Published by The Lawfare Institute
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Published by The Lawfare Institute
The distraction of the NDAA and the drone controversy led me to miss two other important lawfare developments in December: the Obama Administration asserted immunity for foreign government official defendants in two Alien Tort Statute lawsuits. Of the two assertions of immunity, the more significant came in an ATS suit filed in the Eastern District of New York against the Pakistani Inter-Services Intelligence (ISI) Directorate and two former Directors General of the ISI by American and Israeli citizens who were injured or whose relatives were killed in the 2008 Mumbai terrorist bombings. Bobby had posted about this lawsuit when it was filed. On December 17, 2012, the Justice Department filed a Suggestion of Immunity, in response to a request from the judge for the views of the U.S. Government, asserting immunity on behalf of both the ISI and the former ISI Directors. The Suggestion of Immunity attached a letter from then-Legal Adviser Harold Koh determining that the individual defendants enjoyed residual immunity for acts taken in an official capacity and that "acts of defendant foreign officials who are sued for exercising the powers of their office are treated as acts taken in an official capacity...." To my knowledge, this is the first time the Obama Administration has asserted so-called "official acts" immunity on behalf of former foreign government officials who were not previously heads of state or government. Readers will recall that in Samantar, the Supreme Court concluded that current and former foreign government officials do not enjoy immunities under the Foreign Sovereign Immunities Act but may enjoy common law immunities. The position of the Executive branch under both the Obama and Bush Administrations has been that the immunity of foreign government officials is governed by common law, based on determinations of immunity made by the Executive branch that are binding on the judicial branch. The Obama Administration has previously filed a Suggestion of Immunity for a former head of state (Ernesto Zedillo, the former President of Mexico) for acts in his official capacity but not for former lower-ranking government officials. I discuss the implications of this case, as well as a second Suggestion of Immunity, below the break. The Administration's Suggestion of Immunity on behalf of the ISI Directors comes as no surprise as a matter of law or policy. In the Zedillo filing, the Obama Administration made clear that former foreign government officials enjoy immunity for their official acts. The Bush Administration (when I was Legal Adviser) filed a Suggestion of Immunity on behalf of former Israeli intelligence chief Avi Dichter in an ATS suit relating to an alleged targeted killing in Gaza. And it would have been quite surprising if the Administration had not asserted immunity on behalf of the former Pakistani ISI chiefs after a long line of CIA Directors have reportedly ordered hundreds of drone strikes in Pakistan (and after the U.S. Government had insisted that purported former CIA officer Raymond Davis had immunity after shooting two Paksitanis in Lahore in 2011). Although human rights plaintiffs dislike immunity doctrines as an impediment to accountability, the U.S. must assert immunity for foreign government officials for their official acts if it expects its own officials to enjoy immunity in other countries. I examined the approach of the Office of the Legal Adviser towards official acts immunity in this October 2011 article in the Vanderbilt Journal of Transnational Law entitled "The Dog That Caught the Car: Observations on the Past, Present, and Future Approaches of the Office of the Legal Adviser to Official Acts Immunity." Also in December, the Justice Department filed a Suggestion of Immunity on behalf of President of Cameroon Paul Biya, who had been sued in a rather bizarre Alien Tort Statute lawsuit filed in Oregon by the former Director of Cameroon Airlines (Camair), who claimed to have been detained and tortured at the direction of President Biya and a Cameroonian magistrate and prosecutor. The Justice Department's Suggestion of Immunity attached a letter from Legal Adviser Koh determining that Biya was entitled to immunity as a current head of state. Of note, however, the Koh letter stated that the State Department had not yet addressed the possible immunities of the Cameroonian magistrate and prosecutor. This may reflect an emerging Obama Administration practice of filing sua sponte only on behalf of heads-of-state, while waiting to be asked by the court for Executive branch views with respect to lower-ranking officials.
John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter in Washington, DC. He is also Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009, as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House from 2001–2005, and as Counsel for National Security Matters in the Criminal Division of the Department of Justice from 1997–2001.
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