Air Force General Counsel Blog The chief legal officer and chief ethics official of the Department of the Air Force

11Jan/130

More on Conduct-Based Foreign Official Immunity

We previously posted about Curtis Bradley's very useful analyis of recent Foreign Official Immunity doctrine cases.  Professor Dodge of Hastings College of Law recently  adds to the discussion by looking at some recent Department of State filings in official immunity cases:

The most recent came on December 17 in the Mumbai bombings case, Rosenberg v. Lashkar-e-Taiba. Plaintiffs brought suit against Pakistan’s intelligence service—the ISI—and two of its former Directors General, alleging their involvement in the 2008 terrorist attacks in Mumbai, India, which killed and injured both American and Israeli citizens. The U.S. statement of interest first argues that the ISI itself is immune from suit under the FSIA because “it is a fundamental part of the Pakistani government” and “there is no applicable exception to immunity” (p. 4). The filing thus rejects the notion of a rogue-agency exception to the FSIA, noting that no court “has concluded that a component of a foreign state lacks immunity because the foreign state allegedly does not control its actions” (p. 5).

This recent filing also says a number of interesting things about the State Department’s approach to conduct-based immunity. First, while the State Department will consider a foreign government’s request for a suggestion of conduct-based immunity, the Department makes its own determination whether the acts in question were taken in an official capacity (p. 9). Second, the filing states that “[o]n their face, acts of foreign officials who are sued for exercising the powers of their office are treated as acts taken in an official capacity” (p. 11). But third, the filing leaves open the possibility that better founded allegations might overcome that presumption. Specifically, the filing notes that the complaint’s allegations against the former officials are “largely unspecified and conclusory” (p. 10). If the plaintiffs’ claims were well substantiated, it would be remarkable to conclude that planning and supporting terrorist attacks against American citizens were “official acts” entitled to immunity from suit in U.S. courts.

The Rosenberg statement of interest is consistent with other recent filings in cases involving conduct-based immunity. In September, the U.S. Government filed a statement of interest in Doe v. Zedillo, suggesting immunity for the former President of Mexico from a suit alleging his responsibility for a 1997 massacre of villagers in Chiapas. The determination of immunity again stated that “the Department of State generally presumes that actions taken by a foreign official exercising the powers of his office were taken in his official capacity” (Ex. 1, p. 1). It also emphasized that, “[p]articularly in light of the generalized allegations in the instant complaint,” the plaintiffs have not supplied a “sufficient reason” to question that preliminary assessment (Ex. 1, p. 2). To the same effect is the U.S. government’s amicus brief to the D.C. Circuit in Giraldo v. Drummond, in which the State Department determined that former Colombian president Uribe was entitled to testimonial immunity for acts taken in his official capacity as a government official. The U.S. amicus brief noted that plaintiffs’ assertions were “unsubstantiated” and in some instances contradicted by their own materials (p. 17). “[M]ere allegations of illegality are not sufficient to overcome the State Department’s presumption that the alleged conduct was undertaken in an official capacity” (p. 14).

.  .  .

But is it a good idea for the State Department to leave open the possibility that well substantiated allegations of human rights violations could overcome its presumption that acts exercising the powers of an official’s office were taken in an official capacity so as to be entitled to conduct-based immunity? If the U.S. Government wants courts to defer to its determinations of immunity, the answer is clearly yes. In a 2011 article in the Vanderbilt Journal of Transnational Law, State Department Legal Adviser Harold Koh predicted, “[o]nly if our suggestions of immunity became unreasonable, . . . would courts be tempted to explore the delicate and uncharted zone between ‘substantial deference’ and ‘absolute deference’ to executive branch immunity determinations” (p. 1161). The Fourth Circuit’s November 2 decision in Samantar should serve as a warning that U.S. courts will be unlikely to defer to State Department determinations of immunity in the face of well substantiated allegations of grave human rights violations.

Read it all here.

Charles A. Blanchard
General Counsel
United States Air Force