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Wu v. United States: Executive Power and Political Questions (and Pirates)
Michael Ramsey

I am one of the attorneys on a cert petition recently filed at the Supreme Court on behalf of the plaintiff in Wu Tien Li-Shou v. United States (No. 14-1510); the case is discussed by Eugene Kontorovich at Lawfare: Piracy and the Political Question Doctrine in Non-Conflict Uses of Force.  (We filed our reply brief Monday so briefing is now complete).

It's an interesting and tragic case involving the accidental death of a Taiwanese ship captain (husband of the plaintiff) during an anti-piracy operation by the U.S. Navy off the coast of Somalia.  The captain's ship had been seized by pirates, and the allegations are that Navy personnel violated various rules and policies in attempting to recover the ship from the pirates, leading to the death of the captain and sinking of the ship.  The suit was brought under the Public Vessels Act (PVA), a U.S. statute that makes the U.S. government liable for maritime torts committed by the crews of U.S. "public vessels" (i.e., government-owned vessels such as navy ships).

The U.S. government claims that the political question doctrine precludes PVA liability in this situation (the court of appeals agreed).  In the petition, we show that this view creates a conflict with two other courts of appeal, which have held the PVA applicable to uses of force by the Coast Guard (against drug smugglers) and the Navy (in the well-known incident in which a Navy ship on patrol in the Persian Gulf mistakenly shot down a Iranian civilian airliner).  But I think the government's political question argument is mistaken on more fundamental grounds.

Whether the PVA creates liability in this situation should be a statutory question.  It's not obvious that it does: the PVA has been construed to have an exception for "discretionary functions" similar to the Federal Tort Claims Act.  (Actually the PVA's text plainly does not have that exception, but courts have found it anyway, and I'll let that pass).  So the plaintiff in Wu has to show that the Navy's actions weren't discretionary functions.  Fine so far.  (The plaintiffs in the Iranian airliner case lost on these grounds, after the court rejected the government's political question defense).

But suppose the plaintiff in Wu can show that the navy personnel violated applicable laws or policies, so their actions were not discretionary.  PVA liability should apply, should it not?  No, says the government, because the political question doctrine bars the suit; otherwise the suit would interfere with the President's command of the military.

In my view that's a conceptual error.  If the PVA provides liability in this case, then there should be liability unless the PVA is unconstitutional.  If PVA liability unconstitutionally interferes with the President's command of the military, then the PVA is unconstitutional as an infringement of executive power.  Invoking the political question doctrine just confuses the issue and results in courts analyzing the question backwards.  The correct sequence is the one I've laid out: (1) does the PVA provide liability, and (2) if so, is the PVA unconstitutional.  But because it got distracted by the political question doctrine, the court of appeals here dealt with the constitutional issue first, and without directly recognizing it as a question of executive power.

It's true, of course, that whether courts ought to assess liability of U.S. military forces in anti-piracy operations is a difficult policy question.  But it's a policy question answered (one way or the other) by the PVA.  Courts shouldn't re-examine the policy question Congress has decided (which is what the government effectively invites by invoking the political question doctrine).  They should follow the policy of the statute, unless it's unconstitutional.

At one point in the middle of its brief in opposition, the government seems to acknowledge this point: "Congress may not override a textual constitutional assignment of an issue to another Branch -- and thereby convert an otherwise nonjusticiable political question into a matter to be adjudicated in court -- by enacting a statute that purports to confer a right to have the courts resolve the issue."  I agree with this proposition as a general matter.  But it bars the suit in Wu only if it is unconstitutional for Congress to regulate the activities of the navy in anti-piracy operations.

Put this way, the answer is obviously that the statute (applied to the navy) is constitutional.  Congress has constitutional power to "make Rules for the Government and Regulation of the land and naval Forces." Under that power, it seems plain that Congress can (a) provide general rules of engagement for navy ships, and (b) provide for compensation to victims when the rules are violated.  Thus the only question in the case ought to be whether Congress did so in the PVA.

Incidentally, once it's made clear what the government is really arguing here, it's also clear that this is exactly the same argument John Yoo and Jay Bybee made in their famous "torture memos" during the GW Bush administration; they argued that Congress couldn't ban torture or other war crimes by U.S. forces because that would interfere with the President's exclusive control over the military.  I didn't think much of that argument then (see 93 Georgetown L.J. 1213, 1236-1245 [2005]) and I still don't.  It seems clear that, although the President is commander-in-chief, his command is subject to the "Rules for the Government and Regulation" made by Congress.  Otherwise, the government-and-regulation clause appears meaningless.

In any event, the political question doctrine shouldn't be used to obscure what's at stake here.  The question is whether Congress can create liability for harms done by the military (and, of course, secondarily whether Congress has done so in the PVA).