britain 6–7, 24–25 (1992).
In our own system the Suspension Clause is designed to protect against these cyclical
abuses. The Clause protects the rights of the detained by a means consistent with the
essential design of the Constitution. It ensures that, except during periods of formal
suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate
balance of governance” that is itself the surest safeguard of liberty. See Hamdi, 542 U. S.,
at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the
duty and authority of the Judiciary to call the jailer to account.
See Preiser v. Rodriguez, 411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus is
an attack by a person in custody upon the legality of that custody”); cf. In re Jackson, 15
Mich. 417, 439–440 (1867) (Cooley, J., concurring) (“The important fact to be observed in
regard to the mode of procedure upon this [habeas] writ is, that it is directed to, and served
upon, not the person confined, but his jailer”). The separation-of-powers doctrine, and the
history that influenced its design, therefore must inform the reach and purpose of the
Suspension Clause.
B enemy, a wartime practice well known to the Framers. See Resolution of Mar. 30, 1778, 10
The broad historical narrative of the writ and its function is central to our analysis, but we
seek guidance as well from founding-era authorities addressing the specific question
before us: whether foreign nationals, apprehended and detained in distant countries during
a time of serious threats to our Nation’s security, may assert the privilege of the writ and
seek its protection. The Court has been careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along with post-1789 developments
that define the present scope of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301
(2001). But the analysis may begin with precedents as of 1789, for the Court has said that
“at the absolute minimum” the Clause protects the writ as it existed when the Constitution
was drafted and ratified. Id., at 301.
To support their arguments, the parties in these cases have examined historical sources
to construct a view of the common-law writ as it existed in 1789—as have amici whose
expertise in legal history the Court has relied upon in the past. See Brief for Legal
Historians as Amici Curiae; see also St. Cyr, supra, at 302, n. 16. The Government argues
the common-law writ ran only to those territories over which the Crown was sovereign. See
Brief for Respondents 27. Petitioners argue that jurisdiction followed the King’s officers.
See Brief for Petitioner Boumediene et al. 11. Diligent search by all parties reveals no
certain conclusions. In none of the cases cited do we find that a common-law court would
or would not have granted, or refused to hear for lack of jurisdiction, a petition for a writ of
habeas corpus brought by a prisoner deemed an enemy combatant, under a standard like
the one the Department of Defense has used in these cases, and when held in a territory,
like Guantanamo, over which the Government has total military and civil control.
We know that at common law a petitioner’s status as an alien was not a categorical bar
to habeas corpus relief. See, e.g., Sommersett’s Case, 20 How. St. Tr. 1, 80–82 (1772)
(ordering an African slave freed upon finding the custodian’s return insufficient); see
generally Khera v. Secretary of State for the Home Dept., [1984] A. C. 74, 111 (“Habeas
corpus protection is often expressed as limited to ‘British subjects.’ Is it really limited to
British nationals? Suffice it to say that the case law has given an emphatic ‘no’ to the
question”). We know as well that common-law courts entertained habeas petitions brought
by enemy aliens detained in England—“entertained” at least in the sense that the courts
held hearings to determine the threshold question of entitlement to the writ. See Case of
Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775 (C. P. 1779); Kingv. Schiever,
2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep. 816
(K. B. 1697).
In Schiever and the Spanish Sailors’ case, the courts denied relief to the petitioners.
Whether the holdings in these cases were jurisdictional or based upon the courts’ ruling
that the petitioners were detained lawfully as prisoners of war is unclear. See Spanish
Sailors, supra, at 1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97 Eng. Rep., at
552. In Du Castro’s Case, the court granted relief, but that case is not analogous to
petitioners’ because the prisoner there appears to have been detained in England. See
Halliday & White 27, n. 72. To the extent these authorities suggest the common-law courts
abstained altogether from matters involving prisoners of war, there was greater justification
for doing so in the context of declared wars with other nation states. Judicial intervention
might have complicated the military’s ability to negotiate exchange of prisoners with the
Journals of the Continental Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing
General Washington not to exchange prisoners with the British unless the enemy agreed
to exempt citizens from capture).
 We find the evidence as to the geographic scope of the writ at common law informative,
but, again, not dispositive. Petitioners argue the site of their detention is analogous to two
territories outside of England to which the writ did run: the so-called “exempt jurisdictions,”
like the Channel Islands; and (in former times) India. There are critical differences between
these places and Guantanamo, however.
As the Court noted in Rasul, 542 U. S., at 481–482, and nn. 11–12, common-law courts
granted habeas corpus relief to prisoners detained in the exempt jurisdictions. But these
areas, while not in theory part of the realm of England, were nonetheless under the
Crown’s control. See 2 H. Hallam, Constitutional History of England: From the Accession
of Henry VII to the Death of George II, pp. 232–233 (reprint 1989). And there is some
indication that these jurisdictions were considered sovereign territory. King v. Cowle, 2
Burr. 834, 854, 855, 97 Eng. Rep. 587, 599 (K. B. 1759) (describing one of the exempt
jurisdictions, Berwick-upon-Tweed, as under the “sovereign jurisdiction” and “subjection of
the Crown of England”). Because the United States does not maintain formal sovereignty
over Guantanamo Bay, see Part IV, infra, the naval station there and the exempt
jurisdictions discussed in the English authorities are not similarly situated.
Petitioners and their amici further rely on cases in which British courts in India granted
writs of habeas corpus to noncitizens detained in territory over which the Moghul Emperor
retained formal sovereignty and control. See supra, at 12–13; Brief for Legal Historians
as Amici Curiae 12–13. The analogy to the present cases breaks down, however, because
of the geographic location of the courts in the Indian example. The Supreme Court of
Judicature (the British Court) sat in Calcutta; but no federal court sits at Guantanamo. The
Supreme Court of Judicature was, moreover, a special court set up by Parliament to
monitor certain conduct during the British Raj. See Regulating Act of 1773, 13 Geo. 3,
§§13–14. That it had the power to issue the writ in nonsovereign territory does not prove
that common-law courts sitting in England had the same power. If petitioners were to have
the better of the argument on this point, we would need some demonstration of a
consistent practice of common-law courts sitting in England and entertaining petitions
brought by alien prisoners detained abroad. We find little support for this conclusion.
The Government argues, in turn, that Guantanamo is more closely analogous to
Scotland and Hanover, territories that were not part of England but nonetheless controlled
by the English monarch (in his separate capacities as King of Scotland and Elector of
Hanover). See Cowle, 2 Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be cited
for the proposition that, at the time of the founding, English courts lacked the “power” to
issue the writ to Scotland and Hanover, territories Lord Mansfield referred to as
“foreign.” Ibid. But what matters for our purposes is why common-law courts lacked this
power. Given the English Crown’s delicate and complicated relationships with Scotland
and Hanover in the 1700’s, we cannot disregard the possibility that the common-law
courts’ refusal to issue the writ to these places was motivated not by formal legal
constructs but by what we would think of as prudential concerns. This appears to have
been the case with regard to other British territories where the writ did not run. See 2 R.
Chambers, A Course of Lectures on English Law 1767–1773, p. 8 (T. Curley ed. 1986)
(quoting the view of Lord Mansfield in Cowle that “[n]otwithstanding the power which the
judges have, yet where they cannot judge of the cause, or give relief upon it, they would
not think proper to interpose; and therefore in the case of imprisonments
in Guernsey, Jersey, Minorca, or the plantations, the most usual way is to complain to
the king in Council” (internal quotation marks omitted)). And after the Act of Union in 1707,
through which the kingdoms of England and Scotland were merged politically, Queen
Anne and her successors, in their new capacity as sovereign of Great Britain, ruled the
entire island as one kingdom. Accordingly, by the time Lord Mansfield penned his opinion
in Cowle in 1759, Scotland was no longer a “foreign” country vis-À-vis England—at least
not in the sense in which Cuba is a foreign country vis-À-vis the United States.
Scotland remained “foreign” in Lord Mansfield’s day in at least one important respect,
however. Even after the Act of Union, Scotland (like Hanover) continued to maintain its
own laws and court system. See 1 Blackstone *98, *109. Under these circumstances
prudential considerations would have weighed heavily when courts sitting in England
received habeas petitions from Scotland or the Electorate. Common-law decisions
withholding the writ from prisoners detained in these places easily could be explained as
efforts to avoid either or both of two embarrassments: conflict with the judgments of
another court of competent jurisdiction; or the practical inability, by reason of distance, of
the English courts to enforce their judgments outside their territorial jurisdiction.
Cf. Munaf v. Geren, ante, at 15 (opinion of the Court) (recognizing that “ ‘prudential
concerns’ … such as comity and the orderly administration of criminal justice” affect the
appropriate exercise of habeas jurisdiction).
By the mid-19th century, British courts could issue the writ to Canada, notwithstanding
the fact that Canadian courts also had the power to do so. See 9 Holdsworth 124 (citing Ex
parte Anderson, 3 El. and El. 487 (1861)). This might be seen as evidence that the
existence of a separate court system was no barrier to the running of the common-law writ.
The Canada of the 1800’s, however, was in many respects more analogous to the exempt
jurisdictions or to Ireland, where the writ ran, than to Scotland or Hanover in the 1700’s,
where it did not. Unlike Scotland and Hanover, Canada followed English law. See B.
Laskin, The British Tradition in Canadian Law 50–51 (1969).
In the end a categorical or formal conception of sovereignty does not provide a
comprehensive or altogether satisfactory explanation for the general understanding that
prevailed when Lord Mansfield considered issuance of the writ outside England. In 1759
the writ did not run to Scotland but did run to Ireland, even though, at that point, Scotland
and England had merged under the rule of a single sovereign, whereas the Crowns of
Great Britain and Ireland remained separate (at least in theory). See Cowle, supra, at 856–
857, 97 Eng. Rep., 600; 1 Blackstone *100–101. But there was at least one major
difference between Scotland’s and Ireland’s relationship with England during this period
that might explain why the writ ran to Ireland but not to Scotland. English law did not
generally apply in Scotland (even after the Act of Union) but it did apply in Ireland.
Blackstone put it as follows: “[A]s Scotland and England are now one and the same
kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other
hand, distinct kingdoms, and yet in general agree in their laws.” Id., at *100. This
distinction, and not formal notions of sovereignty, may well explain why the writ did not run
to Scotland (and Hanover) but would run to Ireland.
The prudential barriers that may have prevented the English courts from issuing the writ
to Scotland and Hanover are not relevant here. We have no reason to believe an order
from a federal court would be disobeyed at Guantanamo. No Cuban court has jurisdiction
to hear these petitioners’ claims, and no law other than the laws of the United States
applies at the naval station. The modern-day relations between the United States and
Guantanamo thus differ in important respects from the 18th-century relations between
England and the kingdoms of Scotland and Hanover. This is reason enough for us to
discount the relevance of the Government’s analogy.
Each side in the present matter argues that the very lack of a precedent on point
supports its position. The Government points out there is no evidence that a court sitting in
England granted habeas relief to an enemy alien detained abroad; petitioners respond
there is no evidence that a court refused to do so for lack of jurisdiction.
Both arguments are premised, however, upon the assumption that the historical record is
complete and that the common law, if properly understood, yields a definite answer to the
questions before us. There are reasons to doubt both assumptions. Recent scholarship
points to the inherent shortcomings in the historical record. See Halliday & White 14–15
(noting that most reports of 18th-century habeas proceedings were not printed). And given
the unique status of Guantanamo Bay and the particular dangers of terrorism in the
modern age, the common-law courts simply may not have confronted cases with close
parallels to this one. We decline, therefore, to infer too much, one way or the other, from
the lack of historical evidence on point. Cf. Brown v. Board of Education, 347 U. S. 483,
489 (1954) (noting evidence concerning the circumstances surrounding the adoption of the
Fourteenth Amendment, discussed in the parties’ briefs and uncovered through the Court’s
own investigation, “convince us that, although these sources cast some light, it is not
enough to resolve the problem with which we are faced. At best, they are
inconclusive”); Reid v. Covert, 354 U. S. 1, 64 (1957) (Frankfurter, J., concurring in result)
(arguing constitutional adjudication should not be based upon evidence that is “too
episodic, too meager, to form a solid basis in history, preceding and contemporaneous
with the framing of the Constitution”).
IV
Drawing from its position that at common law the writ ran only to territories over which
the Crown was sovereign, the Government says the Suspension Clause affords petitioners
no rights because the United States does not claim sovereignty over the place of detention.
Guantanamo Bay is not formally part of the United States. See DTA §1005(g), 119 Stat.
2743. And under the terms of the lease between the United States and Cuba, Cuba retains
“ultimate sovereignty” over the territory while the United States exercises “complete
jurisdiction and control.” See Lease of Lands for Coaling and Naval Stations, Feb. 23,
1903, U. S.-Cuba, Art. III, T. S. No. 418 (hereinafter 1903 Lease Agreement); Rasul, 542 U.
S., at 471. Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as
a sovereign until the parties agree to modification of the 1903 Lease Agreement or the
United States abandons the base. See Treaty Defining Relations with Cuba, May 29, 1934,
U. S.-Cuba, Art. III, 48 Stat. 1683, T. S. No. 866.
The United States contends, nevertheless, that Guantanamo is not within its sovereign
control. This was the Government’s position well before the events of September 11, 2001.
See, e.g., Brief for Petitioners in Sale v. Haitian Centers Council, Inc., O. T. 1992, No. 92–
344, p. 31 (arguing that Guantanamo is territory “outside the United States”). And in other
contexts the Court has held that questions of sovereignty are for the political branches to
decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377, 380 (1948) (“[D]etermination of
sovereignty over an area is for the legislative and executive departments”); see
also Jones v. United States, 137 U. S. 202 (1890); Williams v. Suffolk Ins. Co., 13 Pet. 415,
420 (1839). Even if this were a treaty interpretation case that did not involve a political
question, the President’s construction of the lease agreement would be entitled to great
respect. See Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185 (1982).
We therefore do not question the Government’s position that Cuba, not the United States,
maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay.
But this does not end the analysis. Our cases do not hold it is improper for us to inquire
into the objective degree of control the Nation asserts over foreign territory. As
commentators have noted, “ ‘[s]overeignty’ is a term used in many senses and is much
abused. ” See 1 Restatement (Third) of Foreign Relations Law of the United States §206,
Comment b, p. 94 (1986). When we have stated that sovereignty is a political question, we
have referred not to sovereignty in the general, colloquial sense, meaning the exercise of
dominion or power, see Webster’s New International Dictionary 2406 (2d ed. 1934)
(“sovereignty,” definition 3), but sovereignty in the narrow, legal sense of the term,
meaning a claim of right, see 1 Restatement (Third) of Foreign Relations, supra, §206,
Comment b, at 94 (noting that sovereignty “implies a state’s lawful control over its territory
generally to the exclusion of other states, authority to govern in that territory, and authority
to apply law there”). Indeed, it is not altogether uncommon for a territory to be under the de
jure sovereignty of one nation, while under the plenary control, or practical sovereignty, of
another. This condition can occur when the territory is seized during war, as Guantanamo
was during the Spanish-American War. See, e.g., Fleming v. Page, 9 How. 603, 614 (1850)
(noting that the port of Tampico, conquered by the United States during the war with
Mexico, was “undoubtedly … subject to the sovereignty and dominion of the United
States,” but that it “does not follow that it was a part of the United States, or that it ceased
to be a foreign country”); King v. Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576,
603–604 (C. A.) (opinion of Williams, L. J.) (arguing that the Bechuanaland Protectorate in
South Africa was “under His Majesty’s dominion in the sense of power and jurisdiction, but
is not under his dominion in the sense of territorial dominion”). Accordingly, for purposes of
our analysis, we accept the Government’s position that Cuba, and not the United States,
retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take
notice of the obvious and uncontested fact that the United States, by virtue of its complete
jurisdiction and control over the base, maintains de facto sovereignty over this territory.
See 542 U. S., at 480; id., at 487 (Kennedy, J., concurring in judgment).
Were we to hold that the present cases turn on the political question doctrine, we would
be required first to accept the Government’s premise that de jure sovereignty is the
touchstone of habeas corpus jurisdiction. This premise, however, is unfounded. For the
reasons indicated above, the history of common-law habeas corpus provides scant
support for this proposition; and, for the reasons indicated below, that position would be
inconsistent with our precedents and contrary to fundamental separation-of-powers
principles.
A
The Court has discussed the issue of the Constitution’s extraterritorial application on
many occasions. These decisions undermine the Government’s argument that, at least as
applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends.
 The Framers foresaw that the United States would expand and acquire new territories.
See American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV, §3, cl. 1,
grants Congress the power to admit new States. Clause 2 of the same section grants
Congress the “Power to dispose of and make all needful Rules and Regulations respecting
the Territory or other Property belonging to the United States.” Save for a few notable (and
notorious) exceptions, e.g., Dred Scott v. Sandford, 19 How. 393 (1857), throughout most
of our history there was little need to explore the outer boundaries of the Constitution’s
geographic reach. When Congress exercised its power to create new territories, it
guaranteed constitutional protections to the inhabitants by statute. See, e.g., An Act: to
establish a Territorial Government for Utah, 9 Stat. 458 (“[T]he Constitution and laws of the
United States are hereby extended over and declared to be in force in said Territory of
Utah”); Rev. Stat. §1891 (“The Constitution and all laws of the United States which are not
locally inapplicable shall have the same force and effect within all the organized Territories,
and in every Territory hereafter organized as elsewhere within the United States”); see
generally Burnett, Untied States: American Expansion and Territorial Deannexation, 72 U.
Chi. L. Rev. 797, 825–827 (2005). In particular, there was no need to test the limits of the
Suspension Clause because, as early as 1789, Congress extended the writ to the
Territories. See Act of Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest Ordinance
of 1787, which provided that “[t]he inhabitants of the said territory, shall always be entitled
to the benefits of the writ of habeas corpus”).
Fundamental questions regarding the Constitution’s geographic scope first arose at the
dawn of the 20th century when the Nation acquired noncontiguous Territories: Puerto Rico,
Guam, and the Philippines—ceded to the United States by Spain at the conclusion of the
Spanish-American War—and Hawaii—annexed by the United States in 1898. At this point
Congress chose to discontinue its previous practice of extending constitutional rights to the
territories by statute. See, e.g., An Act Temporarily to provide for the administration of the
affairs of civil government in the Philippine Islands, and for other purposes, 32 Stat. 692
(noting that Rev. Stat. §1891 did not apply to the Philippines).
In a series of opinions later known as the Insular Cases, the Court addressed whether
the Constitution, by its own force, applies in any territory that is not a State. See De
Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United States, 182 U. S.
222 (1901); Armstrong v. United States, 182 U. S. 243 (1901); Downes v. Bidwell, 182 U.
S. 244 (1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v. United States, 195 U. S.
138 (1904). The Court held that the Constitution has independent force in these territories,
a force not contingent upon acts of legislative grace. Yet it took note of the difficulties
inherent in that position.
Prior to their cession to the United States, the former Spanish colonies operated under a
civil-law system, without experience in the various aspects of the Anglo-American legal
tradition, for instance the use of grand and petit juries. At least with regard to the
Philippines, a complete transformation of the prevailing legal culture would have been not
only disruptive but also unnecessary, as the United States intended to grant independence
to that Territory. See An Act To declare the purpose of the people of the United States as
to the future political status of the people of the Philippine Islands, and to provide a more
autonomous government for those islands (Jones Act), 39 Stat. 545 (noting that “it was
never the intention of the people of the United States in the incipiency of the War with
Spain to make it a war of conquest or for territorial aggrandizement” and that “it is, as it has
always been, the purpose of the people of the United States to withdraw their sovereignty
over the Philippine Islands and to recognize their independence as soon as a stable
government can be established therein”). The Court thus was reluctant to risk the
uncertainty and instability that could result from a rule that displaced altogether the existing
legal systems in these newly acquired Territories. See Downes, supra, at 282 (“It is
obvious that in the annexation of outlying and distant possessions grave questions will
arise from differences of race, habits, laws and customs of the people, and from
differences of soil, climate and production … ”).
These considerations resulted in the doctrine of territorial incorporation, under which the
Constitution applies in full in incorporated Territories surely destined for statehood but only
in part in unincorporated Territories. See Dorr, supra, at 143 (“Until Congress shall see fit
to incorporate territory ceded by treaty into the United States, … the territory is to be
governed under the power existing in Congress to make laws for such territories and
subject to such constitutional restrictions upon the powers of that body as are applicable to
the situation”); Downes, supra, at 293 (White, J., concurring) (“[T]he determination of what
particular provision of the Constitution is applicable, generally speaking, in all cases,
involves an inquiry into the situation of the territory and its relations to the United States”).
As the Court later made clear, “the real issue in the Insular Cases was not whether the
Constitution extended to the Philippines or Porto Rico when we went there, but which of its
provisions were applicable by way of limitation upon the exercise of executive and
legislative power in dealing with new conditions and requirements.” Balzac v. Porto
Rico, 258 U. S. 298, 312 (1922). It may well be that over time the ties between the United
States and any of its unincorporated Territories strengthen in ways that are of
constitutional significance. Cf. Torres v. Puerto Rico, 442 U. S. 465, 475–476 (1979)
(Brennan, J., concurring in judgment) (“Whatever the validity of the [Insular Cases] in the
particular historical context in which they were decided, those cases are clearly not
authority for questioning the application of the Fourth Amendment—or any other provision
of the Bill of Rights—to the Commonwealth of Puerto Rico in the 1970’s”). But, as early
as Balzac in 1922, the Court took for granted that even in unincorporated Territories the
Government of the United States was bound to provide to noncitizen inhabitants
“guaranties of certain fundamental personal rights declared in the Constitution.” 258 U. S.,
at 312; see also Late Corp. of Church of Jesus Christ of Latter-day Saints v. United
States, 136 U. S. 1, 44 (1890) (“Doubtless Congress, in legislating for the Territories would
be subject to those fundamental limitations in favor of personal rights which are formulated
in the Constitution and its amendments”). Yet noting the inherent practical difficulties of
enforcing all constitutional provisions “always and everywhere,” Balzac, supra, at 312, the
Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and
where it would be most needed. This century-old doctrine informs our analysis in the
present matter.
Practical considerations likewise influenced the Court’s analysis a half-century later
in Reid, 354 U. S. 1. The petitioners there, spouses of American servicemen, lived on
American military bases in England and Japan. They were charged with crimes committed
in those countries and tried before military courts, consistent with executive agreements
the United States had entered into with the British and Japanese governments.Id., at 15–
16, and nn. 29–30 (plurality opinion). Because the petitioners were not themselves military
personnel, they argued they were entitled to trial by jury.
Justice Black, writing for the plurality, contrasted the cases before him with the Insular
Cases, which involved territories “with wholly dissimilar traditions and institutions” that
Congress intended to govern only “temporarily.” Id., at 14. Justice Frankfurter argued that
the “specific circumstances of each particular case” are relevant in determining the
geographic scope of the Constitution. Id., at 54 (opinion concurring in result). And Justice
Harlan, who had joined an opinion reaching the opposite result in the case in the previous
Term, Reid v. Covert, 351 U. S. 487 (1956), was most explicit in rejecting a “rigid and
abstract rule” for determining where constitutional guarantees extend. Reid, 354 U. S., at
74 (opinion concurring in result). He read the Insular Cases to teach that whether a
constitutional provision has extraterritorial effect depends upon the “particular
circumstances, the practical necessities, and the possible alternatives which Congress had
before it” and, in particular, whether judicial enforcement of the provision would be
“impracticable and anomalous.” Id., at 74–75; see also United States v. Verdugo-
Urquidez, 494 U. S. 259, 277–278 (1990) (Kennedy, J., concurring) (applying the
“impracticable and anomalous” extraterritoriality test in the Fourth Amendment context).
That the petitioners in Reid were American citizens was a key factor in the case and was
central to the plurality’s conclusion that the Fifth and Sixth Amendments apply to American
civilians tried outside the United States. But practical considerations, related not to the
petitioners’ citizenship but to the place of their confinement and trial, were relevant to each
Member of the Reid majority. And to Justices Harlan and Frankfurter (whose votes were
necessary to the Court’s disposition) these considerations were the decisive factors in the
case.
Indeed the majority splintered on this very point. The key disagreement between the
plurality and the concurring Justices in Reid was over the continued precedential value of
the Court’s previous opinion in In re Ross, 140 U. S. 453 (1891), which the Reid Court
understood as holding that under some circumstances Americans abroad have no right to
indictment and trial by jury. The petitioner in Ross was a sailor serving on an American
merchant vessel in Japanese waters who was tried before an American consular tribunal
for the murder of a fellow crewman. 140 U. S., at 459, 479. The Ross Court held that the
petitioner, who was a British subject, had no rights under the Fifth and Sixth
Amendments. Id., at 464. The petitioner’s citizenship played no role in the disposition of
the case, however. The Court assumed (consistent with the maritime custom of the time)
that Ross had all the rights of a similarly situated American citizen. Id., at 479 (noting that
Ross was “under the protection and subject to the laws of the United States equally with
the seaman who was native born”). The Justices in Reid therefore properly
understood Ross as standing for the proposition that, at least in some circumstances, the
jury provisions of the Fifth and Sixth Amendments have no application to American citizens
tried by American authorities abroad. See 354 U. S., at 11–12 (plurality opinion)
(describing Ross as holding that “constitutional protections applied ‘only to citizens and
others within the United States … and not to residents or temporary sojourners abroad’ ”
(quoting Ross, supra, at 464)); 354 U. S., at 64 (Frankfurter, J., concurring in result)
(noting that the consular tribunals upheld in Ross “w[ere] based on long-established
custom and they were justified as the best possible means for securing justice for the few
Americans present in [foreign] countries”); 354 U. S., at 75 (Harlan, J., concurring in result)
(“what Ross and the Insular Cases hold is that the particular local setting, the practical
necessities, and the possible alternatives are relevant to a question of judgment, namely,
whether jury trial should be deemed a necessary condition of the exercise of Congress’
power to provide for the trial of Americans overseas”).
The Reid plurality doubted that Ross was rightly decided, precisely because it believed
the opinion was insufficiently protective of the rights of American citizens. See 354 U. S., at
10–12; see also id., at 78 (Clark, J., dissenting) (noting that “four of my brothers would
specifically overrule and two would impair the long-recognized vitality of an old and
respected precedent in our law, the case of In re Ross, 140 U. S. 453 (1891)”). But
Justices Harlan and Frankfurter, while willing to hold that the American citizen petitioners
in the cases before them were entitled to the protections of Fifth and Sixth Amendments,
were unwilling to overturn Ross. 354 U. S., at 64 (Frankfurter, J., concurring in result); id.,
at 75 (Harlan, J., concurring in result). Instead, the two concurring Justices
distinguished Ross from the cases before them, not on the basis of the citizenship of the
petitioners, but on practical considerations that made jury trial a more feasible option for
them than it was for the petitioner in Ross. If citizenship had been the only relevant factor
in the case, it would have been necessary for the Court to overturn Ross, something
Justices Harlan and Frankfurter were unwilling to do. See Verdugo-Urquidez, supra, at 277
(Kennedy, J., concurring) (noting that Ross had not been overruled).
Practical considerations weighed heavily as well in Johnson v. Eisentrager, 339 U. S.
763 (1950), where the Court addressed whether habeas corpus jurisdiction extended to
enemy aliens who had been convicted of violating the laws of war. The prisoners were
detained at Landsberg Prison in Germany during the Allied Powers’ postwar occupation.
The Court stressed the difficulties of ordering the Government to produce the prisoners in
a habeas corpus proceeding. It “would require allocation of shipping space, guarding
personnel, billeting and rations” and would damage the prestige of military commanders at
a sensitive time. Id., at 779. In considering these factors the Court sought to balance the
constraints of military occupation with constitutional necessities. Id., at 769–779; see Rasul,
542 U. S., at 475–476 (discussing the factors relevant to Eisentrager’s constitutional
holding); 542 U. S., at 486 (Kennedy, J., concurring in judgment) (same).
True, the Court in Eisentrager denied access to the writ, and it noted the prisoners “at no
relevant time were within any territory over which the United States is sovereign, and [that]
the scenes of their offense, their capture, their trial and their punishment were all beyond
the territorial jurisdiction of any court of the United States.” 339 U. S., at 778. The
Government seizes upon this language as proof positive that the Eisentrager Court
adopted a formalistic, sovereignty-based test for determining the reach of the Suspension
Clause. See Brief for Respondents 18–20. We reject this reading for three reasons.
First, we do not accept the idea that the above-quoted passage from Eisentrager is the
only authoritative language in the opinion and that all the rest is dicta. The Court’s further
determinations, based on practical considerations, were integral to Part II of its opinion and
came before the decision announced its holding. See 339 U. S., at 781.
Second, because the United States lacked both de jure sovereignty and plenary control
over Landsberg Prison, see infra, at 34–35, it is far from clear that the Eisentrager Court
used the term sovereignty only in the narrow technical sense and not to connote the
degree of control the military asserted over the facility. See supra, at 21. The Justices who
decided Eisentrager would have understood sovereignty as a multifaceted concept. See
Black’s Law Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as “[t]he supreme,
absolute, and uncontrollable power by which any independent state is governed”; “the
international independence of a state, combined with the right and power of regulating its
internal affairs without foreign dictation”; and “[t]he power to do everything in a state
without accountability”); Ballentine’s Law Dictionary with Pronunciations 1216 (2d ed. 1948)
(defining “sovereignty” as “[t]hat public authority which commands in civil society, and
orders and directs what each citizen is to perform to obtain the end of its institution”). In its
principal brief in Eisentrager, the Government advocated a bright-line test for determining
the scope of the writ, similar to the one it advocates in these cases. See Brief for
Petitioners in Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75. Yet the Court
mentioned the concept of territorial sovereignty only twice in its opinion.
See Eisentrager, supra, at 778, 780. That the Court devoted a significant portion of Part II
to a discussion of practical barriers to the running of the writ suggests that the Court was
not concerned exclusively with the formal legal status of Landsberg Prison but also with
the objective degree of control the United States asserted over it. Even if we assume
the Eisentrager Court considered the United States’ lack of formal legal sovereignty over
Landsberg Prison as the decisive factor in that case, its holding is not inconsistent with a
functional approach to questions of extraterritoriality. The formal legal status of a given
territory affects, at least to some extent, the political branches’ control over that
territory. De jure sovereignty is a factor that bears upon which constitutional guarantees
apply there.
Third, if the Government’s reading of Eisentrager were correct, the opinion would have
marked not only a change in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach to questions of extraterritoriality. We cannot accept the
Government’s view. Nothing in Eisentrager says that de jure sovereignty is or has ever
been the only relevant consideration in determining the geographic reach of the
Constitution or of habeas corpus. Were that the case, there would be considerable tension
between Eisentrager, on the one hand, and the Insular Cases and Reid, on the other. Our
cases need not be read to conflict in this manner. A constricted reading
of Eisentrager overlooks what we see as a common thread uniting the Insular
Cases, Eisentrager, and Reid: the idea that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.
B “(a) is an enemy alien; (b) has never been or resided in the United States; (c) was
The Government’s formal sovereignty-based test raises troubling separation-of-powers
concerns as well. The political history of Guantanamo illustrates the deficiencies of this
approach. The United States has maintained complete and uninterrupted control of the bay
for over 100 years. At the close of the Spanish-American War, Spain ceded control over
the entire island of Cuba to the United States and specifically “relinquishe[d] all claim[s] of
sovereignty … and title.” See Treaty of Paris, Dec. 10, 1898, U. S.-Spain, Art. I, 30 Stat.
1755, T. S. No. 343. From the date the treaty with Spain was signed until the Cuban
Republic was established on May 20, 1902, the United States governed the territory “in
trust” for the benefit of the Cuban people. Neely v. Henkel, 180 U. S. 109, 120 (1901); H.
Thomas, Cuba or The Pursuit of Freedom 436, 460 (1998). And although it recognized, by
entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over
Guantanamo, the United States continued to maintain the same plenary control it had
enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there,
at least as to noncitizens, because the United States disclaimed sovereignty in the formal
sense of the term. The necessary implication of the argument is that by surrendering
formal sovereignty over any unincorporated territory to a third party, while at the same time
entering into a lease that grants total control over the territory back to the United States, it
would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress
and the President the power to acquire, dispose of, and govern territory, not the power to
decide when and where its terms apply. Even when the United States acts outside its
borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as
are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining
from questions involving formal sovereignty and territorial governance is one thing. To hold
the political branches have the power to switch the Constitution on or off at will is quite
another. The former position reflects this Court’s recognition that certain matters requiring
political judgments are best left to the political branches. The latter would permit a striking
anomaly in our tripartite system of government, leading to a regime in which Congress and
the President, not this Court, say “what the law is.”Marbury v. Madison, 1 Cranch 137, 177
(1803).
These concerns have particular bearing upon the Suspension Clause question in the
cases now before us, for the writ of habeas corpus is itself an indispensable mechanism
for monitoring the separation of powers. The test for determining the scope of this
provision must not be subject to manipulation by those whose power it is designed to
restrain.
C
As we recognized in Rasul, 542 U. S., at 476; id., at 487 (Kennedy, J., concurring in
judgment), the outlines of a framework for determining the reach of the Suspension Clause
are suggested by the factors the Court relied upon in Eisentrager. In addition to the
practical concerns discussed above, the Eisentrager Court found relevant that each
petitioner:
captured outside of our territory and there held in military custody as a prisoner of war; (d)
was tried and convicted by a Military Commission sitting outside the United States; (e) for
offenses against laws of war committed outside the United States; (f) and is at all times
imprisoned outside the United States.” 339 U. S., at 777.
Based on this language from Eisentrager, and the reasoning in our other extraterritoriality
opinions, we conclude that at least three factors are relevant in determining the reach of
the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of
the process through which that status determination was made; (2) the nature of the sites
where apprehension and then detention took place; and (3) the practical obstacles
inherent in resolving the prisoner’s entitlement to the writ.
Applying this framework, we note at the onset that the status of these detainees is a
matter of dispute. The petitioners, like those in Eisentrager, are not American citizens. But
the petitioners in Eisentrager did not contest, it seems, the Court’s assertion that they were
“enemy alien[s].” Ibid. In the instant cases, by contrast, the detainees deny they are enemy
combatants. They have been afforded some process in CSRT proceedings to determine
their status; but, unlike in Eisentrager, supra, at 766, there has been no trial by military
commission for violations of the laws of war. The difference is not trivial. The records from
the Eisentrager trials suggest that, well before the petitioners brought their case to this
Court, there had been a rigorous adversarial process to test the legality of their detention.
The Eisentrager petitioners were charged by a bill of particulars that made detailed factual
allegations against them. See 14 United Nations War Crimes Commission, Law Reports of
Trials of War Criminals 8–10 (1949) (reprint 1997). To rebut the accusations, they were
entitled to representation by counsel, allowed to introduce evidence on their own behalf,
and permitted to cross-examine the prosecution’s witnesses. See Memorandum by
Command of Lt. Gen. Wedemeyer, Jan. 21, 1946 (establishing “Regulations Governing the
Trial of War Criminals” in the China Theater), in Tr. of Record in Johnson v. Eisentrager, O.
T. 1949, No. 306, pp. 34–40.
In comparison the procedural protections afforded to the detainees in the CSRT hearings
are far more limited, and, we conclude, fall well short of the procedures and adversarial
mechanisms that would eliminate the need for habeas corpus review. Although the
detainee is assigned a “Personal Representative” to assist him during CSRT proceedings,
the Secretary of the Navy’s memorandum makes clear that person is not the detainee’s
lawyer or even his “advocate.” See App. to Pet. for Cert. in No. 06–1196, at 155, 172. The
Government’s evidence is accorded a presumption of validity. Id., at 159. The detainee is
allowed to present “reasonably available” evidence, id., at 155, but his ability to rebut the
Government’s evidence against him is limited by the circumstances of his confinement and
his lack of counsel at this stage. And although the detainee can seek review of his status
determination in the Court of Appeals, that review process cannot cure all defects in the
earlier proceedings. See Part V, infra.
As to the second factor relevant to this analysis, the detainees here are similarly situated
to the Eisentrager petitioners in that the sites of their apprehension and detention are
technically outside the sovereign territory of the United States. As noted earlier, this is a
factor that weighs against finding they have rights under the Suspension Clause. But there
are critical differences between Landsberg Prison, circa 1950, and the United States Naval
Station at Guantanamo Bay in 2008. Unlike its present control over the naval station, the
United States’ control over the prison in Germany was neither absolute nor indefinite. Like
all parts of occupied Germany, the prison was under the jurisdiction of the combined Allied
Forces. See Declaration Regarding the Defeat of Germany and the Assumption of
Supreme Authority with Respect to Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60
Stat. 1649, T. I. A. S. No. 1520. The United States was therefore answerable to its Allies
for all activities occurring there. Cf. Hirota v. MacArthur, 338 U. S. 197, 198 (1948) (per
curiam) (military tribunal set up by Gen. Douglas MacArthur, acting as “the agent of the
Allied Powers,” was not a “tribunal of the United States”). The Allies had not planned a
long-term occupation of Germany, nor did they intend to displace all German institutions
even during the period of occupation. See Agreements Respecting Basic Principles for
Merger of the Three Western German Zones of Occupation, and Other Matters, Apr. 8,
1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819, T. I. A. S. No. 2066 (establishing a governing
framework “[d]uring the period in which it is necessary that the occupation continue” and
expressing the desire “that the German people shall enjoy self-government to the
maximum possible degree consistent with such occupation”). The Court’s holding
in Eisentrager was thus consistent with the Insular Cases, where it had held there was no
need to extend full constitutional protections to territories the United States did not intend
to govern indefinitely. Guantanamo Bay, on the other hand, is no transient possession. In
every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the
United States. See Rasul, 542 U. S., at 480; id., at 487 (Kennedy, J., concurring in
judgment).
As to the third factor, we recognize, as the Court did in Eisentrager, that there are costs
to holding the Suspension Clause applicable in a case of military detention abroad.
Habeas corpus proceedings may require expenditure of funds by the Government and
may divert the attention of military personnel from other pressing tasks. While we are
sensitive to these concerns, we do not find them dispositive. Compliance with any judicial
process requires some incremental expenditure of resources. Yet civilian courts and the
Armed Forces have functioned along side each other at various points in our history.
See, e.g., Duncan v. Kahanamoku, 327 U. S. 304 (1946); Ex parte Milligan, 4 Wall. 2
(1866). The Government presents no credible arguments that the military mission at
Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the
detainees’ claims. And in light of the plenary control the United States asserts over the
base, none are apparent to us.
The situation in Eisentrager was far different, given the historical context and nature of
the military’s mission in post-War Germany. When hostilities in the European Theater
came to an end, the United States became responsible for an occupation zone
encompassing over 57,000 square miles with a population of 18 million. See Letter from
President Truman to Secretary of State Byrnes, (Nov. 28, 1945), in 8 Documents on
American Foreign Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock, A Territorial
Pattern for the Military Occupation of Germany, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In
addition to supervising massive reconstruction and aid efforts the American forces
stationed in Germany faced potential security threats from a defeated enemy. In retrospect
the post-War occupation may seem uneventful. But at the time Eisentrager was decided,
the Court was right to be concerned about judicial interference with the military’s efforts to
contain “enemy elements, guerilla fighters, and ‘were-wolves.’ ” 339 U. S., at 784.
Similar threats are not apparent here; nor does the Government argue that they are. The
United States Naval Station at Guantanamo Bay consists of 45 square miles of land and
water. The base has been used, at various points, to house migrants and refugees
temporarily. At present, however, other than the detainees themselves, the only long-term
residents are American military personnel, their families, and a small number of workers.
See History of Guantanamo Bay online at https://www.cnic.
navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/ gtmohistgeneral. The detainees
have been deemed enemies of the United States. At present, dangerous as they may be if
released, they are contained in a secure prison facility located on an isolated and heavily
fortified military base.
There is no indication, furthermore, that adjudicating a habeas corpus petition would
cause friction with the host government. No Cuban court has jurisdiction over American
military personnel at Guantanamo or the enemy combatants detained there. While
obligated to abide by the terms of the lease, the United States is, for all practical purposes,
answerable to no other sovereign for its acts on the base. Were that not the case, or if the
detention facility were located in an active theater of war, arguments that issuing the writ
would be “impracticable or anomalous” would have more weight. See Reid, 354 U. S., at
74 (Harlan, J., concurring in result). Under the facts presented here, however, there are
few practical barriers to the running of the writ. To the extent barriers arise, habeas corpus
procedures likely can be modified to address them. See Part VI–B, infra.
It is true that before today the Court has never held that noncitizens detained by our
Government in territory over which another country maintains de jure sovereignty have any
rights under our Constitution. But the cases before us lack any precise historical parallel.
They involve individuals detained by executive order for the duration of a conflict that, if
measured from September 11, 2001, to the present, is already among the longest wars in
American history. See Oxford Companion to American Military History 849 (1999). The
detainees, moreover, are held in a territory that, while technically not part of the United
States, is under the complete and total control of our Government. Under these
circumstances the lack of a precedent on point is no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the
privilege of habeas corpus is to be denied to the detainees now before us, Congress must
act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S.,
at 564 (Scalia, J., dissenting) (“[I]ndefinite imprisonment on reasonable suspicion is not an
available option of treatment for those accused of aiding the enemy, absent a suspension
of the writ”). This Court may not impose a de facto suspension by abstaining from these
controversies. See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not appropriate in
cases … in which the legal challenge ‘turn[s] on the status of the persons as to whom the
military asserted its power’ ” (quoting Schlesinger v. Councilman, 420 U. S. 738, 759
(1975))). The MCA does not purport to be a formal suspension of the writ; and the
Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are
entitled to the privilege of habeas corpus to challenge the legality of their detention.
V
In light of this holding the question becomes whether the statute stripping jurisdiction to
issue the writ avoids the Suspension Clause mandate because Congress has provided
adequate substitute procedures for habeas corpus. The Government submits there has
been compliance with the Suspension Clause because the DTA review process in the
Court of Appeals, see DTA §1005(e), provides an adequate substitute. Congress has
granted that court jurisdiction to consider
“(i) whether the status determination of the [CSRT] … was consistent with the standards
and procedures specified by the Secretary of Defense … and (ii) to the extent the
Constitution and laws of the United States are applicable, whether the use of such
standards and procedures to make the determination is consistent with the Constitution
and laws of the United States.” §1005(e)(2)(C), 119 Stat. 2742.
The Court of Appeals, having decided that the writ does not run to the detainees in any
event, found it unnecessary to consider whether an adequate substitute has been provided.
In the ordinary course we would remand to the Court of Appeals to consider this question
in the first instance. See Youakim v. Miller, 425 U. S. 231, 234 (1976) (per curiam). It is
well settled, however, that the Court’s practice of declining to address issues left
unresolved in earlier proceedings is not an inflexible rule. Ibid. Departure from the rule is
appropriate in “exceptional” circumstances. See Cooper Industries, Inc. v. Aviall Services,
Inc., 543 U. S. 157, 169 (2004); Duignan v. United States, 274 U. S. 195, 200 (1927).
The gravity of the separation-of-powers issues raised by these cases and the fact that
these detainees have been denied meaningful access to a judicial forum for a period of
years render these cases exceptional. The parties before us have addressed the
adequacy issue. While we would have found it informative to consider the reasoning of the
Court of Appeals on this point, we must weigh that against the harms petitioners may
endure from additional delay. And, given there are few precedents addressing what
features an adequate substitute for habeas corpus must contain, in all likelihood a remand
simply would delay ultimate resolution of the issue by this Court.
We do have the benefit of the Court of Appeals’ construction of key provisions of the
DTA. When we granted certiorari in these cases, we noted “it would be of material
assistance to consult any decision” in the parallel DTA review proceedings pending in the
Court of Appeals, specifically any rulings in the matter of Bismullah v. Gates. 551 U. S. ___
(2007). Although the Court of Appeals has yet to complete a DTA review proceeding, the
three-judge panel in Bismullah has issued an interim order giving guidance as to what
evidence can be made part of the record on review and what access the detainees can
have to counsel and to classified information. See 501 F. 3d 178 (CADC) (Bismullah I),
reh’g denied, 503 F. 3d 137 (CADC 2007) (Bismullah II). In that matter the full court denied
the Government’s motion for rehearing en banc, see Bismullah v. Gates, 514 F. 3d 1291
(CADC 2008) (Bismullah III). The order denying rehearing was accompanied by five
separate statements from members of the court, which offer differing views as to scope of
the judicial review Congress intended these detainees to have. Ibid.
Under the circumstances we believe the costs of further delay substantially outweigh any
benefits of remanding to the Court of Appeals to consider the issue it did not address in
these cases.
A
Our case law does not contain extensive discussion of standards defining suspension of
the writ or of circumstances under which suspension has occurred. This simply confirms
the care Congress has taken throughout our Nation’s history to preserve the writ and its
function. Indeed, most of the major legislative enactments pertaining to habeas corpus
have acted not to contract the writ’s protection but to expand it or to hasten resolution of
prisoners’ claims. See, e.g., Habeas Corpus Act of 1867, ch. 28, §1, 14 Stat. 385 (current
version codified at 28 U. S. C. §2241 (2000 ed. and Supp. V) (extending the federal writ to
state prisoners)); Cf. Harris v. Nelson, 394 U. S. 286, 299–300 (1969) (interpreting the All
Writs Act, 28 U. S. C. §1651, to allow discovery in habeas corpus
proceedings); Peyton v. Rowe, 391 U. S. 54, 64–65 (1968) (interpreting the then-existing
version of §2241 to allow petitioner to proceed with his habeas corpus action, even though
he had not yet begun to serve his sentence).
There are exceptions, of course. Title I of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), §106, 110 Stat. 1220, contains certain gatekeeping provisions that
restrict a prisoner’s ability to bring new and repetitive claims in “second or successive”
habeas corpus actions. We upheld these provisions against a Suspension Clause
challenge in Felker v. Turpin, 518 U. S. 651, 662–664 (1996). The provisions at issue
in Felker, however, did not constitute a substantial departure from common-law habeas
procedures. The provisions, for the most part, codified the longstanding abuse-of-the-writ
doctrine. Id., at 664; see also McCleskey v. Zant, 499 U. S. 467, 489 (1991). AEDPA
applies, moreover, to federal, postconviction review after criminal proceedings in state
court have taken place. As of this point, cases discussing the implementation of that
statute give little helpful instruction (save perhaps by contrast) for the instant cases, where
no trial has been held.
The two leading cases addressing habeas substitutes, Swain v. Pressley, 430 U. S.
372 (1977), and United States v. Hayman, 342 U. S. 205 (1952), likewise provide little
guidance here. The statutes at issue were attempts to streamline habeas corpus relief, not
to cut it back.
The statute discussed in Hayman was 28 U. S. C. §2255. It replaced traditional habeas
corpus for federal prisoners (at least in the first instance) with a process that allowed the
prisoner to file a motion with the sentencing court on the ground that his sentence
was, inter alia, “ ‘imposed in violation of the Constitution or laws of the United States.’ ” 342
U. S., at 207, n. 1. The purpose and effect of the statute was not to restrict access to the
writ but to make postconviction proceedings more efficient. It directed claims not to the
court that had territorial jurisdiction over the place of the petitioner’s confinement but to the
sentencing court, a court already familiar with the facts of the case. As the Hayman Court
explained
“Section 2255 … was passed at the instance of the Judicial Conference to meet practical
difficulties that had arisen in administering the habeas corpus jurisdiction of the federal
courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon
prisoners’ rights of collateral attack upon their convictions. On the contrary, the sole
purpose was to minimize the difficulties encountered in habeas corpus hearings by
affording the same rights in another and more convenient forum.” Id., at 219.
See also Hill v. United States, 368 U. S. 424, 427, 428, and n. 5 (1962) (noting that §2255
provides a remedy in the sentencing court that is “exactly commensurate” with the pre-
existing federal habeas corpus remedy).
The statute in Swain, D. C. Code Ann. §23–110(g) (1973), applied to prisoners in
custody under sentence of the Superior Court of the District of Columbia. Before
enactment of the District of Columbia Court Reform and Criminal Procedure Act of 1970
(D. C. Court Reform Act), 84 Stat. 473, those prisoners could file habeas petitions in the
United States District Court for the District of Columbia. The Act, which was patterned on
§2255, substituted a new collateral process in the Superior Court for the pre-existing
habeas corpus procedure in the District Court. See Swain, 430 U. S., at 374–378. But,
again, the purpose and effect of the statute was to expedite consideration of the prisoner’s
claims, not to delay or frustrate it. See id., at 375, n. 4 (noting that the purpose of the D. C.
Court Reform Act was to “alleviate” administrative burdens on the District Court).
That the statutes in Hayman and Swain were designed to strengthen, rather than dilute,
the writ’s protections was evident, furthermore, from this significant fact: Neither statute
eliminated traditional habeas corpus relief. In both cases the statute at issue had a saving
clause, providing that a writ of habeas corpus would be available if the alternative process
proved inadequate or ineffective. Swain, supra, at 381; Hayman, supra, at 223. The Court
placed explicit reliance upon these provisions in upholding the statutes against
constitutional challenges. See Swain, supra, at 381 (noting that the provision “avoid[ed]
any serious question about the constitutionality of the statute”); Hayman, supra, at 223
(noting that, because habeas remained available as a last resort, it was unnecessary to
“reach constitutional questions”).
Unlike in Hayman and Swain, here we confront statutes, the DTA and the MCA, that
were intended to circumscribe habeas review. Congress’ purpose is evident not only from
the unequivocal nature of MCA §7’s jurisdiction-stripping language, 28 U. S. C. A.
§2241(e)(1) (Supp. 2007) (“No court, justice, or judge shall have jurisdiction to hear or
consider an application for a writ of habeas corpus . . .”), but also from a comparison of the
DTA to the statutes at issue in Hayman and Swain. When interpreting a statute, we
examine related provisions in other parts of the U. S. Code. See, e.g., West Virginia Univ.
Hospitals, Inc. v. Casey, 499 U. S. 83, 88–97 (1991); Babbitt v. Sweet Home Chapter,
Communities for Great Ore., 515 U. S. 687, 717–718 (1995) (Scalia, J., dissenting); see
generally W. Eskridge, P. Frickey, & E. Garrett, Cases and Materials on Legislation:
Statutes and the Creation of Public Policy 1039 (3d ed. 2001). When Congress has
intended to replace traditional habeas corpus with habeas-like substitutes, as was the case
in Hayman and Swain, it has granted to the courts broad remedial powers to secure the
historic office of the writ. In the §2255 context, for example, Congress has granted to the
reviewing court power to “determine the issues and make findings of fact and conclusions
of law” with respect to whether “the judgment [of conviction] was rendered without
jurisdiction, or … the sentence imposed was not authorized by law or otherwise open to
collateral attack.” 28 U. S. C. A. §2255(b) (Supp. 2008). The D. C. Court Reform Act, the
statute upheld in Swain, contained a similar provision. §23–110(g), 84 Stat. 609.
In contrast the DTA’s jurisdictional grant is quite limited. The Court of Appeals has
jurisdiction not to inquire into the legality of the detention generally but only to assess
whether the CSRT complied with the “standards and procedures specified by the
Secretary of Defense” and whether those standards and procedures are lawful. DTA
§1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned DTA review as coextensive
with traditional habeas corpus, it would not have drafted the statute in this manner. Instead,
it would have used language similar to what it used in the statutes at issue
in Hayman and Swain. Cf. Russello v. United States, 464 U. S. 16, 23 (1983) (“ ‘[W]here
Congress includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion’ ” (quoting United States v. Wong Kim Bo,
472 F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and Swain, moreover, there has been
no effort to preserve habeas corpus review as an avenue of last resort. No saving clause
exists in either the MCA or the DTA. And MCA §7 eliminates habeas review for these
petitioners.
The differences between the DTA and the habeas statute that would govern in MCA §7’s
absence, 28 U. S. C. §2241 (2000 ed. and Supp. V), are likewise telling. In §2241 (2000
ed.) Congress confirmed the authority of “any justice” or “circuit judge” to issue the writ.
Cf. Felker, 518 U. S., at 660–661 (interpreting Title I of AEDPA to not strip from this Court
the power to entertain original habeas corpus petitions). That statute accommodates the
necessity for factfinding that will arise in some cases by allowing the appellate judge or
Justice to transfer the case to a district court of competent jurisdiction, whose institutional
capacity for factfinding is superior to his or her own. See 28 U. S. C. §2241(b). By granting
the Court of Appeals “exclusive” jurisdiction over petitioners’ cases, see DTA
§1005(e)(2)(A), 119 Stat. 2742, Congress has foreclosed that option. This choice indicates
Congress intended the Court of Appeals to have a more limited role in enemy combatant
status determinations than a district court has in habeas corpus proceedings. The DTA
should be interpreted to accord some latitude to the Court of Appeals to fashion
procedures necessary to make its review function a meaningful one, but, if congressional
intent is to be respected, the procedures adopted cannot be as extensive or as protective
of the rights of the detainees as they would be in a §2241 proceeding. Otherwise there
would have been no, or very little, purpose for enacting the DTA.
To the extent any doubt remains about Congress’ intent, the legislative history confirms
what the plain text strongly suggests: In passing the DTA Congress did not intend to create
a process that differs from traditional habeas corpus process in name only. It intended to
create a more limited procedure. See, e.g., 151 Cong. Rec. S14263 (Dec. 21, 2005)
(statement of Sen. Graham) (noting that the DTA “extinguish[es] these habeas and other
actions in order to effect a transfer of jurisdiction over these cases to the DC Circuit Court”
and agreeing that the bill “create[s] in their place a very limited judicial review of certain
military administrative decisions”); id., at S14268 (statement of Sen. Kyl) (“It is important to
note that the limited judicial review authorized by paragraphs 2 and 3 of subsection (e) [of
DTA §1005] are not habeas-corpus review. It is a limited judicial review of its own nature”).
It is against this background that we must interpret the DTA and assess its adequacy as
a substitute for habeas corpus. The present cases thus test the limits of the Suspension
Clause in ways that Hayman and Swain did not.
B to [the petitioner], it was not in his power to produce at the former hearing; [and] where the
We do not endeavor to offer a comprehensive summary of the requisites for an adequate
substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege
of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he
is being held pursuant to “the erroneous application or interpretation” of relevant law. St.
Cyr, 533 U. S., at 302. And the habeas court must have the power to order the conditional
release of an individual unlawfully detained—though release need not be the exclusive
remedy and is not the appropriate one in every case in which the writ is granted.
See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where imprisonment is unlawful, the court
“can only direct [the prisoner] to be discharged”); R. Hurd, Treatise on the Right of
Personal Liberty, and On the Writ of Habeas Corpus and the Practice Connected with It:
With a View of the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It cannot be denied
where ‘a probable ground is shown that the party is imprisoned without just cause, and
therefore, hath a right to be delivered,’ for the writ then becomes a ‘writ of right, which may
not be denied but ought to be granted to every man that is committed or detained in prison
or otherwise restrained of his liberty’ ”). But see Chessman v. Teets, 354 U. S. 156, 165–
166 (1957) (remanding in a habeas case for retrial within a “reasonable time”). These are
the easily identified attributes of any constitutionally adequate habeas corpus proceeding.
But, depending on the circumstances, more may be required.
Indeed, common-law habeas corpus was, above all, an adaptable remedy. Its precise
application and scope changed depending upon the circumstances. See 3 Blackstone
*131 (describing habeas as “the great and efficacious writ, in all manner of illegal
confinement”); see also Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at its core,
an equitable remedy”); Jones v. Cunningham, 371 U. S. 236, 243 (1963) (Habeas is not “a
static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose”). It
appears the common-law habeas court’s role was most extensive in cases of pretrial and
noncriminal detention, where there had been little or no previous judicial review of the
cause for detention. Notably, the black-letter rule that prisoners could not controvert facts
in the jailer’s return was not followed (or at least not with consistency) in such cases.
Hurd, supra, at 271 (noting that the general rule was “subject to exceptions” including
cases of bail and impressment); Oakes, Legal History in the High Court—Habeas Corpus,
64 Mich. L. Rev. 451, 457 (1966) (“[W]hen a prisoner applied for habeas corpus before
indictment or trial, some courts examined the written depositions on which he had been
arrested or committed, and others even heard oral testimony to determine whether the
evidence was sufficient to justifying holding him for trial” (footnotes omitted)); Fallon &
Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv.
L. Rev. 2029, 2102 (2007) (“[T]he early practice was not consistent: courts occasionally
permitted factual inquiries when no other opportunity for judicial review existed”).
There is evidence from 19th-century American sources indicating that, even in States
that accorded strong res judicata effect to prior adjudications, habeas courts in this country
routinely allowed prisoners to introduce exculpatory evidence that was either unknown or
previously unavailable to the prisoner. See, e.g., Ex parte Pattison, 56 Miss. 161, 164
(1878) (noting that “[w]hile the former adjudication must be considered as conclusive on
the testimony then adduced” “newly developed exculpatory evidence … may authorize the
admission to bail”); Ex parte Foster, 5 Tex. Ct. App. 625, 644 (1879) (construing the
State’s habeas statute to allow for the introduction of new evidence “where important
testimony has been obtained, which, though not newly discovered, or which, though known
evidence was newly discovered”); People v. Martin, 7 N. Y. Leg. Obs. 49, 56 (1848) (“If in
custody on criminal process before indictment, the prisoner has an absolute right to
demand that the original depositions be looked into to see whether any crime is in fact
imputed to him, and the inquiry will by no means be confined to the return. Facts out of the
return may be gone into to ascertain whether the committing magistrate may not have
arrived at an illogical conclusion upon the evidence given before him …”); see generally W.
Church, Treatise on the Writ of Habeas Corpus §182, p. 235 1886) (hereinafter Church)
(noting that habeas courts would “hear evidence anew if justice require it”). Justice
McLean, on Circuit in 1855, expressed his view that a habeas court should consider a prior
judgment conclusive “where there was clearly jurisdiction and a full and fair hearing; but
that it might not be so considered when any of these requisites were wanting.” Ex parte
Robinson, 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio 1855). To illustrate the
circumstances in which the prior adjudication did not bind the habeas court, he gave the
example of a case in which “[s]everal unimpeached witnesses” provided new evidence to
exculpate the prisoner. Ibid.
The idea that the necessary scope of habeas review in part depends upon the rigor of
any earlier proceedings accords with our test for procedural adequacy in the due process
context. See Mathews v. Eldridge, 424 U. S. 319, 335 (1976) (noting that the Due Process
Clause requires an assessment of, inter alia, “the risk of an erroneous deprivation of [a
liberty interest;] and the probable value, if any, of additional or substitute procedural
safeguards”). This principle has an established foundation in habeas corpus jurisprudence
as well, as Chief Justice Marshall’s opinion in Ex parte Watkins, 3 Pet. 193 (1830),
demonstrates. Like the petitioner in Swain, Watkins sought a writ of habeas corpus after
being imprisoned pursuant to a judgment of a District of Columbia court. In holding that the
judgment stood on “high ground,” 3 Pet., at 209, the Chief Justice emphasized the
character of the court that rendered the original judgment, noting it was a “court of record,
having general jurisdiction over criminal cases.” Id., at 203. In contrast to “inferior” tribunals
of limited jurisdiction, ibid., courts of record had broad remedial powers, which gave the
habeas court greater confidence in the judgment’s validity. See generally Neuman,
Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961,
982–983 (1998).
Accordingly, where relief is sought from a sentence that resulted from the judgment of a
court of record, as was the case in Watkins and indeed in most federal habeas cases,
considerable deference is owed to the court that ordered confinement.
See Brown v. Allen, 344 U. S. 443, 506 (1953) (opinion of Frankfurter, J.) (noting that a
federal habeas court should accept a state court’s factual findings unless “a vital flaw be
found in the process of ascertaining such facts in the State court”). Likewise in those cases
the prisoner should exhaust adequate alternative remedies before filing for the writ in
federal court. See Ex parte Royall, 117 U. S. 241, 251–252 (1886) (requiring exhaustion of
state collateral processes). Both aspects of federal habeas corpus review are justified
because it can be assumed that, in the usual course, a court of record provides defendants
with a fair, adversary proceeding. In cases involving state convictions this framework also
respects federalism; and in federal cases it has added justification because the prisoner
already has had a chance to seek review of his conviction in a federal forum through a
direct appeal. The present cases fall outside these categories, however; for here the
detention is by executive order.
Where a person is detained by executive order, rather than, say, after being tried and
convicted in a court, the need for collateral review is most pressing. A criminal conviction in
the usual course occurs after a judicial hearing before a tribunal disinterested in the
outcome and committed to procedures designed to ensure its own independence. These
dynamics are not inherent in executive detention orders or executive review procedures. In
this context the need for habeas corpus is more urgent. The intended duration of the
detention and the reasons for it bear upon the precise scope of the inquiry. Habeas corpus
proceedings need not resemble a criminal trial, even when the detention is by executive
order. But the writ must be effective. The habeas court must have sufficient authority to
conduct a meaningful review of both the cause for detention and the Executive’s power to
detain.
To determine the necessary scope of habeas corpus review, therefore, we must assess
the CSRT process, the mechanism through which petitioners’ designation as enemy
combatants became final. Whether one characterizes the CSRT process as direct review
of the Executive’s battlefield determination that the detainee is an enemy combatant—as
the parties have and as we do—or as the first step in the collateral review of a battlefield
determination makes no difference in a proper analysis of whether the procedures
Congress put in place are an adequate substitute for habeas corpus. What matters is the
sum total of procedural protections afforded to the detainee at all stages, direct and
collateral.
Petitioners identify what they see as myriad deficiencies in the CSRTs. The most
relevant for our purposes are the constraints upon the detainee’s ability to rebut the factual
basis for the Government’s assertion that he is an enemy combatant. As already noted,
see Part IV–C, supra, at the CSRT stage the detainee has limited means to find or present
evidence to challenge the Government’s case against him. He does not have the
assistance of counsel and may not be aware of the most critical allegations that the
Government relied upon to order his detention. See App. to Pet. for Cert. in No. 06–1196,
at 156, ¶F(8) (noting that the detainee can access only the “unclassified portion of the
Government Information”). The detainee can confront witnesses that testify during the
CSRT proceedings. Id., at 144, ¶g(8). But given that there are in effect no limits on the
admission of hearsay evidence—the only requirement is that the tribunal deem the
evidence “relevant and helpful,” ibid., ¶g(9)—the detainee’s opportunity to question
witnesses is likely to be more theoretical than real.
The Government defends the CSRT process, arguing that it was designed to conform to
the procedures suggested by the plurality in Hamdi. See 542 U. S., at 538. Setting aside
the fact that the relevant language in Hamdi did not garner a majority of the Court, it does
not control the matter at hand. None of the parties in Hamdi argued there had been a
suspension of the writ. Nor could they. The §2241 habeas corpus process remained in
place, id., at 525. Accordingly, the plurality concentrated on whether the Executive had the
authority to detain and, if so, what rights the detainee had under the Due Process Clause.
True, there are places in the Hamdi plurality opinion where it is difficult to tell where its
extrapolation of §2241 ends and its analysis of the petitioner’s Due Process rights begins.
But the Court had no occasion to define the necessary scope of habeas review, for
Suspension Clause purposes, in the context of enemy combatant detentions. The closest
the plurality came to doing so was in discussing whether, in light of separation-of-powers
concerns, §2241 should be construed to forbid the District Court from inquiring beyond the
affidavit Hamdi’s custodian provided in answer to the detainee’s habeas petition. The
plurality answered this question with an emphatic “no.” Id., at 527 (labeling this argument
as “extreme”); id., at 535–536.
Even if we were to assume that the CSRTs satisfy due process standards, it would not
end our inquiry. Habeas corpus is a collateral process that exists, in Justice Holmes’ words,
to “cu[t] through all forms and g[o] to the very tissue of the structure. It comes in from the
outside, not in subordination to the proceedings, and although every form may have been
preserved opens the inquiry whether they have been more than an empty
shell.” Frank v. Mangum, 237 U. S. 309, 346 (1915) (dissenting opinion). Even when the
procedures authorizing detention are structurally sound, the Suspension Clause remains
applicable and the writ relevant. See 2 Chambers, Course of Lectures on English Law
1767–1773, at 6 (“Liberty may be violated either by arbitrary imprisonment without law or
the appearance of law, or by a lawful magistrate for an unlawful reason”). This is so,
as Hayman and Swain make clear, even where the prisoner is detained after a criminal
trial conducted in full accordance with the protections of the Bill of Rights. Were this not the
case, there would have been no reason for the Court to inquire into the adequacy of
substitute habeas procedures in Hayman and Swain. That the prisoners were detained
pursuant to the most rigorous proceedings imaginable, a full criminal trial, would have
been enough to render any habeas substitute acceptable per se.
Although we make no judgment as to whether the CSRTs, as currently constituted,
satisfy due process standards, we agree with petitioners that, even when all the parties
involved in this process act with diligence and in good faith, there is considerable risk of
error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the
words of the former Chief Judge of the Court of Appeals, is “closed and accusatorial.”
See Bismullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring in denial of rehearing en
banc). And given that the consequence of error may be detention of persons for the
duration of hostilities that may last a generation or more, this is a risk too significant to
ignore.
For the writ of habeas corpus, or its substitute, to function as an effective and proper
remedy in this context, the court that conducts the habeas proceeding must have the
means to correct errors that occurred during the CSRT proceedings. This includes some
authority to assess the sufficiency of the Government’s evidence against the detainee. It
also must have the authority to admit and consider relevant exculpatory evidence that was
not introduced during the earlier proceeding. Federal habeas petitioners long have had the
means to supplement the record on review, even in the postconviction habeas setting.
See Townsend v. Sain, 372 U. S. 293, 313 (1963), overruled in part by Keeney v. Tamayo-
Reyes, 504 U. S. 1, 5 (1992). Here that opportunity is constitutionally required.
Consistent with the historic function and province of the writ, habeas corpus review may
be more circumscribed if the underlying detention proceedings are more thorough than
they were here. In two habeas cases involving enemy aliens tried for war crimes, In re
Yamashita, 327 U. S. 1 (1946), and Ex parte Quirin, 317 U. S. 1 (1942), for example, this
Court limited its review to determining whether the Executive had legal authority to try the
petitioners by military commission. See Yamashita, supra, at 8 (“[O]n application for
habeas corpus we are not concerned with the guilt or innocence of the petitioners. We
consider here only the lawful power of the commission to try the petitioner for the offense
charged”); Quirin, supra, at 25 (“We are not here concerned with any question of the guilt
or innocence of petitioners”). Military courts are not courts of record. See Watkins, 3 Pet.,
at 209; Church 513. And the procedures used to try General Yamashita have been sharply
criticized by Members of this Court. See Hamdan, 548 U. S., at 617; Yamashita, supra, at
41–81 (Rutledge, J., dissenting). We need not revisit these cases, however. For on their
own terms, the proceedings in Yamashita and Quirin, like those in Eisentrager, had an
adversarial structure that is lacking here. See Yamashita, supra, at 5 (noting that General
Yamashita was represented by six military lawyers and that “[t]hroughout the
proceedings … defense counsel … demonstrated their professional skill and
resourcefulness and their proper zeal for the defense with which they were
charged”); Quirin, supra, at 23–24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942)
(appointing counsel to represent the German saboteurs).
The extent of the showing required of the Government in these cases is a matter to be
determined. We need not explore it further at this stage. We do hold that when the judicial
power to issue habeas corpus properly is invoked the judicial officer must have adequate
authority to make a determination in light of the relevant law and facts and to formulate and
issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s
release.
C CSRT record. In the parallel litigation, however, the Court of Appeals determined that the
We now consider whether the DTA allows the Court of Appeals to conduct a proceeding
meeting these standards. “[W]e are obligated to construe the statute to avoid
[constitutional] problems” if it is “ ‘fairly possible’ ” to do so. St. Cyr, 533 U. S., at 299–300
(quoting Crowell v. Benson, 285 U. S. 22, 62 (1932)). There are limits to this principle,
however. The canon of constitutional avoidance does not supplant traditional modes of
statutory interpretation. See Clark v. Martinez, 543 U. S. 371, 385 (2005) (“The canon of
constitutional avoidance comes into play only when, after the application of ordinary textual
analysis, the statute is found to be susceptible of more than one construction; and the
canon functions as a means of choosing between them”). We cannot ignore the text and
purpose of a statute in order to save it.
The DTA does not explicitly empower the Court of Appeals to order the applicant in a
DTA review proceeding released should the court find that the standards and procedures
used at his CSRT hearing were insufficient to justify detention. This is troubling. Yet, for
present purposes, we can assume congressional silence permits a constitutionally
required remedy. In that case it would be possible to hold that a remedy of release is
impliedly provided for. The DTA might be read, furthermore, to allow the petitioners to
assert most, if not all, of the legal claims they seek to advance, including their most basic
claim: that the President has no authority under the AUMF to detain them indefinitely.
(Whether the President has such authority turns on whether the AUMF authorizes—and
the Constitution permits—the indefinite detention of “enemy combatants” as the
Department of Defense defines that term. Thus a challenge to the President’s authority to
detain is, in essence, a challenge to the Department’s definition of enemy combatant, a
“standard” used by the CSRTs in petitioners’ cases.) At oral argument, the Solicitor
General urged us to adopt both these constructions, if doing so would allow MCA §7 to
remain intact. See Tr. of Oral Arg. 37, 53.
The absence of a release remedy and specific language allowing AUMF challenges are
not the only constitutional infirmities from which the statute potentially suffers, however.
The more difficult question is whether the DTA permits the Court of Appeals to make
requisite findings of fact. The DTA enables petitioners to request “review” of their CSRT
determination in the Court of Appeals, DTA §1005(e)(2)(B)(i), 119 Stat. 2742; but the
“Scope of Review” provision confines the Court of Appeals’ role to reviewing whether the
CSRT followed the “standards and procedures” issued by the Department of Defense and
assessing whether those “standards and procedures” are lawful. §1005(e)(C), ibid. Among
these standards is “the requirement that the conclusion of the Tribunal be supported by a
preponderance of the evidence … allowing a rebuttable presumption in favor of the
Government’s evidence.” §1005(e)(C)(i), ibid.
Assuming the DTA can be construed to allow the Court of Appeals to review or correct
the CSRT’s factual determinations, as opposed to merely certifying that the tribunal
applied the correct standard of proof, we see no way to construe the statute to allow what
is also constitutionally required in this context: an opportunity for the detainee to present
relevant exculpatory evidence that was not made part of the record in the earlier
proceedings.
On its face the statute allows the Court of Appeals to consider no evidence outside the
DTA allows it to order the production of all “ ‘reasonably available information in the
possession of the U. S. Government bearing on the issue of whether the detainee meets
the criteria to be designated as an enemy combatant,’ ” regardless of whether this
evidence was put before the CSRT. See Bismullah I, 501 F. 3d, at 180. The Government,
see Pet. for Cert. pending in Gates v. Bismullah, No. 07–1054 (hereinafter Bismullah Pet.),
with support from five members of the Court of Appeals, see Bismullah III, 514 F. 3d, at
1299 (Henderson, J., dissenting from denial of rehearing en banc); id., at 1302 (opinion of
Randolph, J.) (same); id., at 1306 (opinion of Brown, J.) (same), disagrees with this
interpretation. For present purposes, however, we can assume that the Court of Appeals
was correct that the DTA allows introduction and consideration of relevant exculpatory
evidence that was “reasonably available” to the Government at the time of the CSRT but
not made part of the record. Even so, the DTA review proceeding falls short of being a
constitutionally adequate substitute, for the detainee still would have no opportunity to
present evidence discovered after the CSRT proceedings concluded.
Under the DTA the Court of Appeals has the power to review CSRT determinations by
assessing the legality of standards and procedures. This implies the power to inquire into
what happened at the CSRT hearing and, perhaps, to remedy certain deficiencies in that
proceeding. But should the Court of Appeals determine that the CSRT followed
appropriate and lawful standards and procedures, it will have reached the limits of its
jurisdiction. There is no language in the DTA that can be construed to allow the Court of
Appeals to admit and consider newly discovered evidence that could not have been made
part of the CSRT record because it was unavailable to either the Government or the
detainee when the CSRT made its findings. This evidence, however, may be critical to the
detainee’s argument that he is not an enemy combatant and there is no cause to detain
him.
This is not a remote hypothetical. One of the petitioners, Mohamed Nechla, requested at
his CSRT hearing that the Government contact his employer. The petitioner claimed the
employer would corroborate Nechla’s contention he had no affiliation with al Qaeda.
Although the CSRT determined this testimony would be relevant, it also found the witness
was not reasonably available to testify at the time of the hearing. Petitioner’s counsel,
however, now represents the witness is available to be heard. See Brief for Boumediene
Petitioners 5. If a detainee can present reasonably available evidence demonstrating there
is no basis for his continued detention, he must have the opportunity to present this
evidence to a habeas corpus court. Even under the Court of Appeals’ generous
construction of the DTA, however, the evidence identified by Nechla would be inadmissible
in a DTA review proceeding. The role of an Article III court in the exercise of its habeas
corpus function cannot be circumscribed in this manner.
By foreclosing consideration of evidence not presented or reasonably available to the
detainee at the CSRT proceedings, the DTA disadvantages the detainee by limiting the
scope of collateral review to a record that may not be accurate or complete. In other
contexts, e.g., in post-trial habeas cases where the prisoner already has had a full and fair
opportunity to develop the factual predicate of his claims, similar limitations on the scope of
habeas review may be appropriate. See Williams v. Taylor, 529 U. S. 420, 436–437 (2000)
(noting that §2254 “does not equate prisoners who exercise diligence in pursuing their
claims with those who do not”). In this context, however, where the underlying detention
proceedings lack the necessary adversarial character, the detainee cannot be held
responsible for all deficiencies in the record.
The Government does not make the alternative argument that the DTA allows for the
introduction of previously unavailable exculpatory evidence on appeal. It does point out,
however, that if a detainee obtains such evidence, he can request that the Deputy
Secretary of Defense convene a new CSRT. See Supp. Brief for Respondents 4.
Whatever the merits of this procedure, it is an insufficient replacement for the factual
review these detainees are entitled to receive through habeas corpus. The Deputy
Secretary’s determination whether to initiate new proceedings is wholly a discretionary one.
See Dept. of Defense, Office for the Administrative Review of the Detention of Enemy
Combatants, Instruction 5421.1, Procedure for Review of “New Evidence” Relating to
Enemy Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction 5421.1) (“The decision to
convene a CSRT to reconsider the basis of the detainee’s [enemy combatant] status in
light of ‘new evidence’ is a matter vested in the unreviewable discretion of the [Deputy
Secretary of Defense]”). And we see no way to construe the DTA to allow a detainee to
challenge the Deputy Secretary’s decision not to open a new CSRT pursuant to Instruction
5421.1. Congress directed the Secretary of Defense to devise procedures for considering
new evidence, see DTA §1005(a)(3), but the detainee has no mechanism for ensuring that
those procedures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742, makes clear that the
Court of Appeals’ jurisdiction is “limited to consideration of … whether the status
determination of the Combatant Status Review Tribunal with regard to such alien was
consistent with the standards and procedures specified by the Secretary of Defense …
and … whether the use of such standards and procedures to make the determination is
consistent with the Constitution and laws of the United States.” DTA
§1005(e)(2)(A), ibid.,further narrows the Court of Appeals’ jurisdiction to reviewing “any
final decision of a Combatant Status Review Tribunal that an alien is properly detained as
an enemy combatant.” The Deputy Secretary’s determination whether to convene a new
CSRT is not a “status determination of the Combatant Status Review Tribunal,” much less
a “final decision” of that body.
We do not imply DTA review would be a constitutionally sufficient replacement for
habeas corpus but for these limitations on the detainee’s ability to present exculpatory
evidence. For even if it were possible, as a textual matter, to read into the statute each of
the necessary procedures we have identified, we could not overlook the cumulative effect
of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge
the President’s legal authority to detain them, contest the CSRT’s findings of fact,
supplement the record on review with exculpatory evidence, and request an order of
release would come close to reinstating the §2241 habeas corpus process Congress
sought to deny them. The language of the statute, read in light of Congress’ reasons for
enacting it, cannot bear this interpretation. Petitioners have met their burden of
establishing that the DTA review process is, on its face, an inadequate substitute for
habeas corpus.
Although we do not hold that an adequate substitute must duplicate §2241 in all respects,
it suffices that the Government has not established that the detainees’ access to the
statutory review provisions at issue is an adequate substitute for the writ of habeas corpus.
MCA §7 thus effects an unconstitutional suspension of the writ. In view of our holding we
need not discuss the reach of the writ with respect to claims of unlawful conditions of
treatment or confinement.
VI
A
 In light of our conclusion that there is no jurisdictional bar to the District Court’s
entertaining petitioners’ claims the question remains whether there are prudential barriers
to habeas corpus review under these circumstances.
The Government argues petitioners must seek review of their CSRT determinations in
the Court of Appeals before they can proceed with their habeas corpus actions in the
District Court. As noted earlier, in other contexts and for prudential reasons this Court has
required exhaustion of alternative remedies before a prisoner can seek federal habeas
relief. Most of these cases were brought by prisoners in state custody, e.g., Ex parte
Royall, 117 U. S. 241, and thus involved federalism concerns that are not relevant here.
But we have extended this rule to require defendants in courts-martial to exhaust their
military appeals before proceeding with a federal habeas corpus action. See Schlesinger,
420 U. S., at 758.
The real risks, the real threats, of terrorist attacks are constant and not likely soon to
abate. The ways to disrupt our life and laws are so many and unforeseen that the Court
should not attempt even some general catalogue of crises that might occur. Certain
principles are apparent, however. Practical considerations and exigent circumstances
inform the definition and reach of the law’s writs, including habeas corpus. The cases and
our tradition reflect this precept.
In cases involving foreign citizens detained abroad by the Executive, it likely would be
both an impractical and unprecedented extension of judicial power to assume that habeas
corpus would be available at the moment the prisoner is taken into custody. If and when
habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be
accorded to reasonable procedures for screening and initial detention under lawful and
proper conditions of confinement and treatment for a reasonable period of time. Domestic
exigencies, furthermore, might also impose such onerous burdens on the Government that
here, too, the Judicial Branch would be required to devise sensible rules for staying
habeas corpus proceedings until the Government can comply with its requirements in a
responsible way. Cf. Ex parte Milligan, 4 Wall., at 127 (“If, in foreign invasion or civil war,
the courts are actually closed, and it is impossible to administer criminal justice according
to law, then, on the theatre of active military operations, where war really prevails, there is
a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the
safety of the army and society; and as no power is left but the military, it is allowed to
govern by martial rule until the laws can have their free course”). Here, as is true with
detainees apprehended abroad, a relevant consideration in determining the courts’ role is
whether there are suitable alternative processes in place to protect against the arbitrary
exercise of governmental power.
The cases before us, however, do not involve detainees who have been held for a short
period of time while awaiting their CSRT determinations. Were that the case, or were it
probable that the Court of Appeals could complete a prompt review of their applications,
the case for requiring temporary abstention or exhaustion of alternative remedies would be
much stronger. These qualifications no longer pertain here. In some of these cases six
years have elapsed without the judicial oversight that habeas corpus or an adequate
substitute demands. And there has been no showing that the Executive faces such
onerous burdens that it cannot respond to habeas corpus actions. To require these
detainees to complete DTA review before proceeding with their habeas corpus actions
would be to require additional months, if not years, of delay. The first DTA review
applications were filed over a year ago, but no decisions on the merits have been issued.
While some delay in fashioning new procedures is unavoidable, the costs of delay can no
longer be borne by those who are held in custody. The detainees in these cases are
entitled to a prompt habeas corpus hearing.
Our decision today holds only that the petitioners before us are entitled to seek the writ;
that the DTA review procedures are an inadequate substitute for habeas corpus; and that
the petitioners in these cases need not exhaust the review procedures in the Court of
Appeals before proceeding with their habeas actions in the District Court. The only law we
identify as unconstitutional is MCA §7, 28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly,
both the DTA and the CSRT process remain intact. Our holding with regard to exhaustion
should not be read to imply that a habeas court should intervene the moment an enemy
combatant steps foot in a territory where the writ runs. The Executive is entitled to a
reasonable period of time to determine a detainee’s status before a court entertains that
detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the
President set up to deal with these issues. Except in cases of undue delay, federal courts
should refrain from entertaining an enemy combatant’s habeas corpus petition at least until
after the Department, acting via the CSRT, has had a chance to review his status.
B
Although we hold that the DTA is not an adequate and effective substitute for habeas
corpus, it does not follow that a habeas corpus court may disregard the dangers the
detention in these cases was intended to prevent. Felker, Swain, and Hayman stand for
the proposition that the Suspension Clause does not resist innovation in the field of habeas
corpus. Certain accommodations can be made to reduce the burden habeas corpus
proceedings will place on the military without impermissibly diluting the protections of the
writ.
In the DTA Congress sought to consolidate review of petitioners’ claims in the Court of
Appeals. Channeling future cases to one district court would no doubt reduce
administrative burdens on the Government. This is a legitimate objective that might be
advanced even without an amendment to §2241. If, in a future case, a detainee files a
habeas petition in another judicial district in which a proper respondent can be served,
see Rumsfeld v. Padilla, 542 U. S. 426, 435–436 (2004), the Government can move for
change of venue to the court that will hear these petitioners’ cases, the United States
District Court for the District of Columbia. See 28 U. S. C. §1404(a); Braden v. 30th
Judicial Circuit Court of Ky., 410 U. S. 484, 499, n. 15 (1973).
Another of Congress’ reasons for vesting exclusive jurisdiction in the Court of Appeals,
perhaps, was to avoid the widespread dissemination of classified information. The
Government has raised similar concerns here and elsewhere. See Brief for Respondents
55–56; Bismullah Pet. 30. We make no attempt to anticipate all of the evidentiary and
access-to-counsel issues that will arise during the course of the detainees’ habeas corpus
proceedings. We recognize, however, that the Government has a legitimate interest in
protecting sources and methods of intelligence gathering; and we expect that the District
Court will use its discretion to accommodate this interest to the greatest extent possible.
Cf. United States v. Reynolds, 345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege
in a civil damages case where “there is a reasonable danger that compulsion of the
evidence will expose military matters which, in the interest of national security, should not
be divulged”).
These and the other remaining questions are within the expertise and competence of the
District Court to address in the first instance.
It bears repeating that our opinion does not address the content of the law that governs
petitioners’ detention. That is a matter yet to be determined. We hold that petitioners may
invoke the fundamental procedural protections of habeas corpus. The laws and
Constitution are designed to survive, and remain in force, in extraordinary times. Liberty
and security can be reconciled; and in our system they are reconciled within the framework
of the law. The Framers decided that habeas corpus, a right of first importance, must be a
part of that framework, a part of that law.

* * *
The determination by the Court of Appeals that the Suspension Clause and its
protections are inapplicable to petitioners was in error. The judgment of the Court of
In considering both the procedural and substantive standards used to impose detention Appeals is reversed. The cases are remanded to the Court of Appeals with instructions
to prevent acts of terrorism, proper deference must be accorded to the political branches. that it remand the cases to the District Court for proceedings consistent with this opinion.
See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936). Unlike the
President and some designated Members of Congress, neither the Members of this Court
nor most federal judges begin the day with briefings that may describe new and serious It is so ordered.
threats to our Nation and its people. The law must accord the Executive substantial
authority to apprehend and detain those who pose a real danger to our security.

Officials charged with daily operational responsibility for our security may consider a
judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be
far removed from the Nation’s present, urgent concerns. Established legal doctrine,
however, must be consulted for its teaching. Remote in time it may be; irrelevant to the
present it is not. Security depends upon a sophisticated intelligence apparatus and the
ability of our Armed Forces to act and to interdict. There are further considerations,
however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these
are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by
adherence to the separation of powers. It is from these principles that the judicial authority
to consider petitions for habeas corpus relief derives.

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the
contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the
Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of
judicial power are as legitimate or as necessary as the responsibility to hear challenges to
the authority of the Executive to imprison a person. Some of these petitioners have been in
custody for six years with no definitive judicial determination as to the legality of their
detention. Their access to the writ is a necessity to determine the lawfulness of their status,
even if, in the end, they do not obtain the relief they seek.

Because our Nation’s past military conflicts have been of limited duration, it has been
possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism
continues to pose dangerous threats to us for years to come, the Court might not have this
luxury. This result is not inevitable, however. The political branches, consistent with their
independent obligations to interpret and uphold the Constitution, can engage in a genuine
debate about how best to preserve constitutional values while protecting the Nation from Forum Non Conveniens
terrorism. Cf. Hamdan, 548 U. S., at 636 (Breyer, J., concurring) (“[J]udicial insistence
upon that consultation does not weaken our Nation’s ability to deal with danger. To the
contrary, that insistence strengthens the Nation’s ability to determine—through democratic SECOND DIVISION
means—how best to do so”).
G.R. No. 198587, January 14, 2015
SAUDI ARABIAN AIRLINES (SAUDIA) AND BRENDA J. BETIA, Petitioners, v. MA.
JOPETTE M. REBESENCIO, MONTASSAH B. SACAR-ADIONG, ROUEN RUTH A.
CRISTOBAL AND LORAINE S. SCHNEIDER-CRUZ, Respondents.
DECISION
LEONEN, J.:
All Filipinos are entitled to the protection of the rights guaranteed in the Constitution.
This is a Petition for Review on Certiorari with application for the issuance of a temporary
restraining order and/or writ of preliminary injunction under Rule 45 of the 1997 Rules of
Civil Procedure praying that judgment be rendered reversing and setting aside the June 16,
2011 Decision1 and September 13, 2011 Resolution2 of the Court of Appeals in CA-G.R.
SP. No. 113006.
Petitioner Saudi Arabian Airlines (Saudia) is a foreign corporation established and existing
under the laws of Jeddah, Kingdom of Saudi Arabia. It has a Philippine office located at
4/F, Metro House Building, Sen. Gil J. Puyat Avenue, Makati City. 3 In its Petition filed with
this court, Saudia identified itself as follows:
1. Petitioner SAUDIA is a foreign corporation established and existing
under the Royal Decree No. M/24 of 18.07.1385H (10.02.1962G) in
Jeddah, Kingdom of Saudi Arabia ("KSA"). Its Philippine Office is
located at 4/F Metro House Building, Sen, Gil J. Puyat Avenue, Makati
City (Philippine Office). It may be served with orders of this Honorable
Court through undersigned counsel at 4th and 6th Floors, Citibank
Center Bldg., 8741 Paseo de Roxas, Makati City. 4 (Emphasis supplied)
Respondents (complainants before the Labor Arbiter) were recruited and hired by Saudia
as Temporary Flight Attendants with the accreditation and approval of the Philippine
Overseas Employment Administration.5 After undergoing seminars required by the
Philippine Overseas Employment Administration for deployment overseas, as well as
training modules offered by Saudia (e.g., initial flight attendant/training course and
transition training), and after working as Temporary Flight Attendants, respondents
became Permanent Flight Attendants. They then entered into Cabin Attendant contracts
with Saudia: Ma. Jopette M. Rebesencio (Ma. Jopette) on May 16, 1990; 6 Montassah B.
Sacar-Adiong (Montassah) and Rouen Ruth A. Cristobal (Rouen Ruth) on May 22,
1993;7 and Loraine Schneider-Cruz (Loraine) on August 27, 1995.8
Respondents continued their employment with Saudia until they were separated from
service on various dates in 2006.9
Respondents contended that the termination of their employment was illegal. They alleged
that the termination was made solely because they were pregnant.10
As respondents alleged, they had informed Saudia of their respective pregnancies and had
gone through the necessary procedures to process their maternity leaves. Initially, Saudia
had given its approval but later on informed respondents that its management in Jeddah,
Saudi Arabia had disapproved their maternity leaves. In addition, it required respondents
to file their resignation letters.11
Respondents were told that if they did not resign, Saudia would terminate them all the
same. The threat of termination entailed the loss of benefits, such as separation pay and
ticket discount entitlements.12
Specifically, Ma. Jopette received a call on October 16, 2006 from Saudia's Base Manager,
Abdulmalik Saddik (Abdulmalik).13 Montassah was informed personally by Abdulmalik and
a certain Faisal Hussein on October 20, 2006 after being required to report to the office
one (1) month into her maternity leave.14Rouen Ruth was also personally informed by
Abdulmalik on October 17, 2006 after being required to report to the office by her Group
Supervisor.15 Loraine received a call on October 12, 2006 from her Group Supervisor,
Dakila Salvador.16
Saudia anchored its disapproval of respondents' maternity leaves and demand for their
resignation on its "Unified Employment Contract for Female Cabin Attendants" (Unified
Contract).17 Under the Unified Contract, the employment of a Flight Attendant who
becomes pregnant is rendered void. It provides:
(H) Due to the essential nature of the Air Hostess functions to be
physically fit on board to provide various services required in normal or
emergency cases on both domestic/international flights beside her role
in maintaining continuous safety and security of passengers, and
since she will not be able to maintain the required medical fitness while
at work in case of pregnancy, accordingly, if the Air Hostess becomes
pregnant at any time during the term of this contract, this shall
render her employment contract as void and she will be
terminated due to lack of medical fitness.18 (Emphasis supplied)
In their Comment on the present Petition, 19 respondents emphasized that the Unified
Contract took effect on September 23, 2006 (the first day of Ramadan), 20 well after they
had filed and had their maternity leaves approved. Ma. Jopette filed her maternity leave
application on September 5, 2006.21 Montassah filed her maternity leave application on
August 29, 2006, and its approval was already indicated in Saudia's computer system by
August 30, 2006.22 Rouen Ruth filed her maternity leave application on September 13,
2006,23 and Loraine filed her maternity leave application on August 22, 2006. 24
Rather than comply and tender resignation letters, respondents filed separate appeal
letters that were all rejected.25
Despite these initial rejections, respondents each received calls on the morning of
November 6, 2006 from Saudia's office secretary informing them that their maternity
leaves had been approved. Saudia, however, was quick to renege on its approval. On the
evening of November 6, 2006, respondents again received calls informing them that it had
received notification from Jeddah, Saudi Arabia that their maternity leaves had been
disapproved.26
Faced with the dilemma of resigning or totally losing their benefits, respondents executed
handwritten resignation letters. In Montassah's and Rouen Ruth's cases, their resignations
were executed on Saudia's blank letterheads that Saudia had provided. These letterheads
already had the word "RESIGNATION" typed on the subject portions of their headings
when these were handed to respondents.27
On November 8, 2007, respondents filed a Complaint against Saudia and its officers for
illegal dismissal and for underpayment of salary, overtime pay, premium pay for holiday,
rest day, premium, service incentive leave pay, 13th month pay, separation pay, night shift
differentials, medical expense reimbursements, retirement benefits, illegal deduction, lay-
over expense and allowances, moral and exemplary damages, and attorney's fees. 28 The
case was initially assigned to Labor Arbiter Hermino V. Suelo and docketed as NLRC NCR
Case No. 00-11-12342-07.
Saudia assailed the jurisdiction of the Labor Arbiter. 29 It claimed that all the determining
points of contact referred to foreign law and insisted that the Complaint ought to be
dismissed on the ground of forum non conveniens.30 It added that respondents had no
cause of action as they resigned voluntarily. 31
On December 12, 2008, Executive Labor Arbiter Fatima Jambaro-Franco rendered the
Decision32dismissing respondents' Complaint. The dispositive portion of this Decision
reads:
WHEREFORE, premises' considered, judgment is hereby
rendered DISMISSING the instant complaint for lack of
jurisdiction/merit.33cralawlawlibrary
On respondents' appeal, the National Labor Relations Commission's Sixth Division
reversed the ruling of Executive Labor Arbiter Jambaro-Franco. It explained that
"[considering that complainants-appellants are OFWs, the Labor Arbiters and the NLRC
has [sic] jurisdiction to hear and decide their complaint for illegal termination." 34 On the
matter of forum non conveniens, it noted that there were no special circumstances that
warranted its abstention from exercising jurisdiction. 35 On the issue of whether
respondents were validly dismissed, it held that there was nothing on record to support
Saudia's claim that respondents resigned voluntarily.
The dispositive portion of the November 19, 2009 National Labor Relations Commission
Decision36reads:
WHEREFORE, premises considered, judgment is hereby rendered
finding the appeal impressed with merit. The respondents-appellees are
hereby directed to pay complainants-appellants the aggregate amount
of SR614,001.24 corresponding to their backwages and separation pay
plus ten (10%) percent thereof as attorney's fees. The decision of the
Labor Arbiter dated December 12, 2008 is hereby VACATED and SET
ASIDE. Attached is the computation prepared by this Commission and
made an integral part of this Decision.37cralawlawlibrary
In the Resolution dated February 11, 2010,38 the National Labor Relations Commission
denied petitioners' Motion for Reconsideration.
In the June 16, 2011 Decision,39 the Court of Appeals denied petitioners' Rule 65 Petition
and modified the Decision of the National Labor Relations Commission with respect to the
award of separation pay and backwages.
The dispositive portion of the Court of Appeals Decision reads:
WHEREFORE, the instant petition is hereby DENIED. The Decision
dated November 19, 2009 issued by public respondent, Sixth Division
of the National Labor Relations Commission - National Capital Region
is MODIFIED only insofar as the computation of the award of
separation pay and backwages. For greater clarity, petitioners are
ordered to pay private respondents separation pay which shall be
computed from private respondents' first day of employment up to the
finality of this decision, at the rate of one month per year of service and
backwages which shall be computed from the date the private
respondents were illegally terminated until finality of this decision.
Consequently, the ten percent (10%) attorney's fees shall be based on
the total amount of the award. The assailed Decision is affirmed in all
other respects.
The labor arbiter is hereby DIRECTED to make a recomputation based
on the foregoing.40cralawlawlibrary
In the Resolution dated September 13, 2011, 41 the Court of Appeals denied petitioners'
Motion for Reconsideration.
Hence, this Appeal was filed.
The issues for resolution are the following:
First, whether the Labor Arbiter and the National Labor Relations Commission may
exercise jurisdiction over Saudi Arabian Airlines and apply Philippine law in adjudicating
the present dispute;
Second, whether respondents' voluntarily resigned or were illegally terminated; and
Lastly, whether Brenda J. Betia may be held personally liable along with Saudi Arabian
Airlines.
I
Summons were validly served on Saudia and jurisdiction over it validly acquired.
There is no doubt that the pleadings and summons were served on Saudia through its
counsel.42 Saudia, however, claims that the Labor Arbiter and the National Labor Relations
Commission had no jurisdiction over it because summons were never served on it but on
"Saudia Manila."43 Referring to itself as "Saudia Jeddah," it claims that "Saudia Jeddah"
and not "Saudia Manila" was the employer of respondents because:
First, "Saudia Manila" was never a party to the Cabin Attendant contracts entered into by
respondents;
Second, it was "Saudia Jeddah" that provided the funds to pay for respondents' salaries
and benefits; and
Lastly, it was with "Saudia Jeddah" that respondents filed their resignations. 44

Saudia posits that respondents' Complaint was brought against the wrong party because
"Saudia Manila," upon which summons was served, was never the employer of
respondents.45
Saudia is vainly splitting hairs in its effort to absolve itself of liability. Other than its bare
allegation, there is no basis for concluding that "Saudia Jeddah" is distinct from "Saudia
Manila."
What is clear is Saudia's statement in its own Petition that what it has is a "Philippine
Office . . . located at 4/F Metro House Building, Sen. Gil J. Puyat Avenue, Makati
City."46 Even in the position paper that Saudia submitted to the Labor Arbiter,47 what
Saudia now refers to as "Saudia Jeddah" was then only referred to as "Saudia Head Office
at Jeddah, KSA,"48 while what Saudia now refers to as "Saudia Manila" was then only
referred to as "Saudia's office in Manila."49
By its own admission, Saudia, while a foreign corporation, has a Philippine office.
Section 3(d) of Republic Act No.. 7042, otherwise known as the Foreign Investments Act of
1991, provides the following:
The phrase "doing business" shall include . . . opening offices,
whether called "liaison" offices or branches; . . . and any other act
or acts that imply a continuity of commercial dealings or arrangements
and contemplate to that extent the performance of acts or works, or the
exercise of some of the functions normally incident to, and in
progressive prosecution of commercial gain or of the purpose and
object of the business organization. (Emphasis supplied)
A plain application of Section 3(d) of the Foreign Investments Act leads to no other
conclusion than that Saudia is a foreign corporation doing business in the Philippines. As
such, Saudia may be sued in the Philippines and is subject to the jurisdiction of Philippine
tribunals.
Moreover, since there is no real distinction between "Saudia Jeddah" and "Saudia Manila"
— the latter being nothing more than Saudia's local office — service of summons to
Saudia's office in Manila sufficed to vest jurisdiction over Saudia's person in Philippine
tribunals.
II
Saudia asserts that Philippine courts and/or tribunals are not in a position to make an
intelligent decision as to the law and the facts. This is because respondents' Cabin
Attendant contracts require the application of the laws of Saudi Arabia, rather than those of
the Philippines.50 It claims that the difficulty of ascertaining foreign law calls into operation
the principle of forum non conveniens, thereby rendering improper the exercise of
jurisdiction by Philippine tribunals. 51
A choice of law governing the validity of contracts or the interpretation of its provisions
dees not necessarily imply forum non conveniens. Choice of law and forum non
conveniens are entirely different matters.
Choice of law provisions are an offshoot of the fundamental principle of autonomy of
contracts. Article 1306 of the Civil Code firmly ensconces this:
Article 1306. The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, public order, or
public policy.
In contrast, forum non conveniens is a device akin to the rule against forum shopping. It is
designed to frustrate illicit means for securing advantages and vexing litigants that would
otherwise be possible if the venue of litigation (or dispute resolution) were left entirely to
the whim of either party.
Contractual choice of law provisions factor into transnational litigation and dispute
resolution in one of or in a combination of four ways: (1) procedures for settling disputes,
e.g., arbitration; (2) forum, i.e., venue; (3) governing law; and (4) basis for
interpretation. Forum non conveniens relates to, but is not subsumed by, the second of
these.
Likewise, contractual choice of law is not determinative of jurisdiction. Stipulating on the
laws of a given jurisdiction as the governing law of a contract does not preclude the
exercise of jurisdiction by tribunals elsewhere. The reverse is equally true: The assumption
of jurisdiction by tribunals does not ipso factomean that it cannot apply and rule on the
basis of the parties' stipulation. In Hasegawa v. Kitamura:52ChanRoblesVirtualawlibrary
Analytically, jurisdiction and choice of law are two distinct concepts.
Jurisdiction considers whether it is fair to cause a defendant to travel to
this state; choice of law asks the further question whether the
application of a substantive law V'hich will determine the merits of the
case is fair to both parties. The power to exercise jurisdiction does not
automatically give a state constitutional authority to apply forum law.
While jurisdiction and the choice of the lex fori will often, coincide, the
"minimum contacts" for one do not always provide the necessary
"significant contacts" for the other. The question of whether the law of a
state can be applied to a transaction is different from the question of
whether the courts of that state have jurisdiction to enter a
judgment.53cralawlawlibrary
As various dealings, commercial or otherwise, are facilitated by the progressive ease of
communication and travel, persons from various jurisdictions find themselves transacting
with each other. Contracts involving foreign elements are, however, nothing new. Conflict
of laws situations precipitated by disputes and litigation anchored on these contracts are
not totally novel.
Transnational transactions entail differing laws on the requirements Q for the validity of the
formalities and substantive provisions of contracts and their interpretation. These
transactions inevitably lend themselves to the possibility of various fora for litigation and
dispute resolution. As observed by an eminent expert on transnational law:
 The more jurisdictions having an interest in, or merely even a point of
contact with, a transaction or relationship, the greater the number of
potential fora for the resolution of disputes arising out of or related to
that transaction or relationship. In a world of increased mobility, where
business and personal transactions transcend national boundaries, the
jurisdiction of a number of different fora may easily be invoked in a
single or a set of related disputes.54cralawlawlibrary
Philippine law is definite as to what governs the formal or extrinsic validity of contracts. The
first paragraph of Article 17 of the Civil Code provides that "[t]he forms and solemnities of
contracts . . . shall be governed by the laws of the country in which they are
executed"55 (i.e., lex loci celebrationis).
In contrast, there is no statutorily established mode of settling conflict of laws situations on
matters pertaining to substantive content of contracts. It has been noted that three (3)
modes have emerged: (1) lex loci contractus or the law of the place of the making; (2) lex
loci solutionis or the law of the place of performance; and (3) lex loci intentionis or the law
intended by the parties.56
Given Saudia's assertions, of particular relevance to resolving the present dispute is lex
loci intentionis.
An author observed that Spanish jurists and commentators "favor lex loci
intentionis."57 These jurists and commentators proceed from the Civil Code of Spain, which,
like our Civil Code, is silent on what governs the intrinsic validity of contracts, and the
same civil law traditions from which we draw ours.
In this jurisdiction, this court, in Philippine Export and Foreign Loan Guarantee v. V.P.
Eusebio Construction, Inc.,58 manifested preference for allowing the parties to select the
law applicable to their contract":
No conflicts rule on essential validity of contracts is expressly provided
for in our laws. The rule followed by most legal systems, however, is
that the intrinsic validity of a contract must be governed by the lex
contractus or "proper law of the contract." This is the law voluntarily
agreed upon by the parties (the lex loci voluntatis) or the law intended
by them either expressly or implicitly (the lex loci intentionis). The law
selected may be implied from such factors as substantial connection
with the transaction, or the nationality or domicile of the parties.
Philippine courts would do well to adopt the first and most basic rule in
most legal systems, namely, to allow the parties to select the law
applicable to their contract, subject to the limitation that it is not against
the law, morals, or public policy of the forum and that the chosen law
must bear a substantive relationship to the transaction.59 (Emphasis in
the original)
Saudia asserts that stipulations set in the Cabin Attendant contracts require the application
of the laws of Saudi Arabia. It insists that the need to comply with these stipulations calls
into operation the doctrine of forum non conveniens and, in turn, makes it necessary for
Philippine tribunals to refrain from exercising jurisdiction.
As mentioned, contractual choice of laws factors into transnational litigation in any or a
combination of four (4) ways. Moreover, forum non conveniens relates to one of these:
choosing between multiple possible fora.
Nevertheless, the possibility of parallel litigation in multiple fora — along with the host of
difficulties it poses — is not unique to transnational litigation. It is a difficulty that similarly
arises in disputes well within the bounds of a singe jurisdiction.
When parallel litigation arises strictly within the context of a single jurisdiction, such rules
as those on forum shopping, litis pendentia, and res judicata come into operation. Thus, in
the Philippines, the 1997 Rules on Civil Procedure provide for willful and deliberate forum
shopping as a ground not only for summary dismissal with prejudice but also for citing
parties and counsels in direct contempt, as well as for the imposition of administrative
sanctions.60 Likewise, the same rules expressly provide that a party may seek the
dismissal of a Complaint or another pleading asserting a claim on the ground "[t]hat there
is another action pending between the same parties for the same cause," i.e., litis
pendentia, or "[t]hat the cause of action is barred by a prior judgment," 61 i.e., res judicata.
Forum non conveniens, like the rules of forum shopping, litis pendentia, and res judicata, is
a means of addressing the problem of parallel litigation. While the rules of forum
shopping, litis pendentia, and res judicata are designed to address the problem of parallel
litigation within a single jurisdiction, forum non conveniens is a means devised to address
parallel litigation arising in multiple jurisdictions.
Forum non conveniens literally translates to "the forum is inconvenient." 62 It is a concept in
private international law and was devised to combat the "less than honorable" reasons and
excuses that litigants use to secure procedural advantages, annoy and harass defendants,
avoid overcrowded dockets, and select a "friendlier" venue. 63 Thus, the doctrine of forum
non conveniens addresses the same rationale that the rule against forum shopping does,
albeit on a multijurisdictional scale.
Forum non conveniens, like res judicata,64 is a concept originating in common
law.65 However, unlike the rule on res judicata, as well as those on litis pendentia and
forum shopping, forum non conveniens finds no textual anchor, whether in statute or in
procedural rules, in our civil law system. Nevertheless, jurisprudence has applied forum
non conveniens as basis for a court to decline its exercise of jurisdiction. 66
Forum non conveniens is soundly applied not only to address parallel litigation and
undermine a litigant's capacity to vex and secure undue advantages by engaging in forum
shopping on an international scale. It is also grounded on principles of comity and judicial
efficiency.
Consistent with the principle of comity, a tribunal's desistance in exercising jurisdiction on
account of forum non conveniens is a deferential gesture to the tribunals of another
sovereign. It is a measure that prevents the former's having to interfere in affairs which are
better and more competently addressed by the latter. Further, forum non
conveniens entails a recognition not only that tribunals elsewhere are better suited to rule
on and resolve a controversy, but also, that these tribunals are better positioned to enforce
judgments and, ultimately, to dispense justice. Forum non conveniens prevents the
embarrassment of an awkward situation where a tribunal is rendered incompetent in the
face of the greater capability — both analytical and practical — of a tribunal in another
jurisdiction.
The wisdom of avoiding conflicting and unenforceable judgments is as much a matter of
efficiency and economy as it is a matter of international courtesy. A court would effectively
be neutering itself if it insists on adjudicating a controversy when it knows full well that it is
in no position to enforce its judgment. Doing so is not only an exercise in futility; it is an act
of frivolity. It clogs the dockets of a.tribunal and leaves it to waste its efforts on affairs,
which, given transnational exigencies, will be reduced to mere academic, if not trivial,
exercises.
Accordingly, under the doctrine of forum non conveniens, "a court, in conflicts of law
cases, may refuse impositions on its jurisdiction where it is not the most 'convenient' or
available forum and the parties are not precluded from seeking remedies
elsewhere."67 In Puyat v. Zabarte,68 this court recognized the following situations as among
those that may warrant a court's desistance from exercising jurisdiction:
In Bank of America, NT&SA, Bank of America International, Ltd. v. Court of Appeals,70 this
court underscored that a Philippine court may properly assume jurisdiction over a case if it
chooses to do so to the extent: "(1) that the Philippine Court is one to which the parties
may conveniently resort to; (2) that the Philippine Court is in a position to make an
intelligent decision as to the law and the facts; and (3) that the Philippine Court has or is
likely to have power to enforce its decision."71
The use of the word "may" (i.e., "may refuse impositions on its jurisdiction"72) in the
decisions shows that the matter of jurisdiction rests on the sound discretion of a court.
Neither the mere invocation of forum non conveniens nor the averment of foreign elements
operates to automatically divest a court of jurisdiction. Rather, a court should renounce
jurisdiction only "after 'vital facts are established, to determine whether special
circumstances' require the court's desistance."73 As the propriety of applying forum non
conveniens is contingent on a factual determination, it is, therefore, a matter of defense.74
The second sentence of Rule 9, Section 1 of the 1997 Rules of Civil Procedure is
exclusive in its recital of the grounds for dismissal that are exempt from the omnibus
motion rule: (1) lack of jurisdiction over the subject matter; (2) litis pendentia; (3) res
judicata; and (4) prescription. Moreover, dismissal on account offorum non conveniens is a
fundamentally discretionary matter. It is, therefore, not a matter for a defendant to foist
upon the court at his or her own convenience; rather, it must be pleaded at the earliest
possible opportunity.
On the matter of pleading forum non conveniens, we state the rule, thus: Forum non
conveniens must not only be clearly pleaded as a ground for dismissal; it must be pleaded
as such at the earliest possible opportunity. Otherwise, it shall be deemed waived.
This court notes that in Hasegawa,76 this court stated that forum non conveniens is not a
ground for a motion to dismiss. The factual ambience of this case however does not
squarely raise the viability of this doctrine. Until the opportunity comes to review the use of
motions to dismiss for parallel litigation, Hasegawa remains existing doctrine.
Consistent with forum non conveniens as fundamentally a factual matter, it is imperative
that it proceed from & factually established basis. It would be improper to dismiss an action
pursuant to forum non conveniens based merely on a perceived, likely, or hypothetical
multiplicity of fora. Thus, a defendant must also plead and show that a prior suit has, in fact,
been brought in another jurisdiction.
The existence of a prior suit makes real the vexation engendered by duplicitous litigation,
the embarrassment of intruding into the affairs of another sovereign, and the squandering
of judicial efforts in resolving a dispute already lodged and better resolved elsewhere. As
has been noted:
A case will not be stayed o dismissed on [forum] non
conveniens grounds unless the plaintiff is shown to have an available
alternative forum elsewhere. On this, the moving party bears the
burden of proof.
A number of factors affect the assessment of an alternative forum's
adequacy. The statute of limitations abroad may have run, of the
foreign court may lack either subject matter or personal jurisdiction over
The belief that the matter can be better tried and decided elsewhere, either because the main
1) aspects of the case transpired in a foreign jurisdiction or the material witnesses have their
residence there;
The belief that the non-resident plaintiff sought the forum[,] a practice known as forum
2)
shopping[,] merely to secure procedural advantages or to convey or harass the defendant;
The unwillingness to extend local judicial facilities to non residents or aliens when the docket
3)
may already be overcrowded;
The inadequacy of the local judicial machinery for effectuating the right sought to be
4)
maintained; and
5) The difficulty of ascertaining foreign law.69
the defendant. . . . Occasionally, doubts will be raised as to the integrity
or impartiality of the foreign court (based, for example, on suspicions of
corruption or bias in favor of local nationals), as to the fairness of its
judicial procedures, or as to is operational efficiency (due, for example,
to lack of resources, congestion and delay, or interfering circumstances
such as a civil unrest). In one noted case, [it was found] that delays of
'up to a quarter of a century' rendered the foreign forum... inadequate
for these purposes.77cralawlawlibrary
We deem it more appropriate and in the greater interest of prudence that a defendant not
only allege supposed dangerous tendencies in litigating in this jurisdiction; the defendant
must also show that such danger is real and present in that litigation or dispute resolution
has commenced in another jurisdiction and that a foreign tribunal has chosen to exercise
jurisdiction.
III
Forum non conveniens finds no application and does not operate to divest Philippine
tribunals of jurisdiction and to require the application of foreign law.
Saudia invokes forum non conveniens to supposedly effectuate the stipulations of the
Cabin Attendant contracts that require the application of the laws of Saudi Arabia.
Forum non conveniens relates to forum, not to the choice of governing law. Thai forum non
conveniensmay ultimately result in the application of foreign law is merely an incident of its
application. In this strict sense, forum non conveniens is not applicable. It is not the
primarily pivotal consideration in this case.
In any case, even a further consideration of the applicability of forum non conveniens on
the incidental matter of the law governing respondents' relation with Saudia leads to the
conclusion that it is improper for Philippine tribunals to divest themselves of jurisdiction.
Any evaluation of the propriety of contracting parties' choice of a forum and'its incidents
must grapple with two (2) considerations: first, the availability and adequacy of recourse to
a foreign tribunal; and second, the question of where, as between the forum court and a
foreign court, the balance of interests inhering in a dispute weighs more heavily.
The first is a pragmatic matter. It relates to the viability of ceding jurisdiction to a foreign
tribunal and can be resolved by juxtaposing the competencies and practical circumstances
of the tribunals in alternative fora. Exigencies, like the statute of limitations, capacity to
enforce orders and judgments, access to records, requirements for the acquisition of
jurisdiction, and even questions relating to the integrity of foreign courts, may render
undesirable or even totally unfeasible recourse to a foreign court. As mentioned, we
consider it in the greater interest of prudence that a defendant show, in pleading forum non
conveniens, that litigation has commenced in another jurisdiction and that a foieign tribunal
has, in fact, chosen to exercise jurisdiction.
Two (2) factors weigh into a court's appraisal of the balance of interests inhering in a
dispute: first, the vinculum which the parties and their relation have to a given jurisdiction;
and second, the public interest that must animate a tribunal, in its capacity as an agent of
the sovereign, in choosing to assume or decline jurisdiction. The first is more concerned
with the parties, their personal circumstances, and private interests; the second concerns
itself with the state and the greater social order.
In considering the vinculum, a court must look into the preponderance of linkages which
the parties and their transaction may have to either jurisdiction. In this respect, factors,
such as the parties' respective nationalities and places of negotiation, execution,
performance, engagement or deployment, come into play.
In considering public interest, a court proceeds with a consciousness that it is an organ of
the state. It must, thus, determine if the interests of the sovereign (which acts through it)
are outweighed by those of the alternative jurisdiction. In this respect, the court delves into
a consideration of public policy. Should it find that public interest weighs more heavily in
favor of its assumption of jurisdiction, it should proceed in adjudicating the dispute, any
doubt or .contrary view arising from the preponderance of linkages notwithstanding.
Our law on contracts recognizes the validity of contractual choice of law provisions. Where
such provisions exist, Philippine tribunals, acting as the forum court, generally defer to the
parties' articulated choice.
This is consistent with the fundamental principle of autonomy of contracts. Article 1306 of
the Civ:l Code expressly provides that "[t]he contracting parties may establish 'such
stipulations, clauses, terms and conditions as they may deem convenient." 78 Nevertheless,
while a Philippine tribunal (acting as the forum court) is called upon to respect the parties'
choice of governing law, such respect must not be so permissive as to lose sight of
considerations of law, morals, good customs, public order, or public policy that underlie the
contract central to the controversy.
Specifically with respect to public policy, in Pakistan International Airlines Corporation v.
Ople,79 this court explained that:
counter-balancing the principle of autonomy of contracting parties is the
equally general rule that provisions of applicable law,
especially provisions relating to matters affected with public policy, are
deemed written inta the contract. Put a little differently, the governing
principle is that parties may not contract away applicable provisions of
law especially peremptory provisions dealing with matters heavily
impressed with public interest.80(Emphasis supplied)
Article II, Section 14 of the 1987 Constitution provides that "[t]he State ... shall ensure the
fundamental equality before the law of women and men." Contrasted with Article II, Section
1 of the 1987 Constitution's statement that "[n]o person shall ... be denied the equal
protection of the laws," Article II, Section 14 exhorts the State to "ensure." This does not
only mean that the Philippines shall not countenance nor lend legal recognition and
approbation to measures that discriminate on the basis of one's being male or female. It
imposes an obligation to actively engage in securing the fundamental equality of men and
women.
The Convention on the Elimination of all Forms of Discrimination against Women
(CEDAW), signed and ratified by the Philippines on July 15, 1980, and on August 5, 1981,
respectively,81 is part of the law of the land. In view of the widespread signing and
ratification of, as well as adherence (in practice) to it by states, it may even be said that
many provisions of the CEDAW may have become customary international law. The
CEDAW gives effect to the Constitution's policy statement in Article II, Section 14. Article I
of the CEDAW defines "discrimination against women" as:
any distinction, exclusion or restriction made on the basis of sex which
has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status, on
a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or
any other field.82cralawlawlibrary
The constitutional exhortation to ensure fundamental equality, as illumined by its enabling
law, the CEDAW, must inform and animate all the actions of all personalities acting on
behalf of the State. It is, therefore, the bounden duty of this court, in rendering judgment on
the disputes brought before it, to ensure that no discrimination is heaped upon women on
the mere basis of their being women. This is a point so basic and central that all our
discussions and pronouncements — regardless of whatever averments there may be of
foreign law — must proceed from this premise.
So informed and animated, we emphasize the glaringly discriminatory nature of Saudia's
policy. As argued by respondents, Saudia's policy entails the termination of employment of
flight attendants who become pregnant. At the risk of stating the obvious, pregnancy is an
occurrence that pertains specifically to women. Saudia's policy excludes from and restricts
employment on the basis of no other consideration but sex.
We do not lose sight of the reality that pregnancy does present physical limitations that
may render difficult the performance of functions associated with being a flight attendant.
Nevertheless, it would be the height of iniquity to view pregnancy as a disability so
permanent and immutable that, it must entail the termination of one's employment. It is
clear to us that any individual, regardless of gender, may be subject to exigencies that limit
the performance of functions. However, we fail to appreciate how pregnancy could be such
an impairing occurrence that it leaves no other recourse but the complete termination of
the means through which a woman earns a living.
Apart from the constitutional policy on the fundamental equality before the law of men and
women, it is settled that contracts relating to labor and employment are impressed with
public interest. Article 1700 of the Civil Code provides that "[t]he relation between capital
and labor are not merely contractual. They are so impressed with public interest that labor
contracts must yield to the common good."
Consistent with this, this court's pronouncements in Pakistan International Airlines
Corporation83 are clear and unmistakable:
Petitioner PIA cannot take refuge in paragraph 10 of its employment
agreement which specifies, firstly, the law of Pakistan as the applicable
law of the agreement, and, secondly, lays the venue for settlement of
any dispute arising out of or in connection with the agreement "only [in]
courts of Karachi, Pakistan". The first clause of paragraph 10 cannot be
invoked to prevent the application of Philippine labor laws
and'regulations to the subject matter of this case, i.e., the employer-
employee relationship between petitioner PIA and private
respondents. We have already pointed out that the relationship is much
affected with public interest and that the otherwise applicable Philippine
laws and regulations cannot be rendered illusory by the parties
agreeing upon some other law to govern their relationship. . . . Under
these circumstances, paragraph 10 of the employment agreement
cannot be given effect so as to oust Philippine agencies and courts of
the jurisdiction vested upon them by Philippine law. 84 (Emphasis
supplied)
As the present dispute relates to (what the respondents allege to be) the illegal termination
of respondents' employment, this case is immutably a matter of public interest and public
policy. Consistent with clear pronouncements in law and jurisprudence, Philippine laws
properly find application in and govern this case. 'Moreover, as this premise for Saudia's
insistence on the application forum non conveniens has been shattered, it follows that
Philippine tribunals may properly assume jurisdiction over the present controversy.
Philippine jurisprudence provides ample illustrations of when a court's renunciation of
jurisdiction on account of forum non conveniens is proper or improper.'
In Philsec Investment Corporation v. Court of Appeals,85 this court noted that the trial court
failed to consider that one of the plaintiffs was a domestic corporation, that one of the
defendants was a Filipino, and that it was the extinguishment of the latter's debt that was
the object of the transaction subject of the litigation. Thus, this court held, among others,
that the trial court's refusal to assume jurisdiction was not justified by forum non
conveniens and remanded the case to the trial court.
In Raytheon International, Inc. v. Rouzie, Jr.,86 this court sustained the trial court's
assumption of jurisdiction considering that the trial court could properly enforce judgment
on the petitioner which was a foreign corporation licensed to do business in the Philippines.
In Pioneer International, Ltd. v. Guadiz, Jr.,87 this court found no reason to disturb the trial
court's assumption of jurisdiction over a case in which, as noted by the trial court, "it is
more convenient to hear and decide the case in the Philippines because Todaro [the
plaintiff] resides in the Philippines and the contract allegedly breached involve[d]
employment in the Philippines."88
In Pacific Consultants International Asia, Inc. v. Schonfeld,89 this court held that the fact
that the complainant in an illegal dismissal case was a Canadian citizen and a repatriate
did not warrant the application of forum non conveniens considering that: (1) the Labor
Code does not include forum non conveniens as a ground for the dismissal of a complaint
for illegal dismissal; (2) the propriety of dismissing a case based on forum non
conveniens requires a factual determination; and (3) the requisites for assumption of
jurisdiction as laid out in Bank of America, NT&SA90 were all satisfied.
In contrast, this court ruled in The Manila Hotel Corp. v. National Labor Relations
Commission91 that the National Labor Relations Q Commission was a seriously
inconvenient forum. In that case, private respondent Marcelo G. Santos was working in the
Sultanate of Oman when he received a letter from Palace Hotel recruiting him for
employment in Beijing, China. Santos accepted the offer. Subsequently, however, he was
released from employment supposedly due to business reverses arising from political
upheavals in China (i.e., the Tiananmen Square incidents of 1989). Santos later filed a
Complaint for illegal dismissal impleading Palace Hotel's General Manager, Mr. Gerhard
Schmidt, the Manila Hotel International Company Ltd. (which was, responsible for training
Palace Hotel's personnel and staff), and the Manila Hotel Corporation (which owned 50%
of Manila Hotel International Company Ltd.'s capital stock).
In ruling against the National Labor Relations Commission's exercise of jurisdiction, this
court noted that the main aspects of the case transpired in two (2) foreign jurisdictions,
Oman and China, and that the case involved purely foreign elements. Specifically, Santos
was directly hired by a foreign employer through correspondence sent to Oman. Also, the
proper defendants were neither Philippine nationals nor engaged in business in the
Philippines, while the main witnesses were not residents of the Philippines. Likewise, this
court noted that the National Labor Relations Commission was in no position to conduct
the following: first, determine the law governing the employment contract, as it was entered
into in foreign soil; second, determine the facts, as Santos' employment was terminated in
Beijing; and third, enforce its judgment, since Santos' employer, Palace Hotel, was
incorporated under the laws of China and was not even served with summons.

Contrary to Manila Hotel, the case now before us does not entail a preponderance of
linkages that favor a foreign jurisdiction.
Here, the circumstances of the parties and their relation do not approximate the
circumstances enumerated in Puyat,92 which this court recognized as possibly justifying
the desistance of Philippine tribunals from exercising jurisdiction.
First, there is no basis for concluding that the case can be more conveniently tried
elsewhere. As established earlier, Saudia is doing business in the Philippines. For their
part, all four (4) respondents are Filipino citizens maintaining residence in the Philippines
and, apart from their previous employment with Saudia, have no other connection to the
Kingdom of Saudi Arabia. It would even be to respondents' inconvenience if this case were
to be tried elsewhere.
Second, the records are bereft of any indication that respondents filed their Complaint in
an effort to engage in forum shopping or to vex and inconvenience Saudia.
Third, there is no indication of "unwillingness to extend local judicial facilities to non-
residents or aliens."93 That Saudia has managed to bring the present controversy all the
way to this court proves this.
Fourth, it cannot be said that the local judicial machinery is inadequate for effectuating the
right sought to be maintained. Summons was properly served on Saudia and jurisdiction
over its person was validly acquired.
Lastly, there is not even room for considering foreign law. Philippine law properly governs
the present dispute.
As the question of applicable law has been settled, the supposed difficulty of ascertaining
foreign law (which requires the application of forum non conveniens) provides no
insurmountable inconvenience or special circumstance that will justify depriving Philippine
tribunals of jurisdiction.
Even if we were to assume, for the sake of discussion, that it is the laws of Saudi Arabia
which should apply, it does not follow that Philippine tribunals should refrain from
exercising jurisdiction. To. recall our pronouncements in Puyat, 94 as well as in Bank of
America, NT&SA,95 it is not so much the mere applicability of foreign law which calls into
operation forum non conveniens. Rather, what justifies a court's desistance from
exercising jurisdiction is "[t]he difficulty of ascertaining foreign law"96 or the inability of a
"Philippine Court to make an intelligent decision as to the law[.]"97
Consistent with lex loci intentionis, to the extent that it is proper and practicable (i.e., "to
make an intelligent decision"98), Philippine tribunals may apply the foreign law selected by
the parties. In fact, (albeit without meaning to make a pronouncement on the accuracy and
reliability of respondents' citation) in this case, respondents themselves have made
averments as to the laws of Saudi Arabia. In their Comment, respondents write:
Under the Labor Laws of Saudi Arabia and the Philippines[,] it is illegal
and unlawful to terminate the employment of any woman by virtue of
pregnancy. The law in Saudi Arabia is even more harsh and strict [sic]
in that no employer can terminate the employment of a female worker
or give her a warning of the same while on Maternity Leave, the specific
provision of Saudi Labor Laws on the matter is hereto quoted as follows:
"An employer may not terminate the employment of
a female worker or give her a warning of the same
while on maternity leave." (Article 155, Labor Law of
the Kingdom of Saudi Arabia, Royal Decree No.
M/51.)99cralawlawlibrary
All told, the considerations for assumption of jurisdiction by Philippine tribunals as outlined
in Bank of America, NT&SA100 have been satisfied. First, all the parties are based in the
Philippines and all the material incidents transpired in this jurisdiction. Thus, the parties
may conveniently seek relief from Philippine tribunals. Second, Philippine tribunals are in a
position to make an intelligent decision as to the law and the facts. Third, Philippine
tribunals are in a position to enforce their decisions. There is no compelling basis for
ceding jurisdiction to a foreign tribunal. Quite the contrary, the immense public policy
considerations attendant to this case behoove Philippine tribunals to not shy away from
their duty to rule on the case.
IV
Respondents were illegally terminated.
In Bilbao v. Saudi Arabian Airlines,101 this court defined voluntary resignation as "the
voluntary act of an employee who is in a situation where one believes that personal
reasons cannot be sacrificed in favor of the exigency of the service, and one has no other
choice but to dissociate oneself from employment. It is a formal pronouncement or
relinquishment of an office, with the intention of relinquishing the office accompanied by
the act of relinquishment."102 Thus, essential to the act of resignation is voluntariness. It
must be the result of an employee's exercise of his or her own will.
In the same case of Bilbao, this court advanced a means for determining whether an
employee resigned voluntarily:
As the intent to relinquish must concur with the overt act of
relinquishment, the acts of the employee before and after the alleged
resignation must be considered in determining whether he or she, in
fact, intended, to sever his or her employment.103 (Emphasis supplied)
On the other hand, constructive dismissal has been defined as "cessation of work because
'continued employment is rendered impossible, unreasonable or unlikely, as an offer
involving a demotion in rank or a diminution in pay' and other benefits." 104
In Penaflor v. Outdoor Clothing Manufacturing Corporation,105 constructive dismissal has
been described as tantamount to "involuntarily [sic] resignation due to the harsh, hostile,
and unfavorable conditions set by the employer."106 In the same case, it was noted that
"[t]he gauge for constructive dismissal is whether a reasonable person in the employee's
position would feel compelled to give up his employment under the prevailing
circumstances."107
Applying the cited standards on resignation and constructive dismissal, it is clear that a. From Ma. Jopette's exit interview form:
respondents were constructively dismissed. Hence, their termination was illegal.
3. In what respects has the job met or failed to meet your
The termination of respondents' employment happened when they were pregnant and expectations?
expecting to incur costs on account of child delivery and infant rearing. As noted by the
Court of Appeals, pregnancy is a time when they need employment to sustain their THE SUDDEN TWIST OF DECISION REGARDING THE
families.108 Indeed, it goes against normal and reasonable human behavior to abandon MATERNITY LEAVE.116
one's livelihood in a time of great financial need.

It is clear that respondents intended to remain employed with Saudia. All they did was avail b. From Loraine's exit interview form:
of their maternity leaves. Evidently, the very nature of a maternity leave means that a
pregnant employee will not report for work only temporarily and that she will resume the 1. What are your main reasons for leaving Saudia? What company
performance of her duties as soon as the leave allowance expires. are you joining?

It is also clear that respondents exerted all efforts to' remain employed with Saudia. Each xxx xxx xxx
of them repeatedly filed appeal letters (as much as five [5] letters in the case of
Rebesencio109) asking Saudia to reconsider the ultimatum that they resign or be
terminated along with the forfeiture of their benefits. Some of them even went to Saudia's Others
office to personally seek reconsideration.110
CHANGING POLICIES REGARDING MATERNITY LEAVE
Respondents also adduced a copy of the "Unified Employment Contract for Female Cabin (PREGNANCY)117
Attendants."111This contract deemed void the employment of a flight attendant who
becomes pregnant and threatened termination due to lack of medical fitness.112 The threat As to respondents' quitclaims, in Phil. Employ Services and Resources, Inc. v.
of termination (and the forfeiture of benefits that it entailed) is enough to compel a Paramio,118 this court noted that "[i]f (a) there is clear proof that the waiver was wangled
reasonable person in respondents' position to give up his or her employment. from an unsuspecting or gullible person; or (b) the terms of the settlement are
unconscionable, and on their face invalid, such quitclaims must be struck down as invalid
Saudia draws attention to how respondents' resignation letters were supposedly made in or illegal."119 Respondents executed their quitclaims after having been unfairly given an
their own handwriting. This minutia fails to surmount all the other indications negating any ultimatum to resign or be terminated (and forfeit their benefits).
voluntariness on respondents' part. If at all, these same resignation letters are proof of how
any supposed resignation did not arise from respondents' own initiative. As earlier pointed V
out, respondents' resignations were executed on Saudia's blank letterheads that Saudia
had provided. These letterheads already had the word "RESIGNATION" typed on the
Having been illegally and unjustly dismissed, respondents are entitled to full backwages
subject portion of their respective headings when these were handed to
and benefits from the time of their termination until the finality of this Decision. They are
respondents.113ChanRoblesVirtualawlibrary
likewise entitled to separation pay in the amount of one (1) month's salary for every year of
service until the fmality of this Decision, with a fraction of a year of at least six (6) months
"In termination cases, the burden of proving just or valid cause for dismissing an employee
being counted as one (1) whole year.
rests on the employer."114 In this case, Saudia makes much of how respondents
supposedly completed their exit interviews, executed quitclaims, received their separation
Moreover, "[m]oral damages are awarded in termination cases where the employee's
pay, and took more than a year to file their Complaint. 115 If at all, however, these
dismissal was attended by bad faith, malice or fraud, or where it constitutes an act
circumstances prove only the fact of their occurrence, nothing more. The voluntariness of
oppressive to labor, or where it was done in a manner contrary to morals, good customs or
respondents' departure from Saudia is non sequitur.
public policy."120 In this case, Saudia terminated respondents' employment in a manner
that is patently discriminatory and running afoul of the public interest that underlies
Mere compliance with standard procedures or processes, such as the completion of their
employer-employee relationships. As such, respondents are entitled to moral damages.
exit interviews, neither negates compulsion nor indicates voluntariness.
To provide an "example or correction for the public good" 121 as against such discriminatory
As with respondent's resignation letters, their exit interview forms even support their claim
and callous schemes, respondents are likewise entitled to exemplary damages.
of illegal dismissal and militates against Saudia's arguments. These exit interview forms,
as reproduced by Saudia in its own Petition, confirms the unfavorable conditions as
In a long line of cases, this court awarded exemplary damages to illegally dismissed
regards respondents' maternity leaves. Ma. Jopette's and Loraine's exit interview forms are
employees whose "dismissal[s were] effected in a wanton, oppressive or malevolent
particularly telling:
manner."122 This court has awarded exemplary damages to employees who were
terminated on such frivolous, arbitrary, and unjust grounds as membership in or 113006 are hereby AFFIRMED in all other respects. Accordingly, petitioner Saudi Arabian
involvement with labor unions,123 injuries sustained in the course of Airlines is ordered to pay respondents:
124
employment, development of a medical condition due to the employer's own violation of
the employment contract,125and lodging of a Complaint against the employer. 126 Exemplary Full backwages and all other benefits computed from the respective dates in which
damages were also awarded to employees who were deemed illegally dismissed by an (1)
each of the respondents were illegally terminated until the finality of this Decision;
employer in an attempt to evade compliance with statutorily established employee
benefits.127 Likewise, employees dismissed for supposedly just causes, but in violation of
due process requirements, were awarded exemplary damages. 128
Separation pay computed from the respective dates in which each of the respondents
These examples pale in comparison to the present controversy. Stripped of all commenced employment until the finality of this Decision at the rate of one (1) month's
(2)
unnecessary complexities, respondents were dismissed for no other reason than simply salary for every year of service, with a fraction of a year of at least six (6) months
that they were pregnant. This is as wanton, oppressive, and tainted with bad faith as any being counted as one (1) whole year;
reason for termination of employment can be. This is no ordinary case of illegal dismissal.
This is a case of manifest gender discrimination. It is an affront not only to our statutes and
policies on employees' security of tenure, but more so, to the Constitution's dictum of (3) Moral damages in the amount of P100,000.00 per respondent;
fundamental equality between men and women. 129

The award of exemplary damages is, therefore, warranted, not only to remind employers of
the need to adhere to the requirements of procedural and substantive due process in (4) Exemplary damages in the amount of P200,000.00 per respondent; and
termination of employment, but more importantly, to demonstrate that gender
discrimination should in no case be countenanced.
(5) Attorney's fees equivalent to 10% of the total award.
Having been compelled to litigate to seek reliefs for their illegal and unjust dismissal,
respondents are likewise entitled to attorney's fees in the amount of 10% of the total
monetary award.130 Interest of 6% per annum shall likewise be imposed on the total judgment award from the
finality of this Decision until full satisfaction thereof.
VI
This case is REMANDED to the Labor Arbiter to make a detailed computation of the
amounts due to respondents which petitioner Saudi Arabian Airlines should pay without
Petitioner Brenda J. Betia may not be held liable. delay.

A corporation has a personality separate and distinct from those of the persons composing SO ORDERED.
it. Thus, as a rule, corporate directors and officers are not liable for the illegal termination
of a corporation's employees. It is only when they acted in bad faith or with malice that they Carpio, (Chairperson), Velasco, Jr.,*Del Castillo, and Mendoza, JJ., concur.
become solidarity liable with the corporation. 131

In Ever Electrical Manufacturing, Inc. (EEMI) v. Samahang Manggagawa ng Ever

Electrical,132 this court clarified that "[b]ad faith does not connote bad judgment or
negligence; it imports a dishonest purpose or some moral obliquity and conscious doing of
wrong; it means breach of a known duty through some motive or interest or ill will; it
partakes of the nature of fraud."133

Respondents have not produced proof to show that Brenda J. Betia acted in bad faith or
with malice as regards their termination. Thus, she may not be held solidarity liable with
Saudia.cralawred

WHEREFORE, with the MODIFICATIONS that first, petitioner Brenda J. Betia is not Immunity from Suit/Political Question
solidarity liable with petitioner Saudi Arabian Airlines, and second, that petitioner Saudi
Arabian Airlines is liable for moral and exemplary damages. The June 16, 2011 Decision United States Court of Appeals,District of Columbia Circuit.
and the September 13, 2011 Resolution of the Court of Appeals in CA-G.R. SP. No.
HWANG GEUM JOO, et al., Appellants v. JAPAN, Minister Yohei Kono, Minister of
Foreign Affairs, Appellee.
No. 01-7169.
Decided: June 28, 2005
Before:  GINSBURG, Chief Judge, and SENTELLE and TATEL, Circuit Judges. Agnieszka
M. Fryszman argued the cause for appellants. With her on the briefs were Michael D.
Hausfeld, Barry A. Fisher, David Grosz, and Bill Lann Lee. Jenny S. Martinez argued the
cause for amici curiae Askin, et al. in support of appellants. With her on the brief were
David A. Handzo and Richard Heideman. Craig A. Hoover argued the cause for appellee.
With him on the brief were Jonathan S. Franklin and Lorane F. Hebert. Sharon Swingle,
Attorney, U.S. Department of Justice, argued the cause for amicus curiae United States of
America in support of appellee. With her on the brief were Peter D. Keisler, Assistant
Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Mark B. Stern, Attorney.
We again review the district court's dismissal of the appellants' complaint alleging
Japanese soldiers “routinely raped, tortured ․ [and] mutilated” them, along with thousands
of other women, in occupied countries before and during World War II. Hwang Geum Joo v.
Japan, 332 F.3d 679, 681 (D.C.Cir.2003). The case returns to us now on remand from
the Supreme Court. Having had the benefit of further briefing and argument, we affirm
the judgment of the district court on the ground that the case presents a nonjusticiable
political question, namely, whether the governments of the appellants' countries foreclosed
the appellants' claims in the peace treaties they signed with Japan.
I. Background
The facts of this case are set forth in our previous opinion, id. at 680-81. In brief, the
appellants are 15 women from China, Taiwan, South Korea, and the Philippines;  in 2000
they sued Japan in the district court under the Alien Tort Statute, 28 U.S.C. § 1350,
“seeking money damages for [allegedly] having been subjected to sexual slavery and
torture before and during World War II,” in violation of “both positive and customary
international law.” 332 F.3d at 680, 681.
The district court dismissed the appellants' complaint, Hwang Geum Joo v. Japan, 172
F.Supp.2d 52, 63 (D.D.C.2001), concluding first that Japan's alleged activities did not
“arise in connection with a commercial activity” and therefore did not fall within the
commercial activity exception in the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §
1605(a)(2). Accordingly, the district court did not consider the second requirement for
jurisdiction under that exception-that “Japan's alleged conduct caused a ‘direct effect’ in
the United States.” 172 F.Supp.2d at 64 n. 8. The district court went on to hold in the
alternative that the complaint presents a nonjusticiable political question, noting that “the
series of treaties signed after the war was clearly aimed at resolving all war claims against
Japan.” Id. at 67.
We affirmed on the ground that Japan would have been afforded absolute immunity from
suit in the United States at the time of the alleged activities, 332 F.3d at 685, and that the
Congress did not manifest a clear intent for the commercial activity exception to apply
retroactively to events prior to May 19, 1952, when the State Department first espoused
the restrictive theory of immunity later codified in the FSIA, id. at 686. The Supreme
Court, however, held in Republic of Austria v. Altmann, 541 U.S. 677, 699, 124 S.Ct. 2240,
159 L.Ed.2d 1 (2004), that the FSIA applies to all cases filed thereunder “regardless of
when the underlying conduct occurred.” Accordingly, the Court granted the appellants'
petition for a writ of certiorari, vacated our judgment, and remanded the case to this court
for further consideration in light of Altmann. Hwang Geum Joo v. Japan, 542 U.S. 901,
124 S.Ct. 2835, 159 L.Ed.2d 265 (2004).
II. Analysis
The appellants again urge this court to reverse the district court's holding that their claims
are not “based upon ․ act[s] ․ in connection with a commercial activity,” 28 U.S.C. §
1605(a)(2), and to remand the case to the district court for it to decide in the first instance
whether Japan's alleged actions “cause[d] a direct effect in the United States.” Id. Japan,
and the United States as amicus curiae, again argue that Japan enjoys sovereign
immunity because its alleged activities were not commercial and, in any event, that the
appellants' complaint presents a nonjusticiable political question.
As explained below, we agree with the latter argument and therefore do not address the
issue of sovereign immunity. The appellants, however, citing Steel Co. v. Citizens for a
Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), contend that
“[b]efore reaching [the] political question [doctrine], this [c]ourt must establish jurisdiction”
under the FSIA. We turn first to that issue.
A. The Order of Proceeding
As the Supreme Court stated in Steel Co., “For a court to pronounce upon the meaning
․ of a state or federal law when it has no jurisdiction to do so is, by very definition, for a
court to act ultra vires.” 523 U.S. at 101-02, 118 S.Ct. 1003. The court must therefore
“address questions pertaining to its or a lower court's jurisdiction before proceeding to the
merits.” Tenet v. Doe, 544 U.S. 1, ---- n. 4, 125 S.Ct. 1230, 1235 n. 4, 161 L.Ed.2d 82
(2005).
The appellants apparently assume, but point to no authority suggesting, a dismissal
under the political question doctrine is an adjudication on the merits. That is not how the
Supreme Court sees the matter:
[T]he concept of justiciability, which expresses the jurisdictional limitations imposed upon
federal courts by the ‘case or controversy’ requirement of Art. III, embodies ․ the ․
political question doctrine[ ] ․ [T]he presence of a political question [thus] suffices to
prevent the power of the federal judiciary from being invoked by the complaining party.
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41
L.Ed.2d 706 (1974).
Moreover, Steel Co. “does not dictate a sequencing of jurisdictional issues.” Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (within
court's discretion to address personal jurisdiction before subject-matter jurisdiction);  see
also Toca Producers v. FERC, 411 F.3d 262, 264 (D.C.Cir.2005) (addressing ripeness
before standing). Rather, as this court held In re Papandreou, “a court that dismisses on
other non-merits grounds such as forum non conveniens and personal jurisdiction, before
finding subject-matter jurisdiction, makes no assumption of law-declaring power that
violates the separation of powers principles underlying ․ Steel Company.” 139 F.3d 247,
255 (1998). As the Supreme Court stated in Tenet, “application of the Totten rule of
dismissal, [92 U.S. 105, 23 L.Ed. 605 (1876),] like the abstention doctrine of Younger v.
Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), or the prudential standing
doctrine, represents the sort of ‘threshold question’ we have recognized may be resolved
before addressing jurisdiction.” 125 S.Ct. at 1235 n. 4. Likewise, we need not resolve the
question of the district court's subject-matter jurisdiction under 28 U.S.C. § 1330-that is,
whether Japan is entitled to sovereign immunity under the FSIA, see Creighton Ltd. v.
Gov't of the State of Qatar, 181 F.3d 118, 121 (D.C.Cir.1999) (the FSIA “is the sole basis
for obtaining jurisdiction over a foreign state in our courts”)-before considering whether the
complaint presents a nonjusticiable political question, see Ruhrgas, 526 U.S. at 585, 119
S.Ct. 1563 (“It is hardly novel for a federal court to choose among threshold grounds for
denying audience to a case on the merits”).
B. The Political Question Doctrine
The War in the Pacific has been over for 60 years, and Japan has long since signed a
peace treaty with each of the countries from which the appellants come. The appellants
maintain those treaties preserved, and Japan maintains they extinguished, war claims
made by citizens of those countries against Japan. As explained below, our Constitution
does not vest the authority to resolve that dispute in the courts. Rather, we defer to the
judgment of the Executive Branch of the United States Government, which represents, in a
thorough and persuasive Statement of Interest, that judicial intrusion into the relations
between Japan and other foreign governments would impinge upon the ability of the
President to conduct the foreign relations of the United States.
Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), remains the starting point
for analysis under the political question doctrine. There the Supreme Court explained
that “[p]rominent on the surface of any case held to involve a political question is found” at
least one of six factors, the first of which is “a textually demonstrable constitutional
commitment of the issue to a coordinate political department ․ ” Id. at 217, 82 S.Ct.
691.* Of course, questions concerning foreign relations “frequently ․ involve the exercise
of a discretion demonstrably committed to the executive or legislature”;  the Court
cautioned, however, that “it is error to suppose that every case or controversy which
touches foreign relations lies beyond judicial cognizance.” Id. at 211, 82 S.Ct. 691.
Courts are therefore to focus their analysis upon “the particular question posed, in terms of
the history of its management by the political branches.” Id.
The Supreme Court has recently given further direction more closely related to the legal
and factual circumstances of this case:  A policy of “case-specific deference to the political
branches” may be appropriate in cases brought under the Alien Tort Statute. Sosa v.
Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 2766 n. 21, 159 L.Ed.2d 718 (2004). In
Sosa, the Court took note of certain class actions seeking damages for those injured by
“the regime of apartheid that formerly controlled South Africa”;  in each case the United
States had filed a Statement of Interest counseling dismissal because prosecution of the
case would interfere with South Africa's policy of “deliberately avoid[ing] a ‘victors' justice’
approach to the crimes of apartheid” in favor of “confession and absolution ․ reconciliation,
reconstruction, reparation and goodwill.” Id. “In such cases,” the Court explained, “there is
a strong argument that federal courts should give serious weight to the Executive Branch's
view of the case's impact on foreign policy.” Id. Similarly, the Court in Altmann noted that
a Statement of Interest concerning “the implications of exercising jurisdiction over [a]
particular [foreign government] in connection with [its] alleged conduct ․ might well be
entitled to deference as the considered judgment of the Executive on a particular question
of foreign policy.” 541 U.S. at 702, 124 S.Ct. 2240;  see also id. at 714, 124 S.Ct. 2240
(Breyer, J., concurring) (citing district court's opinion in this case).
With these principles in mind, we turn to “the particular question posed” in this case, Baker,
369 U.S. at 211, 82 S.Ct. 691, namely, whether the series of treaties Japan concluded in
order to secure the peace after World War II foreclosed the appellants' claims. As we
explained in our previous opinion, Article 14 of the 1951 Treaty of Peace between Japan
and the Allied Powers, 3 U.S.T. 3169, “expressly waives ․ ‘all claims of the Allied Powers
and their nationals arising out of any actions taken by Japan and its nationals in the course
of the prosecution of the war.’ ” 332 F.3d at 685.
The appellants from China, Taiwan, and South Korea argue that because their
governments were not parties to the 1951 Treaty, the waiver of claims provision in Article
14 did not extinguish their claims. Neither, they argue, did the subsequent agreements
between Japan and the governments of their countries. Although the appellants
acknowledge that “it may seem anomalous that aliens may sue where similar claims of U.S.
nationals are waived,” they argue “that is precisely the result contemplated by ․ the [Alien
Tort Statute], 28 U.S.C. § 1350.” *
“Anomalous” is an understatement. See Statement of Interest of the United States at 28
(“it manifestly was not the intent of the President and Congress to preclude Americans
from bringing their war-related claims against Japan ․ while allowing federal or state
courts to serve as a venue for the litigation of similar claims by non-U.S. nationals”).
Even if we assume, however, as the appellants contend, that the 1951 Treaty does not of
its own force deprive the courts of the United States of jurisdiction over their claims, it is
pellucidly clear the Allied Powers intended that all war-related claims against Japan be
resolved through government-to-government negotiations rather than through private tort
suits. Indeed, Article 26 of the Treaty obligated Japan to enter “bilateral” peace treaties
with non-Allied states “on the same or substantially the same terms as are provided for in
the present treaty,” which indicates the Allied Powers expected Japan to resolve other
states' claims, like their own, through government-to-government agreement. To the
extent the subsequent treaties between Japan and the governments of the appellants'
countries resolved the claims of their respective nationals, the 1951 Treaty at a minimum
obliges the courts of the United States not to disregard those bilateral resolutions.
First, the Republic of the Philippines, as an Allied Power, was a signatory to the 1951
Treaty itself and thus at least purported to waive the claims of its nationals. 136 U.N.T.S.
at 137, ratified 260 U.N.T.S. 450. Then in 1952 Japan reached an agreement with the
Republic of China (Taiwan), 138 U.N.T.S. 37, which did not expressly mention the
settlement of individual claims but did state in Article XI that “[u]nless otherwise provided
for in the present Treaty ․ any problem arising between [the parties] as a result of the
existence of a state of war shall be settled in accordance with the relevant provisions of the
[1951] Treaty.” In 1965 Japan and the Republic of Korea (South Korea) entered into an
agreement providing that “the problem concerning property, rights, and interests of the two
Contracting Parties and their nationals ․ and concerning claims between the Contracting
Parties and their nationals ․ is settled completely and finally.” 583 U.N.T.S. 258, 260 (Art.
II, § 1). Finally, in 1972 Japan and the People's Republic of China issued a Joint
Communiqué in which China “renounce[d] its demand for war reparation from Japan,” and
in 1978 Japan and China affirmed in a formal treaty of peace that “the principles set out in
[the Joint Communiqué] should be strictly observed.” 1225 U.N.T.S. 269.
As evidenced by the 1951 Treaty itself, when negotiating peace treaties,
governments have dealt with ․ private claims as their own, treating them as national
assets, and as counters, ‘chips', in international bargaining. Settlement agreements have
lumped, or linked, claims deriving from private debts with others that were
intergovernmental in origin, and concessions in regard to one category of claims might be
set off against concessions in the other, or against larger political considerations unrelated
to debts.
Louis Henkin, Foreign Affairs and the Constitution 300 (2d edition 1996);  see Dames and
Moore v. Regan, 453 U.S. 654, 688, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981) (upholding
President's authority to settle claims of citizens as “a necessary incident to the resolution of
a major foreign policy dispute between our country and another [at least] where ․
Congress acquiesced in the President's action”);  Am. Ins. Ass'n v. Garamendi, 539 U.S.
396, 424, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (acknowledging “President's authority to
provide for settling claims in winding up international hostilities”).
The governments of the appellants' countries apparently had the authority-at least the
appellants do not contest the point-to bargain away their private claims in negotiating a
peace with Japan and, as we noted previously, it appears “in fact [they] did.” 332 F.3d at
685. Indeed, Professor Henkin reports that “except as an agreement might provide
otherwise, international claim settlements generally wipe out the underlying private debt,
terminating any recourse under domestic law as well.” Above at 300. The Supreme
Court first expressed the same understanding with respect to the Treaty of Paris ending
the War of Independence, which expressly provided for the preservation of private claims.
In Ware v. Hylton, 3 U.S. (3 Dall.) 199, 230, 1 L.Ed. 568 (1796), a case brought by a British
subject to recover a debt confiscated by the Commonwealth of Virginia during the war,
Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war, and that after peace
is concluded, neither the matter in dispute, nor the conduct of either party, during the war,
can ever be revived, or brought into contest again. All violencies, injuries, or damages
sustained by the government, or people of either, during the war, are buried in oblivion;
 and all those things are implied by the very treaty of peace;  and therefore not necessary
to be expressed. Hence it follows, that the restitution of, or compensation for, British
property confiscated, or extinguished, during the war, by any of the United States, could
only be provided for by the treaty of peace;  and if there had been no provision, respecting
these subjects, in the treaty, they could not be agitated after the treaty, by the British
government, much less by her subjects in courts of justice. (Emphasis supplied).
Contrary to that principle, the appellants insist the treaties between Japan and Taiwan,
South Korea, and China preserved the claims of individuals by failing to mention them (a
claim that would be untenable with respect to the Philippines). Japan does not agree, nor
does the Department of State, which takes the position that “[t]he plaintiffs' governments ․
chose to resolve those claims through international agreements with Japan.” Statement
of Interest at 31. In order to adjudicate the plaintiffs' claims, the court would have to
resolve their dispute with Japan over the meaning of the treaties between Japan and
Taiwan, South Korea, and China, which, as the State Department notes in arguing this
case is nonjusticiable, would require the court to determine “the effects of those
agreements on the rights of their citizens with respect to events occurring outside the
United States.” Id.
The question whether the war-related claims of foreign nationals were extinguished when
the governments of their countries entered into peace treaties with Japan is one that
concerns the United States only with respect to her foreign relations, the authority for
which is demonstrably committed by our Constitution not to the courts but to the political
branches, with “the President [having] the ‘lead role.’ ” Garamendi, 539 U.S. at 423 n. 12,
123 S.Ct. 2374. And with respect to that question, the history of management by the
political branches, Baker, 369 U.S. at 211, 82 S.Ct. 691, is clear and consistent:  Since the
conclusion of World War II, it has been the foreign policy of the United States “to effect as
complete and lasting a peace with Japan as possible by closing the door on the litigation of
war-related claims, and instead effecting the resolution of those claims through political
means.” Statement of Interest at 29;  see also S.Rep. No. 82-2, 82d Cong., 2d Sess. 12
(1952) (“Obviously insistence upon the payment of reparations in any proportion
commensurate with the claims of the injured countries and their nationals would wreck
Japan's economy, dissipate any credit that it may possess at present, destroy the initiative
of its people, and create misery and chaos in which the seeds of discontent and
communism would flourish”);  Aldrich v. Mitsui & Co. (USA), Case No. 87-912-Civ-J-12,
Slip Op. at 3 (M.D.Fla. Jan. 20, 1988) (following State Department's recommendation to
dismiss private claim as barred by 1951 Treaty);  In re World War II Era Japanese Forced
Labor Litigation, 114 F.Supp.2d 939, 946-48 (N.D.Cal.2000) (same).
It is of course true, as the appellants point out, that in general “the courts have the
authority to construe treaties and executive agreements,” Japan Whaling Ass'n v. Am.
Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986);  see also
Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1235-36 (11th Cir.2004). At the
same time, the Executive's interpretation of a treaty is ordinarily entitled to “great weight,”
Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85, 102 S.Ct. 2374, 72 L.Ed.2d
765 (1982).
Here, however, the United States is not a party to the treaties the meaning of which is in
dispute, and the Executive does not urge us to adopt a particular interpretation of those
treaties. Rather, the Executive has persuasively demonstrated that adjudication by a
domestic court not only “would undo” a settled foreign policy of state-to-state negotiation
with Japan, but also could disrupt Japan's “delicate” relations with China and Korea,
thereby creating “serious implications for stability in the region.” Statement of Interest at
34-35. Consider:  According to the appellants the Republic of Korea does not agree with
Japan's understanding that the treaty between them extinguished the appellants' claims
against Japan. See Reply Brief of Appellants at 15 n. 14 (quoting Korean Foreign
Minister as saying that “it is the government's position that the [Treaty of 1965] does not
have any effect on individual rights to bring claims or lawsuits,” Decl. of Prof. Chang Rok
Kim, Pls.' Opp. Mot. Dismiss. Ex. 2 at 12). Is it the province of a court in the United
States to decide whether Korea's or Japan's reading of the treaty between them is correct,
when the Executive has determined that choosing between the interests of two foreign
states in order to adjudicate a private claim against one of them would adversely affect the
foreign relations of the United States? Decidedly not. The Executive's judgment that
adjudication by a domestic court would be inimical to the foreign policy interests of the
United States is compelling and renders this case nonjusticiable under the political
question doctrine.
III. Conclusion
We hold the appellants' complaint presents a nonjusticiable political question, namely,
whether the governments of the appellants' countries resolved their claims in negotiating
peace treaties with Japan. In so doing we defer to “the considered judgment of the
Executive on [this] particular question of foreign policy.” Altmann, 541 U.S. at 702, 124
S.Ct. 2240;  Cf. Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir.2005) ( “Condemning-for its
wartime actions-a foreign government with which the United States was at war would
require us to review an exercise of foreign policy judgment by the coordinate political
branch to which authority to make that judgment has been constitutionally committed”).
For the court to disregard that judgment, to which the Executive has consistently adhered,
and which it persuasively articulated in this case, would be imprudent to a degree beyond
our power.
Accordingly, as we said when this case was previously before us, “much as we may feel
for the plight of the appellants, the courts of the United States simply are not authorized to
hear their case.” 332 F.3d at 687. For the foregoing reasons, the judgment of the district
court is
Affirmed.
G.R. No. 162230 April 28, 2010
ISABELITA C. VINUYA et.alPetitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE
HONORABLE SECRETARY OF FOREIGN AFFAIRS DELIA DOMINGO-ALBERT, THE
HONORABLE SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, and THE
HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYO, Respondents.
DECISION
DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted
by plaintiffs in these actions, exchanged full compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that bargain. And while full compensation for
plaintiffs' hardships, in the purely economic sense, has been denied these former prisoners
and countless other survivors of the war, the immeasurable bounty of life for themselves
and their posterity in a free society and in a more peaceful world services the debt. 1
There is a broad range of vitally important areas that must be regularly decided by the
Executive Department without either challenge or interference by the Judiciary. One such
area involves the delicate arena of foreign relations. It would be strange indeed if the
courts and the executive spoke with different voices in the realm of foreign policy.
Precisely because of the nature of the questions presented, and the lapse of more than 60
years since the conduct complained of, we make no attempt to lay down general
guidelines covering other situations not involved here, and confine the opinion only to the
very questions necessary to reach a decision on this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an
application for the issuance of a writ of preliminary mandatory injunction against the Office
of the Executive Secretary, the Secretary of the Department of Foreign Affairs (DFA), the
Secretary of the Department of Justice (DOJ), and the Office of the Solicitor General
(OSG).
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization
registered with the Securities and Exchange Commission, established for the purpose of
providing aid to the victims of rape by Japanese military forces in the Philippines during the
Second World War.ten.lihpwal
Petitioners narrate that during the Second World War, the Japanese army attacked
villages and systematically raped the women as part of the destruction of the village. Their
communities were bombed, houses were looted and burned, and civilians were publicly
tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women and
held them in houses or cells, where they were repeatedly raped, beaten, and abused by
Japanese soldiers. As a result of the actions of their Japanese tormentors, the petitioners
have spent their lives in misery, having endured physical injuries, pain and disability, and
mental and emotional suffering.2
Petitioners claim that since 1998, they have approached the Executive Department
through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the
Japanese officials and military officers who ordered the establishment of the "comfort
women" stations in the Philippines. However, officials of the Executive Department
declined to assist the petitioners, and took the position that the individual claims of the
comfort women for compensation had already been fully satisfied by Japan’s compliance
with the Peace Treaty between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that respondents
committed grave abuse of discretion amounting to lack or excess of discretion in refusing
to espouse their claims for the crimes against humanity and war crimes committed against
them; and (b) compel the respondents to espouse their claims for official apology and
other forms of reparations against Japan before the International Court of Justice (ICJ) and
other international tribunals.
Petitioners’ arguments
Petitioners argue that the general waiver of claims made by the Philippine government in
the Treaty of Peace with Japan is void. They claim that the comfort women system
established by Japan, and the brutal rape and enslavement of petitioners constituted a
crime against humanity,3 sexual slavery,4 and torture.5 They allege that the prohibition
against these international crimes is jus cogens norms from which no derogation is
possible; as such, in waiving the claims of Filipina comfort women and failing to espouse
their complaints against Japan, the Philippine government is in breach of its legal
obligation not to afford impunity for crimes against humanity. Finally, petitioners assert that
the Philippine government’s acceptance of the "apologies" made by Japan as well as funds
from the Asian Women’s Fund (AWF) were contrary to international law.
Respondents’ Arguments
Respondents maintain that all claims of the Philippines and its nationals relative to the war
were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations
Agreement of 1956.6
Article 14 of the Treaty of Peace7 provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the Allied Powers for the damage
and suffering caused by it during the war. Nevertheless it is also recognized that the
resources of Japan are not presently sufficient, if it is to maintain a viable economy, to
make complete reparation for all such damage and suffering and at the present time meet
its other obligations.
b) Except as otherwise provided in the present Treaty, the Allied Powers waive all
reparations claims of the Allied Powers, other claims of the Allied Powers and their
nationals arising out of any actions taken by Japan and its nationals in the course of the
prosecution of the war, and claims of the Allied Powers for direct military costs of
occupation.
In addition, respondents argue that the apologies made by Japan 8 have been satisfactory,
and that Japan had addressed the individual claims of the women through the atonement
money paid by the Asian Women’s Fund.1avvphi1
Historical Background
The comfort women system was the tragic legacy of the Rape of Nanking. In December
1937, Japanese military forces captured the city of Nanking in China and began a
"barbaric campaign of terror" known as the Rape of Nanking, which included the rapes and
murders of an estimated 20,000 to 80,000 Chinese women, including young girls, pregnant
mothers, and elderly women.9 Document1zzF24331552898
In reaction to international outcry over the incident, the Japanese government sought ways
to end international condemnation10 by establishing the "comfort women" system. Under
this system, the military could simultaneously appease soldiers' sexual appetites and
contain soldiers' activities within a regulated environment. 11 Comfort stations would also
prevent the spread of venereal disease among soldiers and discourage soldiers from
raping inhabitants of occupied territories.12
Daily life as a comfort woman was "unmitigated misery." 13 The military forced victims into
barracks-style stations divided into tiny cubicles where they were forced to live, sleep, and
have sex with as many 30 soldiers per day. 14The 30 minutes allotted for sexual relations
with each soldier were 30-minute increments of unimaginable horror for the
women.15 Disease was rampant.16 Military doctors regularly examined the women, but
these checks were carried out to prevent the spread of venereal diseases; little notice was
taken of the frequent cigarette burns, bruises, bayonet stabs and even broken bones
inflicted on the women by soldiers. Document1zzF48331552898
Fewer than 30% of the women survived the war.17 Their agony continued in having to
suffer with the residual physical, psychological, and emotional scars from their former lives.
Some returned home and were ostracized by their families. Some committed suicide.
Others, out of shame, never returned home.18
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to accept legal
responsibility and pay compensatory damages for the comfort women system were
through a series of lawsuits, discussion at the United Nations (UN), resolutions by various
nations, and the Women’s International Criminal Tribunal. The Japanese government, in
turn, responded through a series of public apologies and the creation of the AWF. 19
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in Japan by
former comfort women against the Japanese government. The Tokyo District Court
however dismissed their case.20 Other suits followed,21but the Japanese government has,
thus far, successfully caused the dismissal of every case. 22
Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the
comfort women system brought their claims before the United States (US). On September
18, 2000, 15 comfort women filed a class action lawsuit in the US District Court for the
District of Columbia23 "seeking money damages for [allegedly] having been subjected to
sexual slavery and torture before and during World War II," in violation of "both positive
and customary international law." The case was filed pursuant to the Alien Tort Claims Act
("ATCA"),24 which allowed the plaintiffs to sue the Japanese government in a US federal
district court.25 On October 4, 2001, the district court dismissed the lawsuit due to lack of
jurisdiction over Japan, stating that "[t]here is no question that this court is not the
appropriate forum in which plaintiffs may seek to reopen x x x discussions nearly half a
century later x x x [E]ven if Japan did not enjoy sovereign immunity, plaintiffs' claims are
non-justiciable and must be dismissed."
The District of Columbia Court of Appeals affirmed the lower court's dismissal of the
case.26 On appeal, the US Supreme Court granted the women’s petition for writ of
certiorari, vacated the judgment of the District of Columbia Court of Appeals, and
remanded the case.27 On remand, the Court of Appeals affirmed its prior decision, noting
that "much as we may feel for the plight of the appellants, the courts of the US simply are
not authorized to hear their case."28 The women again brought their case to the US
Supreme Court which denied their petition for writ of certiorari on February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan
(KCWS), submitted a petition to the UN Human Rights Commission (UNHRC), asking for
assistance in investigating crimes committed by Japan against Korean women and
seeking reparations for former comfort women.29 The UNHRC placed the issue on its
agenda and appointed Radhika Coomaraswamy as the issue's special investigator. In
1996, Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing Korean
women to act as sex slaves for the imperial army, and made the following
recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial Army
during the Second World War was a violation of its obligations under international law and
accept legal responsibility for that violation;
(b) Pay compensation to individual victims of Japanese military sexual slavery according to
principles outlined by the Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on the right to restitution, compensation and
rehabilitation for victims of grave violations of human rights and fundamental freedoms. A
special administrative tribunal for this purpose should be set up with a limited time-frame
since many of the victims are of a very advanced age;
(c) Make a full disclosure of documents and materials in its possession with regard to
comfort stations and other related activities of the Japanese Imperial Army during the
Second World War;
(d) Make a public apology in writing to individual women who have come forward and can
be substantiated as women victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational curricula to reflect historical
realities;
(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and
institutionalization of comfort stations during the Second World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities, also presented a report to the Sub-Committee
on June 22, 1998 entitled Contemporary Forms of Slavery: Systematic Rape, Sexual
Slavery and Slavery-like Practices During Armed Conflict. The report included an appendix
entitled An Analysis of the Legal Liability of the Government of Japan for 'Comfort Women
Stations' established during the Second World War, 30 which contained the following
findings:
68. The present report concludes that the Japanese Government remains liable for grave
violations of human rights and humanitarian law, violations that amount in their totality to
crimes against humanity. The Japanese Government’s arguments to the contrary,
including arguments that seek to attack the underlying humanitarian law prohibition of
enslavement and rape, remain as unpersuasive today as they were when they were first
raised before the Nuremberg war crimes tribunal more than 50 years ago. In addition, the
Japanese Government’s argument that Japan has already settled all claims from the
Second World War through peace treaties and reparations agreements following the war
remains equally unpersuasive. This is due, in large part, to the failure until very recently of
the Japanese Government to admit the extent of the Japanese military’s direct involvement
in the establishment and maintenance of these rape centres. The Japanese Government’s
silence on this point during the period in which peace and reparations agreements
between Japan and other Asian Governments were being negotiated following the end of
the war must, as a matter of law and justice, preclude Japan from relying today on these
peace treaties to extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the cessation of
hostilities is a testament to the degree to which the lives of women continue to be
undervalued. Sadly, this failure to address crimes of a sexual nature committed on a
massive scale during the Second World War has added to the level of impunity with which
similar crimes are committed today. The Government of Japan has taken some steps to
apologize and atone for the rape and enslavement of over 200,000 women and girls who
were brutalized in "comfort stations" during the Second World War. However, anything less
than full and unqualified acceptance by the Government of Japan of legal liability and the
consequences that flow from such liability is wholly inadequate. It must now fall to the
Government of Japan to take the necessary final steps to provide adequate redress.
The UN, since then, has not taken any official action directing Japan to provide the
reparations sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal"
established by a number of Asian women and human rights organizations, supported by
an international coalition of non-governmental organizations.31 First proposed in 1998, the
WIWCT convened in Tokyo in 2000 in order to "adjudicate Japan's military sexual violence,
in particular the enslavement of comfort women, to bring those responsible for it to justice,
and to end the ongoing cycle of impunity for wartime sexual violence against women."
After examining the evidence for more than a year, the "tribunal" issued its verdict on
December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty of
crimes against humanity for the rape and sexual slavery of women.32 It bears stressing,
however, that although the tribunal included prosecutors, witnesses, and judges, its
judgment was not legally binding since the tribunal itself was organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California, along with six co-
sponsor representatives, introduced House Resolution 121 which called for Japanese
action in light of the ongoing struggle for closure by former comfort women. The Resolution
was formally passed on July 30, 2007,33 and made four distinct demands:
[I]t is the sense of the House of Representatives that the Government of Japan (1) should
formally acknowledge, apologize, and accept historical responsibility in a clear and
unequivocal manner for its Imperial Armed Forces' coercion of young women into sexual
slavery, known to the world as "comfort women", during its colonial and wartime
occupation of Asia and the Pacific Islands from the 1930s through the duration of World
War II; (2) would help to resolve recurring questions about the sincerity and status of prior
statements if the Prime Minister of Japan were to make such an apology as a public
statement in his official capacity; (3) should clearly and publicly refute any claims that the
sexual enslavement and trafficking of the "comfort women" for the Japanese Imperial Army
never occurred; and (4) should educate current and future generations about this horrible
crime while following the recommendations of the international community with respect to
the "comfort women."34
In December 2007, the European Parliament, the governing body of the European Union,
drafted a resolution similar to House Resolution 121. 35 Entitled, "Justice for Comfort
Women," the resolution demanded: (1) a formal acknowledgment of responsibility by the
Japanese government; (2) a removal of the legal obstacles preventing compensation; and
(3) unabridged education of the past. The resolution also stressed the urgency with which
Japan should act on these issues, stating: "the right of individuals to claim reparations
against the government should be expressly recognized in national law, and cases for
reparations for the survivors of sexual slavery, as a crime under international law, should
be prioritized, taking into account the age of the survivors."
The Canadian and Dutch parliaments have each followed suit in drafting resolutions
against Japan. Canada's resolution demands the Japanese government to issue a formal
apology, to admit that its Imperial Military coerced or forced hundreds of thousands of
women into sexual slavery, and to restore references in Japanese textbooks to its war
crimes.36 The Dutch parliament's resolution calls for the Japanese government to uphold
the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdom’s Parliament also produced a report
in November, 2008 entitled, "Global Security: Japan and Korea" which concluded that
Japan should acknowledge the pain caused by the issue of comfort women in order to
ensure cooperation between Japan and Korea.
Statements of Remorse made by representatives of the Japanese government
Various officials of the Government of Japan have issued the following public statements
concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study on the issue of wartime "comfort
women" since December 1991. I wish to announce the findings as a result of that study.
As a result of the study which indicates that comfort stations were operated in extensive
areas for long periods, it is apparent that there existed a great number of comfort women.
Comfort stations were operated in response to the request of the military authorities of the
day. The then Japanese military was, directly or indirectly, involved in the establishment
and management of the comfort stations and the transfer of comfort women. The
recruitment of the comfort women was conducted mainly by private recruiters who acted in
response to the request of the military. The Government study has revealed that in many
cases they were recruited against their own will, through coaxing coercion, etc., and that,
at times, administrative/military personnel directly took part in the recruitments. They lived
in misery at comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were transferred to the war areas, excluding
those from Japan, those from the Korean Peninsula accounted for a large part. The
Korean Peninsula was under Japanese rule in those days, and their recruitment, transfer,
control, etc., were conducted generally against their will, through coaxing, coercion, etc.
Undeniably, this was an act, with the involvement of the military authorities of the day, that
severely injured the honor and dignity of many women. The Government of Japan would
like to take this opportunity once again to extend its sincere apologies and remorse to all
those, irrespective of place of origin, who suffered immeasurable pain and incurable
physical and psychological wounds as comfort women.
It is incumbent upon us, the Government of Japan, to continue to consider seriously, while
listening to the views of learned circles, how best we can express this sentiment.
We shall face squarely the historical facts as described above instead of evading them,
and take them to heart as lessons of history. We hereby reiterated our firm determination
never to repeat the same mistake by forever engraving such issues in our memories
through the study and teaching of history.
As actions have been brought to court in Japan and interests have been shown in this
issue outside Japan, the Government of Japan shall continue to pay full attention to this
matter, including private researched related thereto.
b) Prime Minister Tomiichi Murayama’s Statement in 1994
On the issue of wartime "comfort women", which seriously stained the honor and dignity of
many women, I would like to take this opportunity once again to express my profound and
sincere remorse and apologies"
c) Letters from the Prime Minister of Japan to Individual Comfort Women
The issue of comfort women, with the involvement of the Japanese military authorities at
that time, was a grave affront to the honor and dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse to
all the women who endured immeasurable and painful experiences and suffered incurable
physical and psychological wounds as comfort women.
I believe that our country, painfully aware of its moral responsibilities, with feelings of
apology and remorse, should face up squarely to its past history and accurately convey it
to future generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005
Solemnly reflecting upon the many instances of colonial rule and acts of aggression that
occurred in modern world history, and recognizing that Japan carried out such acts in the
past and inflicted suffering on the people of other countries, especially in Asia, the
Members of this House hereby express deep remorse. (Resolution of the House of
Representatives adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions last year, and recently as well, and to
the press. I have been consistent. I will stand by the Kono Statement. This is our
consistent position. Further, we have been apologizing sincerely to those who suffered
immeasurable pain and incurable psychological wounds as comfort women. Former Prime
Ministers, including Prime Ministers Koizumi and Hashimoto, have issued letters to the
comfort women. I would like to be clear that I carry the same feeling. This has not changed
even slightly. (Excerpt from Remarks by Prime Minister Abe at an Interview by NHK, March
11, 2007).
I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated
in the statement by the Chief Cabinet Secretary Kono. (Excerpt from Remarks by Prime
Minister Abe at the Budget Committee, the House of Councilors, the Diet of Japan, March
26, 2007).
I am deeply sympathetic to the former comfort women who suffered hardships, and I have
expressed my apologies for the extremely agonizing circumstances into which they were
placed. (Excerpt from Telephone Conference by Prime Minister Abe to President George
W. Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to those people who were taken
as wartime comfort women. As a human being, I would like to express my sympathies, and
also as prime minister of Japan I need to apologize to them. My administration has been
saying all along that we continue to stand by the Kono Statement. We feel responsible for
having forced these women to go through that hardship and pain as comfort women under
the circumstances at the time. (Excerpt from an interview article "A Conversation with
Shinzo Abe" by the Washington Post, April 22, 2007).
x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to all
those who suffered extreme hardships as comfort women; and I expressed my apologies
for the fact that they were forced to endure such extreme and harsh conditions. Human
rights are violated in many parts of the world during the 20th Century; therefore we must
work to make the 21st Century a wonderful century in which no human rights are violated.
And the Government of Japan and I wish to make significant contributions to that end.
(Excerpt from Prime Minister Abe's remarks at the Joint Press Availability after the summit
meeting at Camp David between Prime Minister Abe and President Bush, April 27, 2007).
The Asian Women's Fund
Established by the Japanese government in 1995, the AWF represented the government's
concrete attempt to address its moral responsibility by offering monetary compensation to
victims of the comfort women system.37 The purpose of the AWF was to show atonement
of the Japanese people through expressions of apology and remorse to the former wartime
comfort women, to restore their honor, and to demonstrate Japan’s strong respect for
women.38
The AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying ¥2 million (approximately $20,000) to each
woman; (2) medical and welfare support programs, paying ¥2.5-3 million ($25,000-$30,000)
for each woman; and (3) a letter of apology from the Japanese Prime Minister to each
woman. Funding for the program came from the Japanese government and private
donations from the Japanese people. As of March 2006, the AWF provided ¥700 million
(approximately $7 million) for these programs in South Korea, Taiwan, and the Philippines;
¥380 million (approximately $3.8 million) in Indonesia; and ¥242 million (approximately
$2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for former comfort women. Over
the next five years, these were implemented by the Department of Social Welfare and
Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive Department
committed grave abuse of discretion in not espousing petitioners’ claims for official apology
and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department has the exclusive
prerogative to determine whether to espouse petitioners’ claims against Japan.
Baker v. Carr39 remains the starting point for analysis under the political question doctrine.
There the US Supreme Court explained that:
x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it,
or the impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion; or the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by various departments
on question.
In Tañada v. Cuenco,40 we held that political questions refer "to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure."
Certain types of cases often have been found to present political questions. 41 One such
category involves questions of foreign relations. It is well-established that "[t]he conduct of
the foreign relations of our government is committed by the Constitution to the executive
and legislative--'the political'--departments of the government, and the propriety of what
may be done in the exercise of this political power is not subject to judicial inquiry or
decision."42 The US Supreme Court has further cautioned that decisions relating to foreign
policy
are delicate, complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they advance or
imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities
nor responsibility.43
To be sure, not all cases implicating foreign relations present political questions, and
courts certainly possess the authority to construe or invalidate treaties and executive
agreements.44 However, the question whether the Philippine government should espouse
claims of its nationals against a foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our Constitution not to the courts but to
the political branches. In this case, the Executive Department has already decided that it is
to the best interest of the country to waive all claims of its nationals for reparations against
Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to
question. Neither could petitioners herein assail the said determination by the Executive
Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,45 the US Supreme Court held
that "[t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations."
It is quite apparent that if, in the maintenance of our international relations, embarrassment
-- perhaps serious embarrassment -- is to be avoided and success for our aims achieved,
congressional legislation which is to be made effective through negotiation and inquiry
within the international field must often accord to the President a degree of discretion and
freedom from statutory restriction which would not be admissible where domestic affairs
alone involved. Moreover, he, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this true in time of war. He
has his confidential sources of information. He has his agents in the form of diplomatic,
consular and other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v. Executive
Secretary46 and Pimentel v. Executive Secretary;47 its overreaching principle was, perhaps,
best articulated in (now Chief) Justice Puno’s dissent in Secretary of Justice v. Lantion: 48
x x x The conduct of foreign relations is full of complexities and consequences, sometimes
with life and death significance to the nation especially in times of war. It can only be
entrusted to that department of government which can act on the basis of the best
available information and can decide with decisiveness. x x x It is also the President who
possesses the most comprehensive and the most confidential information about foreign
countries for our diplomatic and consular officials regularly brief him on meaningful events
all over the world. He has also unlimited access to ultra-sensitive military intelligence data.
In fine, the presidential role in foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay,
validity of his actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state relations, forfeiture
of confidence, national embarrassment and a plethora of other problems with equally
undesirable consequences.
The Executive Department has determined that taking up petitioners’ cause would be
inimical to our country’s foreign policy interests, and could disrupt our relations with Japan,
thereby creating serious implications for stability in this region. For us to overturn the
Executive Department’s determination would mean an assessment of the foreign policy
judgments by a coordinate political branch to which authority to make that judgment has
been constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine government was
without authority to negotiate the Treaty of Peace with Japan. And it is equally true that,
since time immemorial, when negotiating peace accords and settling international claims:
x x x [g]overnments have dealt with x x x private claims as their own, treating them as
national assets, and as counters, `chips', in international bargaining. Settlement
agreements have lumped, or linked, claims deriving from private debts with others that
were intergovernmental in origin, and concessions in regard to one category of claims
might be set off against concessions in the other, or against larger political considerations
unrelated to debts.49
Indeed, except as an agreement might otherwise provide, international settlements
generally wipe out the underlying private claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton,50 a case brought by a British subject to recover a debt
confiscated by the Commonwealth of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war, and that after peace
is concluded, neither the matter in dispute, nor the conduct of either party, during the war,
can ever be revived, or brought into contest again. All violences, injuries, or damages
sustained by the government, or people of either, during the war, are buried in oblivion;
and all those things are implied by the very treaty of peace; and therefore not necessary to
be expressed. Hence it follows, that the restitution of, or compensation for, British property
confiscated, or extinguished, during the war, by any of the United States, could only be
provided for by the treaty of peace; and if there had been no provision, respecting these
subjects, in the treaty, they could not be agitated after the treaty, by the British government,
much less by her subjects in courts of justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty is certainly nothing new. For
instance, in Dames & Moore v. Regan,51 the US Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by nationals of one country
against the government of another country are "sources of friction" between the two
sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796
(1942). To resolve these difficulties, nations have often entered into agreements settling
the claims of their respective nationals. As one treatise writer puts it, international
agreements settling claims by nationals of one state against the government of another
"are established international practice reflecting traditional international theory." L. Henkin,
Foreign Affairs and the Constitution 262 (1972). Consistent with that principle, the United
States has repeatedly exercised its sovereign authority to settle the claims of its nationals
against foreign countries. x x x Under such agreements, the President has agreed to
renounce or extinguish claims of United States nationals against foreign governments in
return for lump-sum payments or the establishment of arbitration procedures. To be sure,
many of these settlements were encouraged by the United States claimants themselves,
since a claimant's only hope of obtaining any payment at all might lie in having his
Government negotiate a diplomatic settlement on his behalf. But it is also undisputed that
the "United States has sometimes disposed of the claims of its citizens without their
consent, or even without consultation with them, usually without exclusive regard for their
interests, as distinguished from those of the nation as a whole." Henkin, supra, at 262-263.
Accord, Restatement (Second) of Foreign Relations Law of the United States § 213
(1965) (President "may waive or settle a claim against a foreign state x x x [even] without
the consent of the [injured] national"). It is clear that the practice of settling claims
continues today.
Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the suffering caused by Japanese aggression
during the war, not for the payment of adequate reparations, but for security purposes. The
treaty sought to prevent the spread of communism in Japan, which occupied a strategic
position in the Far East. Thus, the Peace Treaty compromised individual claims in the
collective interest of the free world.
This was also the finding in a similar case involving American victims of Japanese slave
labor during the war.52 In a consolidated case in the Northern District of California, 53 the
court dismissed the lawsuits filed, relying on the 1951 peace treaty with Japan, 54 because
of the following policy considerations:
The official record of treaty negotiations establishes that a fundamental goal of the
agreement was to settle the reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes clear, it was well understood
that leaving open the possibility of future claims would be an unacceptable impediment to
a lasting peace:
Reparation is usually the most controversial aspect of peacemaking. The present peace is
no exception.
On the one hand, there are claims both vast and just. Japan's aggression caused
tremendous cost, losses and suffering.
On the other hand, to meet these claims, there stands a Japan presently reduced to four
home islands which are unable to produce the food its people need to live, or the raw
materials they need to work. x x x
The policy of the United States that Japanese liability for reparations should be sharply
limited was informed by the experience of six years of United States-led occupation of
Japan. During the occupation the Supreme Commander of the Allied Powers (SCAP) for
the region, General Douglas MacArthur, confiscated Japanese assets in conjunction with
the task of managing the economic affairs of the vanquished nation and with a view to
reparations payments. It soon became clear that Japan's financial condition would render
any aggressive reparations plan an exercise in futility. Meanwhile, the importance of a
stable, democratic Japan as a bulwark to communism in the region increased. At the end
of 1948, MacArthur expressed the view that "[t]he use of reparations as a weapon to retard
the reconstruction of a viable economy in Japan should be combated with all possible
means" and "recommended that the reparations issue be settled finally and without delay."
That this policy was embodied in the treaty is clear not only from the negotiations history
but also from the Senate Foreign Relations Committee report recommending approval of
the treaty by the Senate. The committee noted, for example:
Obviously insistence upon the payment of reparations in any proportion commensurate
with the claims of the injured countries and their nationals would wreck Japan's economy,
dissipate any credit that it may possess at present, destroy the initiative of its people, and
create misery and chaos in which the seeds of discontent and communism would flourish.
In short, [it] would be contrary to the basic purposes and policy of x x x the United States x
x x.
We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general
principle – and particularly here, where such an extraordinary length of time has lapsed
between the treaty’s conclusion and our consideration – the Executive must be given
ample discretion to assess the foreign policy considerations of espousing a claim against
Japan, from the standpoint of both the interests of the petitioners and those of the Republic,
and decide on that basis if apologies are sufficient, and whether further steps are
appropriate or necessary.
The Philippines is not under any international obligation to espouse petitioners’ claims.
In the international sphere, traditionally, the only means available for individuals to bring a
claim within the international legal system has been when the individual is able to
persuade a government to bring a claim on the individual’s behalf. 55 Even then, it is not the
individual’s rights that are being asserted, but rather, the state’s own rights. Nowhere is
this position more clearly reflected than in the dictum of the Permanent Court of
International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
right to ensure, in the person of its subjects, respect for the rules of international law. The
question, therefore, whether the present dispute originates in an injury to a private interest,
which in point of fact is the case in many international disputes, is irrelevant from this
standpoint. Once a State has taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is sole claimant. 56
Since the exercise of diplomatic protection is the right of the State, reliance on the right is
within the absolute discretion of states, and the decision whether to exercise the discretion
may invariably be influenced by political considerations other than the legal merits of the
particular claim.57 As clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits prescribed by international law, a
State may exercise diplomatic protection by whatever means and to whatever extent it
thinks fit, for it is its own right that the State is asserting. Should the natural or legal person
on whose behalf it is acting consider that their rights are not adequately protected, they
have no remedy in international law. All they can do is resort to national law, if means are
available, with a view to furthering their cause or obtaining redress. The municipal
legislator may lay upon the State an obligation to protect its citizens abroad, and may also
confer upon the national a right to demand the performance of that obligation, and clothe
the right with corresponding sanctions.1awwphi1 However, all these questions remain
within the province of municipal law and do not affect the position
internationally.58 (Emphasis supplied)
The State, therefore, is the sole judge to decide whether its protection will be granted, to
what extent it is granted, and when will it cease. It retains, in this respect, a discretionary
power the exercise of which may be determined by considerations of a political or other
nature, unrelated to the particular case.
The International Law Commission’s (ILC’s) Draft Articles on Diplomatic Protection fully
support this traditional view. They (i) state that "the right of diplomatic protection belongs to
or vests in the State,"59 (ii) affirm its discretionary nature by clarifying that diplomatic
protection is a "sovereign prerogative" of the State; 60 and (iii) stress that the state "has the
right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do so." 61
It has been argued, as petitioners argue now, that the State has a duty to protect its
nationals and act on his/her behalf when rights are injured. 62 However, at present, there is
no sufficient evidence to establish a general international obligation for States to exercise
diplomatic protection of their own nationals abroad. 63 Though, perhaps desirable, neither
state practice nor opinio juris has evolved in such a direction. If it is a duty internationally, it
is only a moral and not a legal duty, and there is no means of enforcing its
fulfillment.641avvphi1
We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international
law.65 However, petitioners take quite a theoretical leap in claiming that these proscriptions
automatically imply that that the Philippines is under a non-derogable obligation to
prosecute international crimes, particularly since petitioners do not demand the imputation
of individual criminal liability, but seek to recover monetary reparations from the state of
Japan. Absent the consent of states, an applicable treaty regime, or a directive by the
Security Council, there is no non-derogable duty to institute proceedings against Japan.
Indeed, precisely because of states’ reluctance to directly prosecute claims against
another state, recent developments support the modern trend to empower individuals to
directly participate in suits against perpetrators of international crimes.66 Nonetheless,
notwithstanding an array of General Assembly resolutions calling for the prosecution of
crimes against humanity and the strong policy arguments warranting such a rule, the
practice of states does not yet support the present existence of an obligation to prosecute
international crimes.67 Of course a customary duty of prosecution is ideal, but we cannot
find enough evidence to reasonably assert its existence. To the extent that any state
practice in this area is widespread, it is in the practice of granting amnesties, immunity,
selective prosecution, or de facto impunity to those who commit crimes against
humanity."68
Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the
duty to prosecute perpetrators of international crimes is an erga omnes obligation or has
attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used as
a legal term describing obligations owed by States towards the community of states as a
whole. The concept was recognized by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of a State towards
the international community as a whole, and those arising vis-à-vis another State in the
field of diplomatic protection. By their very nature, the former are the concern of all States.
In view of the importance of the rights involved, all States can be held to have a legal
interest in their protection; they are obligations erga
omnes.http://www.search.com/reference/Erga_omnes - _note-0#_note-0
Such obligations derive, for example, in contemporary international law, from the outlawing
of acts of aggression, and of genocide, as also from the principles and rules concerning
the basic rights of the human person, including protection from slavery and racial
discrimination. Some of the corresponding rights of protection have entered into the body
of general international law … others are conferred by international instruments of a
universal or quasi-universal character.
The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of those
sharing a belief in the emergence of a value-based international public order. However, as
is so often the case, the reality is neither so clear nor so bright. Whatever the relevance of
obligations erga omnes as a legal concept, its full potential remains to be realized in
practice.69

The term is closely connected with the international law concept of jus cogens. In
international law, the term "jus cogens" (literally, "compelling law") refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus cogens
norms are considered peremptory in the sense that they are mandatory, do not admit
derogation, and can be modified only by general international norms of equivalent
authority.70

Early strains of the jus cogens doctrine have existed since the 1700s, 71 but peremptory
norms began to attract greater scholarly attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden Treaties in International Law. 72 The
recognition of jus cogens gained even more force in the 1950s and 1960s with the ILC’s
preparation of the Vienna Convention on the Law of Treaties (VCLT). 73 Though there was
a consensus that certain international norms had attained the status of jus cogens, 74 the
ILC was unable to reach a consensus on the proper criteria for identifying peremptory
norms.
578 F.3d 1052 (2009)

After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that "there is not as yet any generally accepted criterion by which to
identify a general rule of international law as having the character of jus cogens." 75 In a
commentary accompanying the draft convention, the ILC indicated that "the prudent
course seems to be to x x x leave the full content of this rule to be worked out in State
practice and in the jurisprudence of international tribunals." 76 Thus, while the existence of
jus cogens in international law is undisputed, no consensus exists on its
substance,77 beyond a tiny core of principles and rules.78
Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to
comprehend the unimaginable horror they underwent at the hands of the Japanese
soldiers. We are also deeply concerned that, in apparent contravention of fundamental
principles of law, the petitioners appear to be without a remedy to challenge those that
have offended them before appropriate fora. Needless to say, our government should take
the lead in protecting its citizens against violation of their fundamental human rights.
Regrettably, it is not within our power to order the Executive Department to take up the
petitioners’ cause. Ours is only the power to urge and exhort the Executive Department to
take up petitioners’ cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED. MARIANO C. DEL CASTILLO
Vazken MOVSESIAN; Harry Arzoumanian; Garo Ayaltin; Miran Khagerian; Ara
Khajerian, individually and on behalf of all others similarly situated including
thousands of senior citizens, disabled persons, and orphans as well as on behalf of
the general public and acting in the public interest, Plaintiffs-Appellees,
v.
VICTORIA VERSICHERUNG AG, a German corporation; Ergo Versicherungsgruppe
AG, a German corporation, Defendants, and
Munchener Ruckversicherungs-Gesellschaft Aktiengesellschaft AG, a German
corporation, Defendant-Appellant.
No. 07-56722.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 8, 2008.
Filed August 20, 2009.
*1053 Neil Michael Soltman, Los Angeles, CA, for the defendant/appellant.
Brian S. Kabateck, Los Angeles, CA, for the plaintiffs/appellees.
Before: HARRY PREGERSON, D.W. NELSON and DAVID R. THOMPSON, Circuit
Judges.
Opinion by Judge THOMPSON; Dissent by Judge PREGERSON.
THOMPSON, Senior Circuit Judge:
Section 354.4 of the California Code of Civil Procedure extends the statute of limitations
until 2010 for claims arising out of life insurance policies issued to "Armenian Genocide
victim[s]." Cal.Civ.Proc.Code § 354.4(c) (West 2006). The primary issue in this appeal is
whether § 354.4 interferes with the national government's conduct of foreign relations. We
conclude that it does, and accordingly, we hold that the California statute is preempted.
The district court's order denying the Rule 12(b)(6) motion to dismiss is reversed.
*1054 I. Background
In 2000, the California Legislature enacted Senate Bill 1915, which amended California's
Code of Civil Procedure to provide California courts with jurisdiction over certain classes of
claims arising out of insurance policies that were held by "Armenian Genocide vitcim[s]."
Sen. Bill No. 1915 (1999-2000 Reg. Sess.), 2000 Cal. Legis. Serv. 543 (West 2000),
codified at Cal.Civ.Proc.Code § 354.4. The Bill also amended the Code to extend the
statute of limitations for such claims until December 31, 2010. Id. Section 354.4, in its
entirety, provides:
(a) The following definitions govern the construction of this section:
(1) "Armenian Genocide victim" means any person of Armenian or
other ancestry living in the Ottoman Empire during the period of 1915
to 1923, inclusive, who died, was deported, or escaped to avoid
persecution during that period.
(2) "Insurer" means an insurance provider doing business in the state,
or whose contacts in the state satisfy the constitutional requirements
for jurisdiction, that sold life, property, liability, health, annuities, dowry,
educational, casualty, or any other insurance covering persons or
property to persons in Europe or Asia at any time between 1875 and
1923.
(b) Notwithstanding any other provision of law, any Armenian
Genocide victim, or heir or beneficiary of an Armenian Genocide
victim, who resides in this state and has a claim arising out of an
insurance policy or policies purchased or in effect in Europe or Asia
between 1875 and 1923 from an insurer described in paragraph (2) of
subdivision (a), may bring a legal action or may continue a pending
legal action to recover on that claim in any court of competent
jurisdiction in this state, which court shall be deemed the proper forum
for that action until its completion or resolution.
(c) Any action, including any pending action brought by an Armenian
Genocide victim or the heir or beneficiary of an Armenian Genocide
victim, whether a resident or nonresident of this state, seeking benefits
under the insurance policies issued or in effect between 1875 and
1923 shall not be dismissed for failure to comply with the applicable
statute of limitation, provided the action is filed on or before December
31, 2010.
(d) The provisions of this section are severable. If any provision of this
section or its application is held invalid, that invalidity shall not affect
other provisions or applications that can be given effect without the
invalid provision or application.
In the legislative findings accompanying the statute, the Legislature provides formal
recognition to an "Armenian Genocide":
The Legislature recognizes that during the period from 1915 to 1923,
many persons of Armenian ancestry residing in the historic Armenian
homeland then situated in the Ottoman Empire were victims of
massacre, torture, starvation, death marches, and exile. This period is
known as the Armenian Genocide.
Sen. Bill No.1915 at § 1.
Section 354.4 was modeled after §§ 354.5 and 354.6, which extended the statute of
limitations until 2010 for Holocaust-era insurance claims and World War II slave labor
claims, respectively. Sen. Jud. Com., analysis of Sen. Bill No. 1915 (1999-2000 Reg.
Sess.) May 9, 2000, pp. 2, 4. Both of these sister statutes have been found
unconstitutional, because they interfered with the national government's foreign affairs
power. Deustch v. Turner, 324 F.3d 692, 716 (9th Cir.2003) (finding § 354.6
unconstitutional); Steinberg v. Int. *1055 Comm. on Holocaust Era Ins. Claims, 133 Cal.
App. 4th 689, 34 Cal. Rptr. 3d 944, 953 (2005) (finding § 354.5 unconstitutional).
In December 2003, Vazken Movsesian ("Movsesian") filed this class action against Victoria
Verisherung AG ("Victoria"), Ergo Verischerungsgruppe AG ("Ergo"), and Munchener
Ruckverischerungs-Gesellschaft Aktiengesellschaft ("Munich Re"). Movsesian and his
fellow class members are persons of Armenian descent who claim benefits from insurance
policies issued by Victoria and Ergo. Munich Re is the parent company of Victoria and
Ergo. Movsesian seeks damages from all three companies for breach of written contract,
breach of the covenant of good faith and fair dealing, unjust enrichment, and other related
claims. Munich Re filed a Rule 12(b)(6) motion to dismiss the claims, arguing that the class
members lacked standing to bring claims under § 354.4, and contending that it was not a
proper defendant under § 354.4. Munich Re also challenged the constitutionality of § 354.4,
on the grounds that it violated the due process clause of the United States Constitution
and was preempted under the foreign affairs doctrine.
The district court granted Munich Re's motion to dismiss the claims for unjust enrichment
and constructive trust, and denied Munich Re's motion to dismiss the claims for breach of
contract and breach of the covenant of fair dealing. The court held that the class members
had standing to bring their claims, and that Munich Re was a proper defendant under §
354.4. The court rejected Munich Re's due process challenge, and held that § 354.4 was
not preempted under the foreign affairs doctrine.
Munich Re filed a motion to certify the district court's order for interlocutory appeal, and to
stay the action pending appeal. The district court granted the motion, and stayed the case.
Within the ten-day window provided by 28 U.S.C. § 1292(b), Munich Re petitioned this
court for permission to pursue an interlocutory appeal, which we granted.
On appeal, the parties address three issues: first, whether § 354.4 is preempted under the
foreign affairs doctrine; second, whether Munich Re is a proper defendant; and third,
whether the Plaintiff-Appellees have standing to bring these claims.[1] We conclude that §
354.4 impermissibly infringes on the federal government's foreign affairs power, and is
preempted. We do not reach the other issues.
On December 4, 2008, our court received a letter from the Turkish Ambassador via
facsimile. Letter from Nabi Sensoy, the Turkish Republic's Ambassador to the United
States, to Molly Dwyer, Clerk of the United States Court of Appeals for the Ninth Circuit
(December 4, 2008). The letter expresses Turkey's opposition to § 354.4, and urges the
court to overturn the California statute. At oral argument, Munich Re asked us to take
judicial notice of the letter; Movsesian objected.
We decline to take judicial notice of the letter, because the letter was submitted after—and
apparently in response to—the district court's decision. See, e.g., Ctr. for Bio-Ethical
Reform, Inc. v. City and County of Honolulu, 455 F.3d 910, 918 n. 3 (2006) (declining to
take judicial notice of documents issued after the district court's decision). Even if we did
take notice of the letter, however, it would not alter our decision in this case.
II. Standard of Review
Appellate jurisdiction under § 1292(b) "applies to the order certified to *1056 the court of
appeals, and is not tied to the particular question formulated by the district court." Yamaha
Motor Corp., USA v. Calhoun, 516 U.S. 199, 205, 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996).
We have jurisdiction to decide all questions "fairly raised" by the issue under review. Lee v.
Am. Nat. Ins. Co., 260 F.3d 997, 1000-01 (9th Cir.2001). We will not address issues
outside the order appealed from, or issues not yet considered by the district court. Life Ins.
Co. v. Reichardt, 591 F.2d 499, 505-06 (9th Cir.1979).
We review de novo a district court's grant of a Rule 12(b)(6) motion to dismiss. Edwards v.
Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir.2004). All well-pleaded factual allegations
are to be construed in the light most favorable to the pleader, and accepted as true. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d
929 (2007); Johnson v. Riverside Healthcare System, 534 F.3d 1116, 1122 (9th Cir.2008).
Ultimately, "when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief, this basic deficiency should... be exposed at the point of minimum
expenditure of time and money by the parties and the court." Twombly, 127 S.Ct. at
1966(internal quotation marks omitted).
III. The Constitutionality of § 354.4 Under the Foreign Affairs Doctrine
This case presents the issue whether § 354.4 of the California Code of Civil Procedure
interferes with the national government's power to conduct foreign affairs. Munich Re
contends that § 354.4 is preempted under the foreign affairs doctrine in two ways: first, that
it is preempted by the Claims Agreement of 1922, and the War Claims Act of 1928; and
second, that it conflicts with the Executive Branch's policy prohibiting legislative recognition
of an "Armenian Genocide." We conclude that § 354.4 conflicts with Executive Branch
foreign policy, and thus, is preempted. We need not decide the questions whether § 354.4
is preempted by the Claims Agreement or the War Claims Act.
The Supreme Court has long recognized that the Executive Branch's foreign policy
preferences are entitled to preemptive weight when they take the form of executive
agreements. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 101 S. Ct. 2972, 69 L. Ed.
2d 918 (1981); United States v. Pink,315 U.S. 203, 62 S. Ct. 552, 86 L. Ed.
796 (1941); United States v. Belmont, 301 U.S. 324, 57 S. Ct. 758, 81 L. Ed. 1134 (1937).
In Garamendi, the Supreme Court recognized for the first time that "presidential foreign
policy" itself may carry the same preemptive force as a federal statute or treaty. Am. Ins.
Assoc. v. Garamendi, 539 U.S. 396, 421, 123 S. Ct. 2374, 156 L. Ed. 2d 376 (2003).
Unlike in previous cases, the presidential foreign policy was not contained in a single
executive agreement. Instead, the policy was "embod[ied]" in several executive
agreements, as well as in various letters and statements from executive branch officials at
congressional hearings. Id. at 421-23, 123 S. Ct. 2374. In sum, the Court held that in the
realm of foreign affairs, "[t]he exercise of the federal executive authority means that state
law must give way where ... there is evidence of clear conflict between the policies
adopted by the two." Id.
To determine whether California's Holocaust Victims Insurance Relief Act (HVIRA) was
preempted by presidential foreign policy, the Garamendi Court employed a traditional
conflict preemption analysis. Id. at 420-27, 123 S. Ct. 2374. First, the Court considered
whether there was an "express federal policy" on point. Id. at 420-25, 123 S. Ct. 2374.
Next, the Court analyzed whether the California statutory scheme posed a "clear
conflict." *1057 Id. at 425-27, 123 S. Ct. 2374. Here, just as in Garamendi, the "question
relevant to preemption in this case is conflict." And just as in Garamendi, "the evidence
here is more than sufficient to demonstrate that the state Act stands in the way of [the
President's] diplomatic objectives." Id. at 427, 123 S. Ct. 2374(citing Crosby v. Nat'l
Foreign Trade Council, 530 U.S. 363, 386, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (2000)).
1. Express Federal Policy
Munich Re contends that presidential foreign policy prohibits legislative recognition of an
"Armenian Genocide," and that this policy preempts § 354.4. In support of this argument,
Munich Re points to several failed House Resolutions, H.R. Res. 106, 110th Congress
(2007); H.R. Res. 193, 108th Congress (2003); H.R. Res. 596, 106th Congress (2000).
Each of these resolutions formally recognized the "Armenian Genocide." Each time, the
Administrations of President Bush and President Clinton took specific action, privately and
publicly, to defeat these measures.
a. House Resolution 596
House Resolution 596, entitled "Affirmation of the United States Record on the Armenian
Genocide Resolution," "[c]all[ed] upon the President to ensure that the foreign policy of the
United States reflects appropriate understanding and sensitivity concerning issues related
to human rights, ethnic cleansing, and genocide documented in the United States record
relating to the Armenian Genocide, and for other purposes." H.R. Res. 596, 106th Cong.
(2000). In support of the Resolution, the House passed a number of legislative findings,
including the following:
The Armenian Genocide was conceived and carried out by the
Ottoman Empire from 1915 to 1923, resulting in the deportation of
nearly 2,000,000 Armenians, of whom 1,500,000 men, women, and
children were killed, 500,000 survivors were expelled from their homes,
 and which succeeded in the elimination of the over 2,500-year
presence of Armenians in their historic homeland.
Id. at § 2(1). In all, the Resolution uses the phrase "Armenian Genocide" at least twenty-
four times.
President Clinton personally expressed his opposition to the Resolution in a letter to
Speaker Hastert. Letter to the Speaker of the House of Representatives on a Resolution
on Armenian Genocide, 3 Pub. Papers 2225-26 (Oct. 19, 2000). The President explained
the potential negative impact the Resolution would have on the nation's foreign policy
interests:
[I] am deeply concerned that consideration of H. Res. 596 at this time
could have far-reaching negative consequences for the United States.
We have significant interests in this troubled region of the world:
containing the threat posed by Saddam Hussein; working for peace
and stability in the Middle East and Central Asia; stabilizing the
Balkans; and developing new sources of energy. Consideration of the
resolution at this sensitive time will not only negatively affect those
interests, but could undermine efforts to encourage improved relations
between Armenia and Turkey—the very goal the Resolution's
sponsors seek to advance.
Id. In sum, President Clinton urged the Speaker "in the strongest terms not to bring this
Resolution to the floor at this time." Id.
In addition, several senior-level Administration officials sent letters to the Chairman of the
Committee on International Relations, reiterating the Administration's opposition to the
Resolution. H.R.Rep. No. 106-933, at 16-19 (2000). The Assistant Secretary of State
expressed the Administration's belief that "legislative measures" *1058 were not the
appropriate means of addressing the "sensitive issue" raised in the Resolution. Id. at 17.
The Secretary of Defense and the Undersecretary of Defense underscored the
Administration's concern that the Resolution "would complicate our efforts to build
relationships and protect our interests in the region and sustain our positive relationship
with a key, strategically placed ally." Id. at 16-18. The Resolution was reported out of
committee, but never brought to a vote on the floor.
b. House Resolution 193
In 2003, a general resolution "reaffirming support of the Convention on the Prevention and
Punishment of the Crime of Genocide" was introduced in the House. H.R. Res. 193, 108th
Cong. (2003). Unlike the other two resolutions discussed in this section, House Resolution
193 did not contain any legislative findings, or even any reference to Turkey or the
Ottoman Empire. Nevertheless, the Bush Administration strongly opposed it. The
Administration's opposition to House Resolution 193 was based solely on two words found
in the resolution: "Armenian Genocide." An official from the State Department explained:
I am writing to express the Administration's opposition to the wording
of H. Res. 193 of April 10, 2003 .... [W]e oppose HR 193's reference to
the "Armenian Genocide." Were this wording adopted it could
complicate our efforts to bring peace and stability to the Caucasus and
hamper ongoing attempts to bring about Turkish-Armenian
reconciliation. We continue to believe that fostering a productive
dialogue on these events is the best way for Turkey and Armenia to
build a positive and productive relationship. Declarations such as this
one, however, hinder rather than encourage the process.
H.R.Rep. No. 108-130, at 5-6 (2003). The Bush Administration echoed the Clinton
Administration's belief that "legislation on the issue is counterproductive." Id.at 6. This time,
the Resolution was reported out of committee and calendared, but was never actually
brought to a vote on the floor.
c. House Resolution 106
In 2007, the House entertained yet another resolution that would provide official
recognition to an "Armenian Genocide." House Resolution 106 was nearly
indistinguishable from House Resolution 596, discussed above. The Bush Administration
renewed its opposition to legislative recognition of an "Armenian Genocide" through a joint
letter from Secretary of State Condoleezza Rice and Secretary of Defense Robert Gates to
Speaker Nancy Pelosi. Letter from Condoleezza Rice, Sec'y of State, and Robert M. Gates,
Sec'y of Defense, to Nancy M. Pelosi, Speaker of the House of Representatives (March 7,
2001). The Secretaries sent an identical letter to the Minority Leader of the House,
Representative John Boehner. Letter from Condoleezza Rice, Sec'y of State, and Robert
M. Gates, Sec'y of Defense, to John A. Boehner, Minority Leader of the House of
Representatives (March 7, 2001).
In their joint letter, the Secretaries underscored the importance of Turkey's contributions to
the war in Iraq. See Letter from Condoleezza Rice and Robert Gates to Nancy
Pelosi, supra, at 2. The Secretaries noted that when the French Assembly voted in favor of
a similar bill, the Turkish military cut off contact with the French military and terminated
defense contracts under negotiation. Id. The Secretaries warned that "[a] similar reaction
by the Government of Turkey to a House resolution could harm American troops in the
field, constrain our ability to supply our troops in Iraq and Afghanistan, and significantly
damage our efforts to promote reconciliation *1059 between Armenia and Turkey[.]" Id. In
conclusion, the Secretaries "strongly urge[d] [the Speaker] to refrain from allowing the
resolution to reach the House floor." Id.
Despite the Secretaries' exhortations, the House Committee on Foreign Affairs passed a
motion to order the bill reported. H.R. Res. 106, 110th Cong. (as reported by H. Comm. on
Foreign Aff., Oct. 10, 2007). In response, President Bush made the following statement:
On another issue before Congress, I urge members to oppose the
Armenian genocide resolution now being considered by the House
Foreign Affairs Committee. We all deeply regret the tragic suffering of
the Armenian people that began in 1915. This resolution is not the
 right response to these historic mass killings, and its passage would
do great harm to our relations with a key ally in NATO and in the
global war on terror.
Press Release, White House Office of the Press Secretary, President Bush Discusses
Foreign Intelligence Surveillance Act Legislation (Oct. 10, 2007).
Following President Bush's statements, no further action was taken on the Resolution.
d. Emergence of the Express Policy
The foregoing account of negotiations between the Executive Branch and Congress, and
the public statements and letters of two Presidents, clearly establish a presidential foreign
policy preference against providing legislative recognition to an "Armenian Genocide."
The Garamendi Court relied on similar communications between the Administration and
state legislative and executive officials, in addition to several executive agreements, in
finding that HVIRA was preempted. Garamendi, 539 U.S. at 408-11, 123 S. Ct. 2374.
Unlike the presidential foreign policy at issue in Garamendi, the presidential foreign policy
in the present case is not embodied in any executive agreement. This does not, however,
detract from the policy's preemptive force. The executive agreements discussed
in Garamendi did not apply to all of the claims at issue, so they could not have been
central to the Court's finding of preemption in that case. Id. at 417, 123 S. Ct. 2374.
Furthermore, the preemptive power of the federal policy is not derived from the form of the
policy, but rather from the source of the executive branch's authority to act. Presidential
foreign policy only carries preemptive weight when the executive authority is validly
exercised—as measured by the tripartite framework set forth by Justice Jackson
in Youngstown. Medellín v. Texas, ___ U.S. ___, 128 S. Ct. 1346, 136972, 170 L. Ed. 2d
190 (2008) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S. Ct.
863, 96 L. Ed. 1153 (1952) (Jackson, J., concurring)). In prior cases where the presidential
policy at issue implicated criminal law (an area traditionally left to the states to regulate), or
foreign commerce (an area delegated by the Constitution to Congress), the Court has
refused to accord the policy preemptive effect. See, e.g., Medellín, 128 S.Ct. at 1369-
72; Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 329-30, 114 S. Ct.
2268, 129 L. Ed. 2d 244 (1994). Here, however, the presidential policy concerns national
security, a war in progress, and diplomatic relations with a foreign nation. The Constitution
squarely, if not solely, vests these powers with the Executive Branch. U.S. Const. art. II, §
2, cl. 1; id. at § 2, cl. 2; id. at § 3; see also Medellín, 128 S.Ct. at 1367 (holding that the
President has the "lead role" in making "sensitive foreign policy
decisions"); Garamendi, 539 U.S. at 414, 123 S. Ct. 2374; Deutsch, 324 F.3d at 708-09
(enumerating the foreign affairs *1060powers delegated by the Constitution to the
President).
The President acts well within his constitutionally delegated powers by developing and
enforcing the policy refusing to provide official recognition to an "Armenian Genocide."
Accordingly, the presidential policy is entitled to preemptive effect. See, e.g., Medellín, 128
S.Ct. at 1367 n. 13, 1367-71 (suggesting that the President, in the exercise of his Article II
powers, could take action which preempts conflicting state law, but refusing to find such
preemption in that case); cf. Barclays Bank PLC, 512 U.S. at 330, 114 S. Ct.
2268 ("Executive Branch communications that express federal policy but lack the force of
law cannot render unconstitutional California's otherwise valid, congressionally condoned,
use of worldwide combined reporting.").
Even if the policy implicated a power shared by the President and Congress, Congress's
documented deference in this case lends the presidential policy additional authority. See
Medellín, 128 S.Ct. at 1368; Youngstown, 343 U.S. at 637, 72 S. Ct. 863. The President
and his senior officials lobbied Congress, privately and publicly, to implement the policy.
Each time, Congress deferred to the President's authority, and did not bring the Resolution
to a vote. Under the Youngstown framework, this congressional acquiescence infuses the
President's authority to act with additional support. See Medellín, 128 S.Ct. at
1368; Youngstown, 343 U.S. at 637.
In sum, we conclude there is an express federal policy prohibiting legislative recognition of
an "Armenian Genocide," as embodied in the previously mentioned statements and letters
of the President and other high-ranking Executive Branch officials. This policy is a valid
exercise of the President's Article II powers. In light of this, and in light of Congress's
deference to the Executive Branch on this matter, the policy is entitled to preemptive
weight.
2. Clear Conflict
We next consider whether § 354.4 clearly conflicts with the presidential foreign policy
prohibiting legislative recognition of an Armenian Genocide. We conclude that it does. The
conflict is clear on the face of the statute: by using the phrase "Armenian Genocide,"
California has defied the President's foreign policy preferences.
The language of the California statute is very similar to that of the failed House Resolutions.
The California Legislature made the following findings in support of § 354.4:
The Legislature recognizes that during the period from 1915 to 1923,
many persons of Armenian ancestry residing in the historic Armenian
homeland then situated in the Ottoman Empire were victims of
massacre, torture, starvation, death marches, and exile. This period is
known as the Armenian Genocide.
This language closely parallels the legislative findings in House Resolutions 596 and 106,
which the Executive Branch vehemently opposed. Section 354.4 implicates the same
concerns raised by the Executive Branch in response to these resolutions.
Movsesian contends that given § 354.4's severability provision, the constitutionality of §
354.4(c) should be analyzed distinctly. Even assuming subsection (c) could be separated
from the constitutional deficiencies underlying the rest of the statute, the subsection would
still conflict with the federal policy at issue. Section 354.4(c) contains two references to the
"Armenian Genocide." As discussed above, the Executive Branch opposed House
Resolution 193 simply because it contained the phrase "Armenian Genocide." The heart of
§ 354.4's conflict with the presidential foreign *1061 policy lies in these two words. By
choosing to use the words "Armenian Genocide," § 354.4 directly contradicts the
President's express foreign policy preference.
Movsesian ridicules the idea that two words could have such a "talismanic" effect. The
symbolic effect of the words, however, is precisely the problem. The federal government
has made a conscious decision not to apply the politically charged label of "genocide" to
the deaths of these Armenians during World War I. Whether or not California agrees with
this decision, it may not contradict it. See Garamendi, 539 U.S. at 427, 123 S. Ct. 2374.
When it comes to dealings with foreign nations, "state lines disappear." Belmont, 301 U.S.
at 331, 57 S. Ct. 758. California may not assert a "distinct juristic personality." Pink, 315
U.S. at 230, 62 S. Ct. 552.
If § 354.4 provoked Turkey's ire, it is the nation as a whole—not just California —that would
suffer. "If state action could defeat or alter our foreign policy, serious consequences might
ensue. The nation as a whole would be held to answer if a State created difficulties with a
foreign power." Pink, 315 U.S. at 232, 62 S. Ct. 552. The Bush Administration warned that
American recognition of an "Armenian Genocide" could endanger America's alliance with
Turkey, and thus, our troops on the ground in Iraq. See Letter from Condoleezza Rice and
Robert Gates to Nancy Pelosi, supra at 2.
Section 354.4 also threatens to undermine the Executive Branch's diplomatic relations with
Turkey. States may not "compromise the very capability of the President to speak for the
nation with one voice in dealing with other governments." Garamendi, 539 U.S. at 424, 123
S. Ct. 2374. Here, § 354.4 "undercuts the President's diplomatic discretion and the choice
he has made in exercising it." Id. at 423-24, 123 S. Ct. 2374.
In Garamendi and Crosby, the Court struck down state statutes which undermined the
President's diplomatic discretion. Id.; Crosby v. Nat'l Foreign Trade Council, 530 U.S.
363, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (2000). By providing explicit recognition to the
"Armenian Genocide," § 354.4 threatens to have the same deleterious effect. The
Executive Branch chose to address the issue through the medium of presidential speeches,
not legislation: "The President believes that the proper way to address this issue and
express our feelings about it is through the presidential message and not through
legislation.... What [President Bush] wants is for the presidential message to be the thing
that stands for the American response to this, not legislation passed by the House of
Representatives." See Press Release, White House Office of the Press Secretary, Press
Briefing by Dana Perino (Oct. 11, 2007). California has done what Congress declined to do:
it has defied the President's foreign policy preferences, and has undermined the
President's diplomatic power.
Finally, we must address the district court's conclusion that the presidential policy
prohibiting Congress from recognizing an "Armenian Genocide" does not apply to
individual states. In support of this conclusion, the district court noted that thirty-nine other
states have passed legislation recognizing the "Armenian Genocide," and neither the
federal government nor Turkey expressed any opposition to these state statutes.
The district court's reasoning is not persuasive for several reasons. First, legislation
enacted by other states is irrelevant to the question of whether § 354.4 is preempted by
presidential foreign policy. Furthermore, there is no citation or evidence *1062 in the record
of these other thirty-nine state statutes which purportedly reference the "Armenian
Genocide."
Second, the fact that the federal government has not expressly prohibited states from
using the phrase "Armenian Genocide" is not outcome-determinative. In Deutsch, this
court rejected a similar argument, and refused to recognize a private cause of action for
war injuries. Though the relevant treaties did not expressly prohibit such actions,
the Deutsch court held that "[w]ithout [explicit] authorization, states lack the power to alter
the federal government's resolution of disputes relating to the war." Deutsch, 324 F.3d at
714. Though the instant case does not concern war injuries and reparations, Deutsch's
reasoning is still applicable. The power to conduct diplomatic relations and negotiations,
like the war powers, is vested exclusively with the federal government. U.S. Const. 11434
art. I, § 8; id. at art. II, § 3. Absent explicit authorization, states may not modify or alter the
nation's foreign policy. Deutsch, 324 F.3d at 713-14.
In sum, § 354.4 conflicts with the Executive Branch's clearly expressed foreign policy
refusing to provide official legislative recognition to the "Armenian Genocide." The
Executive Branch policy is entitled to preemptive weight, because the Executive has the
authority to make this policy, and Congress has deferred to the Executive's will in this
matter. Section 354.4 impermissibly impairs the President's ability to speak with one voice
for the nation in the realm of foreign affairs, and undermines his diplomatic authority.
As in Garamendi, the express presidential foreign policy and the clear conflict raised by §
354.4 are "alone enough to require state law to yield." Garamendi,539 U.S. at 425, 123 S.
Ct. 2374. The Garamendi Court, however, went on to consider the strength of California's
interest in enacting HVIRA, observing: "If any doubt about the clarity of the conflict
remained... it would have to be resolved in the National Government's favor, given the
weakness of the State's interest." Id. Accordingly, we will also address the strength of
California's interest in enacting § 354.4.
3. California's Interest in § 354.4
The district court erroneously held that § 354.4 was within the state's traditional area of
competence because it was a procedural rule extending the statute of limitations and
reviving previously barred claims. We explicitly rejected this reasoning in Deutsch.
Deutsch, 324 F.3d at 707 (repudiating Appellants' attempts to "characterize Section 354.6
as a purely procedural measure"). Nor is the statute saved by Movsesian's attempts to
characterize § 354.4 as quotidian insurance regulation. See Garamendi, 539 U.S. at 425-
26, 123 S. Ct. 2374 (rejecting purported state interest in regulating insurance business and
blue sky laws).
Courts have consistently looked past "superficial" state interests to ascertain true
legislative intent. See, e.g., Garamendi, 539 U.S. at 425-26, 123 S. Ct. 2374 (rejecting
purported state interest in regulating insurance business and blue sky laws); Crosby, 530
U.S. 363, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (rejecting purported state interest in taxing
and spending); Zschernig v. Miller, 389 U.S. 429, 437-38, 88 S. Ct. 664, 19 L. Ed. 2d
683 (1968) (rejecting purported state interest in regulating descent of
property); Deutsch, 324 F.3d at 707 (rejecting purported state interest in procedural rules).
Here, as in Deutsch and Garamendi, California's "real desiderata" is to provide a forum for
the victims of the "Armenian Genocide" and their heirs to seek justice. Garamendi, 539 U.S.
at 425, 123 S.Ct. *1063 2374; Deutsch, 324 F.3d at 707. By opening its doors as a forum
to all "Armenian Genocide" victims and their heirs and beneficiaries, California expresses
its dissatisfaction with the federal government's chosen foreign policy
path. Garamendi and Deutsch clearly hold that this is not a permissible state
interest. Garamendi, 539 U.S. at 427, 123 S. Ct. 2374; Deutsch, 324 F.3d at 712.
IV. Conclusion
California Code of Civil Procedure § 354.4 is preempted because it directly conflicts with
the Executive Branch's foreign policy refusing to provide official recognition to the
"Armenian Genocide." Far from concerning an area of traditional state interest, § 354.4
impinges upon the National Government's ability to conduct foreign affairs. The district
court's order denying the Rule 12(b)(6) motion to dismiss is REVERSED. This cause is
REMANDED to the district court for further proceedings consistent with this opinion.
PREGERSON, Circuit Judge, dissenting:
The majority holds that California's attempt to regulate insurance does not fall within the
realm of traditional state interests. I disagree. The legislative findings accompanying
California Code of Civil Procedure § 354.4 recognize that thousands of California residents
and citizens have often been deprived of their entitlement to benefits under certain
insurance policies. S.1915, 1999-2000 Reg. Sess. (Cal.2000) at § 1(b). "States have broad
authority to regulate the insurance industry." Am. Ins. Ass'n v. Garamendi, 539 U.S. 396,
434 n. 1, 123 S. Ct. 2374, 156 L. Ed. 2d 376 (2003) (Ginsberg, J. dissenting) (citation
omitted). California has not exceeded that authority merely by "assigning special
significance to an insurer's treatment arising out of a[] [particular] era...." Id. California's
interest in ensuring that its citizens are fairly treated by insurance companies over which
the State exercises jurisdiction is hardly a superficial one.
The strength of this traditional state interest weighs against preemption in a case, such as
the case before us, where there is doubt about the clarity of the conflict between state law
and federal policy. Indeed, there is no conflict. I can find no evidence of any express
federal policy forbidding states from using the term "Armenian Genocide." The majority
accurately states that the "federal government has made a conscious decision not to apply
the politically charged label of `genocide' to the deaths of [ ] Armenians during World War
I." Maj. Op. at 1061. Nowhere, however, does the majority point to any evidence of an
express federal policy barring states from so doing.
The majority's reliance on Deutsch v. Turner, 324 F.3d 692 (9th Cir.2003), is misplaced.
Whether California has, while acting within its authority to regulate the insurance industry,
intruded upon the province of the federal government has no bearing on the existence of,
or conflict with, an express federal policy applicable to the states.
There is no express federal policy forbidding California from using the term "Armenian
Genocide" in the course of exercising its traditional authority to regulate the insurance
industry. Accordingly, I dissent. I would affirm the district court.

NOTES
[1] Neither party addresses the due process issue on appeal.