Sometimes a boat ride - a three hour cruise - can take you places you could never have anticipated.
For Yimmi Bellaizac-Hurtado, Pedro Felipe Angulo-Rodallega, Albeiro Gonzalez-Valois, and Luis Carlos Riascos-Hurtado, a ride in a wooden boat off the coast of Panama took them to the Eleventh Circuit, the Bureau of Prisons, and through the heart of the Constitution's grant of power to Congress to make laws to punish "Offenses against the Law of Nations."
Welcome to the Jungle
The four men were spotted in Panamanian waters by the United States Coast Guard in 2010. Their boat was wooden and had no lights or flag.
The Coast Guard told the Panamanian National Aero-Naval Service. I'm guessing that's both their navy and air force, but the webpage Google gives me for them is down. Tech support is probably out chasing fishing boats.
Anyway, the Aero-Naval Service chased the boat. It ran to land, and the four men jumped off and ran into the jungle.
The Aero-Naval Service found 760 kilos of cocaine in the boat. This did not diminish their interest in the four men.
Give Me Your Tired, Your Poor, Your Huddled Masses
The four men were caught in the jungle. The United States and Panama agreed that they would he prosecuted in the United States.
A grand jury in Miami indicted the four for "conspiracy to possess with intent to distribute five kilograms or more of cocaine, and for actual possession with intent to distribute five kilograms or more of cocaine, on board a vessel subject to the jurisdiction of the United States."
Astute readers may be wondering what it means to be "on board a naval vessel operating in the jurisdiction of the United States." How bounded is the jurisdiction of the United States - if at all?
Or, more belligerently, what gives Congress the right to make laws about operating a fishing boat with 760 kilograms of cocaine off the shore of Panama?
Congress's view, apparently, is that it has this power because of the Constitution. Our Constitution contains a provision, at Article I, section 8, clause 10, which says that Congress can "define and punish . . . Offences against the Law of Nations."
These four men - this huddled mass - clearly had good counsel. They filed a motion to dismiss the case against them because Congress does not have the authority to regulate drug-laden fishing boats in Panama.
The district court was uninterested in this argument. The motion was referred to a magistrate judge who denied the motion. As the Eleventh Circuit summarized it:
The magistrate judge reasoned that the district court had jurisdiction because the defendants were operating a stateless vessel and that the Act was constitutional as applied because Congress and several courts had determined that drug trafficking was "universally condemned" by various nations with "reasonably developed" legal systems.
The district court adopted the magistrate judge's findings.
Movin' On Up
The men pled guilty, with an agreement that they can challenge whether Congress has the power to criminalize their conduct. They were sentenced to between 25 to 90 months in prison and went to the Eleventh Circuit.
In United States v. Belliaizac-Hurtado, the Eleventh Circuit reversed.
Offenses Against the Law of Nations
The Supreme Court, according to the Eleventh Circuit, has said that the Offenses Against the Law of Nations clause covers three things: "the power to define and punish piracies, the power to define and punish felonies committed on the high seas, and the power to define and punish offenses against the law of nations."
This isn't a case of piracy, and it isn't a case of a felony committed on the high seas.
The Eleventh Circuit held that the power to define and punish offenses against the law of nations is limited only to offenses which are "customary violations of international law."
Congress can't expand what's meant by the law of nations under this Clause. For example, the Supreme Court held (in 1820) that Congress can't define piracy to include murder and then have murder be punishable under a grant of power from this clause:
Nor is it any objection to this opinion, that the law declares murder to be piracy. These are things so essentially different in their nature, that not even the omnipotence of legislative power can confound or identify them. Had Congress, in this instance, declared piracy to be murder, the absurdity would have been felt and acknowledged; yet, with a view to the exercise of jurisdiction, it would have been more defensible than the reverse, for, in one case it would restrict the acknowledged scope of its legitimate powers, in the other extend it. If by calling murder piracy, it might assert a jurisdiction over that offence committed by a foreigner in a foreign vessel, what offence might not be brought within their power by the same device?
It goes on like that. And makes you grateful for Scalia's writing.
Ok - so Congress can't just make up new "law of nations" to expand its power under this Clause. The Eleventh Circuit, relying on a practically recent Supreme Court opinion, held that,
on the issue whether Congress must declare the conduct to be an offense against the law of nations to exercise its power under the Offences Clause, the Supreme Court has explained that "[w]hether the offense as defined is an offense against the law of nations depends on the thing done, not on any declaration to that effect by congress." United States v. Arjona, 120 U.S. 479, 488, 7 S. Ct. 628, 632 (1887).
The law of nations, then, is the same as "customary international law." And the Eleventh Circuit defines "customary international law" as the "general and consistent practice of states followed by them from a sense of legal obligation."
The court of appeals goes on to note that
"Private criminal activity will rarely be considered a violation of customary international law because private conduct is unlikely to be a matter of mutual legal concern"
From that it falls out relatively straightforwardly that PWID in a fishing boat in Panama isn't within the power of Congress to regulate under this statutory framework.
Preserved in Amber
This opinion reads like it's preserved in amber. Doubtless it's an artifact of being about an area of law where there's been no action since the 19th Century.
But still, the idea that categories of legal things have essences that Congress can't define away is precious. And, in the criminal realm at least, almost completely absent.
Congratulations, though, to our four Panamanian friends. I hope that if they're prosecuted in Panama for what it surely a violation of Panamanian law, that they get credit for the time they served in the land of the free.