October 7, 2022
The final panel of The George Washington Law Review’s Volume 91 Symposium was a Fireside Chat Roundtable Discussion moderated by Sean Murphy and Edward Swaine of The George Washington University Law School. The panelists included Laura Dickinson of The George Washington University Law School, Darin Johnson of Howard University School of Law, Paul Stefan of The University of Virginia School of Law, David Stewart of Georgetown University Law Center, and Margaret Taylor, General Counsel at United States Agency for International Development (USAID).
Professor Swaine commenced the discussion by highlighting the Supreme Court’s recent decision to grant certiorari in Turkiye Halk Bankasi v. United States, which involves the Foreign Sovereign Immunities Act (FSIA) and whether the U.S. can bring criminal prosecutions against foreign companies owned by foreign sovereigns.
Professor Stefan responded first, arguing that because the FSIA exceptions making district courts available to foreign sovereigns only cover civil commercial claims, the statute implicitly excludes criminality. However, Professor Stefan questioned the notion that federal courts cannot exercise jurisdiction against state-owned companies other than in civil suits, using administrative enforcement, including the forfeiture of assets, as an example. As a result, he concluded that this silence is permissive.
Professor Stewart offered a rebuttal, arguing this is a risky case for the Supreme Court to take on for several reasons. First, Professor Stewart took the opposite view of Professor Stefan with respect to the FSIA’s silence on criminal liability, asserting that the absence of any reference to criminal law means it is not included. Professor Stewart justified this conclusion by noting that criminal law is different from civil and commercial law, and that the background of absolute immunity against which this legislation was initially adopted indicates that the restrictive immunity this statute codifies must be interpreted narrowly. Second, Professor Stewart disagreed with how this process essentially allows for prosecutors to amend the legislation. Third, Professor Stewart posited that there exists a legitimate question of whether there should be a different rule for agencies and state-owned corporations than for States, and argued that this is a question for Congress rather than the Court.
Professor Murphy asked the next question, which focused on the balancing of power in the war sphere between Congress and the executive branch in light of the U.S. pulling out of the Afghanistan “Forever War” and its ongoing role in the Russia-Ukraine war.
Professor Dickinson responded that the “Forever War” paradigm has exacerbated fundamental challenges in modern foreign relations law, including an overly powerful executive, largely acquiescent Congress, and mostly silent courts. Professor Dickinson noted that that the continued detention of individuals at Guantanamo, particularly without being charged, may be making it difficult for the Biden Administration to limit its reliance on this paradigm and for the Authorization for Use of Military Force of 2001 (AUMF) to be repealed. Professor Dickinson also emphasized that one glimmer of judicial action is suits against contractors involved in the use of force overseas and detention and interrogation of detainees because courts have rejected claims that contractors should receive the same immunities as government actors, and because courts have rejected broad applications of the State secrets doctrine.
Professor Johnson echoed Professor Dickinson’s remarks, arguing Congress has not been willing to repeal the AUMF because the national security state has become reliant on using it in contexts beyond those Congress authorized, such as in special operations around the world that are not linked to Al-Qaeda, which begs the question of whether more targeted authorizations for the use of force in different contexts are needed and to what extent the original AUMF is still necessary. Professor Johnson also argued that Congress has not acquiesced to the executive branch but rather, has taken an active role through its appropriations power under the Bush Administration and through legislation under the Obama Administration.
The next question from Professor Murphy concerned how the law operates with respect to non-military aid during conflicts, to which Ms. Taylor responded that this area of the law is very statutorily based. As such, USAID constantly interacts with Congress because its existence depends on its appropriators’ support. Ms. Taylor also discussed how USAID employees, who are stationed globally, regularly engage with local foreign law.
Professor Swaine then posed a question about the contemporary role of the Senate with respect to the continued use of Article 2 treaties and the appointment process for key government actors.
Ms. Taylor underscored how difficult it is to get Article 2 treaties through the Senate, requiring the executive branch to innovate, like in the Iran Nuclear Agreement. She argued that Congress has also innovated, demonstrating that when Congress cares enough about something, it finds a way to insert and express itself, notably through appropriations.
Professor Stefan added that those appointed without Senate confirmation lack an added layer of protection from central government pressure, and that while executive agreements have emerged in the absence of treaty ratification, the system is not functioning as well as it should be.
Professor Stewart then argued that the issue is not there being fewer Article 2 treaties to which the U.S. would like to become a party, but that they are poorly received on the Hill due to unfamiliarity with international law and federalism concerns.
Ms. Taylor echoed the need for Senate staff to be educated about the basics of international law and argued that higher profile treaties that garner political attention are less likely to advance.
Finally, Professor Dickinson commented that Congress has asserted itself with respect to civilian harm and that the Russia-Ukraine war has created opportunity for Congress to act on war crimes. Additionally, she suggested the executive branch declare that certain treaty provisions are customary international law.
Professor Murphy’s next question involved immigration, to which Professor Johnson responded that using international human rights law and treaties to challenge executive policies, like Trump’s Muslim ban and Remain in Mexico policy, is ripe and has played out in numerous ways, especially with respect to asylum and refugee law.
Professor Swaine then asked about the continuing promise of the Alien Tort Statute (ATS) and developing alternatives.
Professor Dickinson remarked that although the door is shutting on the ATS, it remains ajar in cases where U.S contractors have been involved in detainee abuse, evidenced by the Court’s rejection of political question and derivative immunity bases for narrowing the ATS, and its finding of sufficient contacts with the U.S. to satisfy the presumption against extraterritoriality and eliminate foreign relations concerns.
Professor Johnson agreed with Professor Dickinson, highlighting dicta in Kiobel v. Shell indicating that the Court does not want this decision limiting the ATS’s use to be read as prohibiting extraterritorial applications of the ATS in situations that touch and concern the U.S.
Professor Stefan also argued that the Court’s decisions limiting the ATS’s use have been fueled by the perception that plaintiff’s attorneys are engaging in predatory litigation for profit. Moreover, he suggested Congress use the Foreign Corrupt Practices Act as a model for extending human rights liability to corporations.
The final question Professor Murphy asked concerned sanctions, how far the President can go without further authority, and on what basis third parties, like the U.S. in the Russia-Ukraine war, can deviate from trade treaties and take countermeasures.
In response, Professor Stefan rejected the notion that more legislative authority is needed before transferring ownership of Russian assets because Russia is guilty of erga omnes violations, meaning States may take countermeasures. Nevertheless, he asserted that the real issue with countermeasures is the need to restore excess to the sanctioned entity once the injury is rectified, which poses challenges if U.S. relations with Russia become less hostile in the future.
Once the floor was opened to questions, Keynote speaker Harold Koh argued that one reason why the Senate has become an obstacle is because of unanimous consent. Ms. Taylor then explained that if a senator asks for unanimous consent in person and another senator wants to object, they must do so (or have another senator do so on their behalf) in person, and she agreed with Professor Koh that this process is time-consuming and makes it difficult to get anything through the Senate.
This summary was authored by Shana Herman, Membership & Projects Editor.