Article 1, Section 8, Clause 10 of the U.S. Constitution–or the “Offenses Clause”–empowers Congress “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Last week, in the case of U.S.v.Yimmi-Bellaizac-Hurtado, Case Nos. 11-14049; 11-14227; 11-14310; 11-14311, the U.S. Court of Appeals for the Eleventh Circuit held that this Clause did not permit the U.S. Government to prosecute drug trafficking in the territorial waters of another nation as an alleged “offense against the law of nations.”
The four defendants were observed in a fishing vessel in Panamanian waters in 2010. The defendants abandoned the vessel and fled, and the vessel was discovered to be carrying approximately 760 kilograms of cocaine. Panamanian authorities subsequently arrested the defendants, and Panama consented to prosecution of the defendants in the United States. The defendants were charged with conspiracy to possess, and actual possession, of narcotics on board a vessel subject to the jurisdiction of the United States, under the Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70503(a), 70506a. The defendants moved to dismiss the indictment based upon lack of jurisdiction and unconstitutionality. The district court denied the defendants’ motion. The defendants conditionally pled guilty to the conspiracy charge and appealed.
In a panel decision authored by Judge Pryor, the Eleventh Circuit held that Congress possesses no authority to punish conduct under the Offences Clause which is not a violation of the “law of nations.” Such “offenses” are limited by international law. Congress is not empowered by the term “define” in the Clause to thereby define offenses against international law. The Court recognized that if Congress were held to possess such power, its power would be limitless and contrary to the Federal government’s nature as one of enumerated powers.
The panel decision proceeded to hold that the phrase the “law of nations” in the Clause refers to “customary international law,” which it construed to refer to matters of mutual legal concern between nations. It concluded that private criminal activity such as drug trafficking was not a violation of customary international law either at the time the nation’s Founders drafted the Clause in 1789, or today. The Court vacated the defendants convictions.