In Praise of Lesser Evils
Can Realism Repair Foreign Policy?
As the United States grew from a small set of colonies into a global hegemon, so did the geographic reach of its laws. From civil law to criminal law to human rights law, U.S. statutes now govern activity in every corner of the globe. Indeed, as recent news attests, soccer officials in Europe, cybercriminals in China, and multinational corporations operating in Africa are well within the United States’ legal cross hairs. As a result, the judges charged with interpreting U.S. laws have become crucial players in the exercise of American power.
Some legal scholars and human rights activists have applauded this development, urging U.S. courts to police distant lands. In their view, U.S. judges are well situated—perhaps uniquely situated—to decide matters of international justice, international commerce, and even international relations. They want judges in San Francisco to weigh in on securities transactions in Scotland; judges in Tampa to issue opinions about torture allegations in Tanzania. To this group, laws transcend land.
But applying domestic laws in foreign lands is a tricky business. Indeed, as the world has become more interdependent and multipolar, the limits of the United States’ legal reach—as well as the limited competence of its courts to resolve geopolitical questions—have become more apparent. The tension is especially notable when it comes to the Alien Tort Statute (ATS), which was enacted by the First Congress in 1789 and promptly forgotten for nearly 200 years. In 1980, the court on which I sit, the U.S. Court of Appeals for the Second Circuit, revived the ATS, allowing federal courts to decide cases brought by foreigners—although not by U.S. citizens—against foreign defendants for violations of “the law of nations” committed on foreign soil. The decision was widely celebrated by human rights lawyers who now hoped to seek justice for the victims of heinous crimes and dissuade would-be perpetrators from committing future ones. Its true impact, unfortunately, was far less momentous. It is doubtful that ATS litigation ever prevented a single human rights violation; few evildoers are deterred by the distant threat of monetary damages in civil litigation. Instead, the ATS contributed to a perception of American judicial imperialism. The fact that the United States is the only country in the world to entertain such suits has only increased foreign resentment.
Within the past five years, the tide once again has turned. Recognizing that federal courts may have gone too far in adjudicating cases with little, if any, connection to the United States, the U.S. Supreme Court has reaffirmed that U.S. legislation applies only within the United States, unless Congress says otherwise. The most notable shift came in 2013, when the Court handed down its decision in Kiobel v. Royal Dutch Petroleum, a case concerning an oil conglomerate’s alleged role in abuses committed by the Nigerian military in the 1990s. In its decision, the Court limited the global reach of the ATS in order to prevent “foreign policy consequences not clearly intended by the political branches”—that is, the executive and legislative branches of the U.S. government.
As a general rule, U.S. laws belong within U.S. borders.
The Kiobel case was met with outrage in the human rights community. The advocacy group Human Rights First lamented that the Supreme Court had extinguished “a beacon of hope for victims of gross human rights violations.” The New York Times’ editorial board called the ruling a “giant setback for human rights.” And legal scholars in the United States and around the world bemoaned the shuttering of U.S. courts to claims of global injustice. According to these critics, American courts must play a pivotal role in the projection of American power.
Not so. When it comes to managing international relations, the bench should follow the lead of the executive and legislative branches. Indeed, this is the one area of U.S. foreign policy where “leading from behind” actually makes sense. The executive and legislative branches are far better situated to project global power, so judges should play a constrained, but not invisible, role in foreign affairs. As a general rule—absent an express congressional directive otherwise—U.S. laws belong within U.S. borders.
THE REACH OF THE LAW
Ever since George Washington’s presidency, isolationists and internationalists have engaged in a tug of war over the proper role of the federal courts in foreign policy. In 1793, Thomas Jefferson, then Washington’s secretary of state, sent 29 separate questions to the Supreme Court, formally requesting its advice on matters threatening U.S. neutrality in the ongoing war between France and Great Britain. The Supreme Court, uninterested in being a prime actor in foreign policy, politely declined to answer. Over two centuries later, this exchange is still cited as a precedent for the idea that there are certain cases that federal courts simply should not hear.
In a maritime case in 1812, the principle of judicial limitations in international matters was enshrined into law when the Supreme Court limited its own jurisdiction in issues involving the sovereignty of foreign nations. In its opinion, the Court introduced a critical legal term of art: “extraterritorial,” which means that a law has force abroad. Generally, the founders—and U.S. jurists up until the twentieth century—subscribed to what was known as the “Westphalian” tradition of territoriality, named after the 1648 treaty that created the modern state system. The concept links land and law, holding that a country’s courts have jurisdiction only where its flag flies.
This was a doctrine of legal nonintervention, and it was perfectly suited to a young and relatively weak republic. The United States had more to lose by abandoning this stance than it stood to gain by flexing its legal muscles globally. Although territoriality constrained the country’s ability to impose its law on others, it also ensured that others, particularly European powers, did not impose their laws on the United States. But as the United States expanded westward, it faced vexing challenges to this Westphalian conception of law. Were the territories that were conquered in the late 1840s during the Mexican War but not yet part of the union subject to U.S. laws? Did the state-granted “property rights” of a slave owner have extraterritorial effect if a slave escaped to a free state or territory? Far from being a mere philosophical inquiry, this last question sparked the Civil War.
Even as the United States began its economic and military ascent at the turn of the century, the judiciary continued to take a modest view of how far U.S. laws could reach. In 1909, the Supreme Court turned a preference against applying U.S. law abroad into a harder legal rule. Delivering the opinion in a case involving a dispute between two fruit companies operating in Latin America, Justice Oliver Wendell Holmes, Jr., formulated what came to be known as “the presumption against extraterritoriality.” The idea, as Holmes put it, was that “all legislation is prima facie territorial in nature.” Judges now had a default rule against applying U.S. statutes outside U.S. territory.
But as the United States emerged from World War II a global superpower, the pendulum swung in the other direction. Federal courts, busy interpreting the many New Deal regulations, were now more willing to exert authority over activities taking place overseas. Holmes’ presumption against extraterritoriality started down a path to obsolescence in 1945, when the Second Circuit introduced a competing doctrine—what came to be known as the “effects theory” of extraterritoriality. The concept was concerned primarily with whether the conduct of foreigners abroad caused harmful effects within the United States, and it led federal courts to dramatically expand the reach of U.S. law in areas of dispute as diverse as antitrust, securities, and employment. Foreigners who obeyed the law in their home countries now faced liability for violating U.S. statutes, even if all the relevant conduct was committed abroad. American laws had gone global.
Not surprisingly, U.S. allies and trading partners were not enthused. After all, one of the most frequently invoked justifications for the old Westphalian system of territoriality had been that it minimized conflicts between nations. Foreigners resented the rise of what one contributor to The Yale Law Journal called “Yankee jurisdictional jingoism.” For instance, in 2004, when the Supreme Court considered a case involving alleged anticompetitive practices in the vitamin industry, several of the United States’ closest trading partners—including Belgium, Canada, Germany, Japan, Ireland, the Netherlands, and the United Kingdom—submitted briefs expressing concern that U.S. judges had become the global arbiters of antitrust law, even when claims had little or no connection to the United States. Similar tensions arose in the context of the ATS. In 2007, after some South African citizens brought an ATS suit in New York federal court regarding conduct committed in their country under apartheid, Thabo Mbeki, then South Africa’s president, decried the United States’ “judicial imperialism.”
When it comes to foreign policy, judges are simply out of their depth.
Recognizing these complaints, the Supreme Court has recently revived Holmes’ presumption against extraterritoriality, in both securities law and human rights law. In Kiobel, it held that the ats does not apply extraterritorially, unless the alleged human rights violations “touch and concern the territory of the United States” with “sufficient force to displace the presumption against extraterritorial application.” The Court worried that extending the reach of U.S. law abroad could result in “clashes between our laws and those of other nations” and lead to “international discord.” In light of the substantial risk—and, indeed, the documented instances—of diplomatic strife, the Court held that if Congress wants the courts to apply the ats or any other statute abroad, then it must say so. In so many words, the Court declared that when it comes to foreign policy, judges are simply out of their depth.
JUDGES AND THE WORLD
The Supreme Court was right. Compared with the judiciary, the executive and legislative branches of the U.S. government are far better suited to handle questions affecting foreign policy. For one thing, the Constitution suggests as much. Although the phrases “foreign policy,” “foreign affairs,” and “international relations” appear nowhere in the Constitution, the founders prescribed a division of labor when it came to how the United States would interact with its peers. The president is the commander in chief and has the power to receive and appoint ambassadors and to make treaties. Congress, for its part, has the power to declare war, make rules governing the armed forces, and withhold funding for foreign policy ventures, with the Senate required to sign off on treaties and ambassadorial appointments. The courts, by contrast, have no specific powers related to foreign policy.
Moreover, courts are structurally ill suited to make foreign policy. In the United States’ adversarial legal system, they are limited to the arguments and facts before them. They do not, and often cannot, consider the many facets of a complicated foreign policy problem. Nor are judges equipped to weigh how a given decision will affect another nation’s sovereignty or whether it might come into conflict with foreign laws or foreign governments. Judges interpret the law, not the law’s effects on diplomacy, and they usually lack the expertise needed to balance delicate foreign policy considerations, particularly when it comes to conduct occurring overseas.
In the same vein, U.S. judges are constrained by the information on which they can rely—information that is far more limited than that available to the other branches. Jurists must rely exclusively on the arguments and evidence presented by the parties in a given case, and there is no guarantee that these presentations will contain all the relevant information. But political actors can rely on any source they like, including hearsay and other types of evidence not allowed in court.
In any event, judging is a somewhat monastic process, focused on interpreting the law through the myopic lens of a particular case. Over time, this creates a risk of outcomes that are inconsistent both between different judges and between different branches of government, as each judge tends to be the lord of his or her own fiefdom. By contrast, the policymaking process in the other branches is a deliberative and collaborative endeavor intended to produce a coherent national stance. Such unity is vital in international relations, which, as the Supreme Court pointed out in a 1962 decision, demand a “single-voiced statement of the Government’s views.”
Finally, judges’ prevailing posture is backward-facing. Their job is to resolve disputes after they have occurred. Those charged with managing foreign policy, on the other hand, confront situations in real time. They must strive to anticipate and solve problems before they materialize.
These structural disadvantages make it imperative for courts to tread cautiously in cases touching on foreign affairs. The sovereignty of another nation is not something to be disregarded casually. When the United States decides to act in ways that may offend foreign sovereigns, the executive and legislative branches should take the lead. This is so for a simple reason: applying U.S. law to foreign people in foreign places generates understandable irritation. The U.S. legal regime is an outgrowth of the United States’ distinct legal tradition. The people of other countries had no stake in its creation and therefore understandably resist having it imposed on them. In fact, the application of U.S. laws extraterritorially directly contradicts the principles of self-governance and self-determination that the United States rightly advances in the world.
Moreover, law is just one tool in the United States’ foreign policy toolbox, and it is usually not the one best suited to achieving national aims. Diplomatic, economic, and military tools, which are more squarely in the hands of the executive and legislative branches, allow the government to pursue calibrated responses to situations as they unfold. They leave room for subtlety and fluidity, horse-trading and compromise. They allow for informal discussions and interpersonal relations: foreign ministers, finance ministers, and defense ministers can achieve levels of candor that opposing lawyers cannot. Presidents, unlike judges, can pick up the phone. And whereas litigation picks winners and losers, international disputes are rarely zero-sum propositions.
There is one final reason judges should be particularly cautious in adjudicating cases that may affect foreign relations: the very real prospect that other countries will reciprocate through what some have called “lawfare.” A Chinese court could allow a lawsuit against a U.S. company for transactions conducted in the United States that were perfectly legal under U.S. law. A European court might permit a lawsuit against a former U.S. president for ordering a drone strike on a target abroad, or a lawsuit against a secretary of defense or a law professor who advised that president to use the drone. That may be where things are heading. And the more U.S. courts are willing to entertain claims that have no express extraterritorial grounding in a statute, the more they are encouraging the courts of other countries to do the same.
THE RIGHT ROLE
What, then, should be the foreign policy of the judiciary? First, do no harm. When deploying law globally, even in the service of a good cause, judges should tread lightly. Of course, courts should not reflexively retreat from a case touching on international relations, nor should such issues be automatically immune from judicial review. But as the Supreme Court has instructed, before they act, judges must consider whether the decision at hand is one historically left to the political branches, whether it is amenable to judicial management, and what possible consequences judicial action risks. In matters touching on foreign policy, courts should recognize that they play a limited, but not an invisible, role. That means returning to the principles underlying the founders’ Westphalian doctrine of territoriality. To be sure, that default rule is formalistic. But to paraphrase Winston Churchill, it may be the worst possible rule of jurisdiction, except for all the others.
Second, when in doubt, defer. By rigorously applying the presumption against extraterritoriality, judges can force the executive and legislative branches to decide whether to extend a given law to cover acts that take place abroad, thus spurring those branches to correct inconsistencies or gaps in U.S. law.
The Second Circuit did just that in 2000, when it faced the question of whether Milton Gatlin, the civilian husband of a U.S. Army sergeant, could be prosecuted in federal court for sexually abusing his 13-year-old stepdaughter while on a U.S. military base in Germany. The case was tricky because Gatlin fell right into a jurisdictional gap: the Supreme Court had previously ruled that it was unconstitutional to prosecute civilians in a military court (where he would have been tried had he been a service member), but there was no express congressional authorization to try a civilian in a regular federal court for crimes committed on an overseas military installation. The Second Circuit concluded that Congress did not intend for the federal sexual abuse statute to apply to military bases abroad. Despite the heinous nature of Gatlin’s crime, the Second Circuit held that the trial court lacked jurisdiction over his case, reversing the conviction.
Foreigners resented the rise of what one contributor to The Yale Law Journal called “Yankee jurisdictional jingoism.”
Unlike with most cases, however, the story did not end there. Because the court believed that Congress ought to know about this jurisdictional gap, the ruling directed that a copy of the decision be sent to the chairs of the Armed Services and Judiciary Committees of both houses of Congress. Within five months, and in direct response to the decision, Congress closed the gap with the Military Extraterritorial Jurisdiction Act of 2000, which gave federal courts jurisdiction to prosecute civilians who commit crimes on overseas military installations. The court was playing a constrained role, by refusing to extend a U.S. law overseas, but also an important one, by encouraging another branch to consider doing so.
Third, judges should lead by example. The U.S. judiciary is one of the oldest and most distinguished judiciaries in the world, and other countries continue to look to it as a model. So U.S. judges need to guard against the perception that U.S. courts are a tool of American overreach. Rather, they should strive to make the U.S. judiciary an exemplar of the important role courts can play in ensuring that the law is faithfully interpreted, not stretched beyond its meaning to achieve particular policy goals. In other words, judges should stick to their constitutional and historical role.
THE POWER OF MODESTY
A return to a more territorial judicial landscape has many opponents, but perhaps the most vocal ones are those who want U.S. courts to provide justice for victims of human rights abuses around the world. Some even say that closing U.S. courts to foreign human rights lawsuits would signal U.S. apathy to atrocities committed abroad.
They are wrong. Serious breaches of the peace, including genocide, are indeed the business of the United States and its allies. But the courts are not particularly competent to handle these matters. Upholding the liberal world order is not something that well-intentioned lawyers, academics, and judges can do on their own. Protecting innocent people from the predations of others requires U.S. global leadership, and that leadership can come only from the vigorous efforts of the executive and legislative branches of the government.
The history of the U.S. judiciary’s involvement in foreign policy matters demonstrates not that the United States should evade responsibility for the protection of human rights abroad but, rather, that the courts should not be at the tip of the country’s spear. In The Federalist Papers, Alexander Hamilton called the judiciary the “least dangerous” branch of the new government that was in gestation. “It may truly be said to have neither FORCE nor WILL, but merely judgment,” he wrote.
Hamilton was right. All we judges really have is our judgment. And when it comes to foreign policy, our reach is necessarily limited. The U.S. judiciary can never be a sheriff unto the nations, but by showing proper restraint, it can be a light unto the nations.