Pirates, political questions and Taiwanese citizenship

|The Volokh Conspiracy |

I have a post at Lawfare on an interesting Fourth Circuit case, dismissing an action against the U.S. Navy for accidentally killing hostages during an anti-piracy operation. The Fourth Circuit affirmed the dismissal as a political question, because it would involve ruling on tactical decisions made by the military.

However, the case raises interesting questions about how far the non-justiciability of military operations extends beyond situations of armed conflict, to things such as law enforcement operations. From the post:

One argument by the plaintiff received somewhat greater attention. The U.S. warship was engaged in a counter-piracy operation: in effect, a campaign aimed at preventing criminal activity, not a military action. Thus there should be no more concern with justiciability than in a shooting attendant to a traffic stop. While hostages killed in a police raid may have little substantive legal basis for second-guessing the relevant decisions, such claims would certainly be reviewable.

The Court nonetheless concluded that it was the military nature of the operation-conducted by the armed forces, in a role they have traditionally served-rather than its goal or the existence of belligerency that triggered the political question doctrine. Thus the Court held that the political question doctrine extends to non-combatant kinetic operations of the military, and also auxiliary actions not directly linked to the use of force (such as the subsequent scuttling of the fishing vessel, which the plaintiff strongly argued would not be non-justiciable even if the original incident was).

The Fourth Circuit failed to draw a clear line between justiciable and non-justiciable categories. On one hand, it clearly held that a "state of war" or even armed conflict need not exist for the political question to be invoked. On the other hand, it suggested that mere "law enforcement" action would not be enough. It concluded that the incident was not a "traditional police action" because of its location, the command structure used, and the general presumption, gleaned from the Posse Comitatus Act, that the military is not engaged in law enforcement functions. This last factor seems entirely irrelevant, as the Posse Comitatus Act does not apply extraterritorially.

A little interesting detail about the case not mentioned in the Lawfare post is that the court referred to the victim as a "citizen of Taiwan." That is odd, since the position of the United States is that Taiwan is part of the People's Republic of China. From the perspective of the United States, there is no such thing as Taiwanese citizenship. Indeed, the Taiwan Relations Act uses the appropriately GovSpeak phrase "the people on Taiwan."

But such diplomatic pretenses, when detached from reality, often fail to trickle down into consciousness, and a Westlaw search reveals courts not infrequently slipping into this expression. Similarly, federal courts have frequently referred to events in "Jerusalem, Israel" despite the Executive Branch saying there is no such place.

The reference to Taiwanese citizens is a bit ironic in a political question case, as that doctrine is supposed to prevent judicial interference in foreign affairs.