Montgomery, AL 36104
- Dr. Lawrence E. Grinter, Professor Emeritus, Air War College, and Adjunct Professor, Auburn University
General Michael V. Hayden, former Director of the National Security Agency and the Central Intelligence Agency, and retired United States Air Force four-star general, joined us to discuss his new book, Playing to the Edge: American Intelligence in the Age of Terror, his memoir as a career intelligence officer and leader. Though the book covers the arc of his entire professional life, our Teleforum focuses primarily on the cyber world, which General Hayden describes as “a domain of conflict and cooperation whose importance seems to grow by the hour” couched “in an era of shrinking trust in government and expanding global threats."
The Chinese Supreme People’s Court and the Chinese government have denounced the Permanent Court of Arbitration at the Hague’s recent ruling. According to The United Nations Convention on the Law of the Sea (UNCLOS) provisions, island-building activity and territorial claims in the South China Sea violated international and environmental law. Was China bound by this ruling, although China objects to The Hague Arbitration Court’s jurisdiction, and claims that consent was not given? When international law, agreements, and norms are summarily voided by a losing nation, what should be the international legal and political response? Regarding international agreements specifically, does this case provide warnings for signatories to treaties and agreements? Are there lessons for the United States in the consideration of potential reservations, opt-outs, alternate venues, or waivers, and whether they were given proper regard by the Court?
On June 20, 2016, the Supreme Court decided RJR Nabisco, Inc. v. The European Community. The European Community and 26 of its member states sued RJR Nabisco (RJR) in the U.S. District Court for the Eastern District of New York, alleging that RJR conducted a global money-laundering enterprise in violation of several laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute. The alleged RICO enterprise involved the importation of illegal drugs into European countries by Colombian and Russian criminal organizations, with RJR helping to launder their drug money through a cigarette import-purchase scheme. Applying a presumption against extraterritorial application of federal law, the district court dismissed The European Community’s civil RICO claim. The U.S. Court of Appeals for the Second Circuit vacated that judgment and reinstated the RICO claim, however, concluding that various alleged predicates for RICO liability had been intended by Congress to apply extraterritorially, and that other offenses asserted sufficiently important domestic activity to come within RICO’s coverage. RJR subsequently obtained a writ of certiorari from the U.S. Supreme Court on the following question: whether, or to what extent, RICO applies extraterritorially.
By a vote of 4-3, the Supreme Court reversed the judgment of the Second Circuit and remanded the case. Justice Alito delivered the opinion of the Court, which determined that the question of RICO’s extraterritorial application really divides into two questions: (1) Do RICO’s substantive prohibitions, contained in §1962, apply to conduct that occurs in foreign countries? (2) Does RICO’s private right of action, contained in §1964(c), apply to injuries that are suffered in foreign countries? On the first question, the Court held that under the facts asserted in this case, RICO’s prohibitions did apply extraterritorially. On the second question, however, the Court held that §1964(c)’s private right of action did not overcome the presumption against extraterritoriality, and thus a private RICO plaintiff must allege and prove a domestic injury. Because in this case an earlier stipulation had resulted in waiver and dismissal of respondents’ domestic claims, the Court explained, their remaining RICO damages claims rest entirely on injury suffered abroad and must be dismissed.
Justice Alito’s majority opinion was joined in full by the Chief Justice and Justices Kennedy and Thomas, and as to Parts I, II, and III by Justices Ginsburg, Breyer, and Kagan. Justice Ginsburg filed an opinion concurring in part, dissenting in part, and dissenting from the judgment, in which Justices Breyer and Kagan joined. Justice Breyer filed an opinion concurring in part, dissenting in part, and dissenting from the judgment. Justice Sotomayor took no part in the consideration or decision of the case.
To discuss the case, we have Cory L. Andrews, who is senior litigation counsel for the Washington Legal Foundation.