07 May Court Dismisses Claim for Targeted Assassinations of Suspected Terrorists
The Southern District of New York last week dismissed a class action lawsuit by plaintiffs alleging that Israel has been systematically committing acts of targeted assassination of suspected terrorists. In the case of Matar v. Dichter, the defendant Avraham Dichter was the former director of GSS, an Israeli security organization. The complaint alleges that the defendant “developed, implemented, and escalated” Israel’s targeted killing policy, and that the al-Daraj attack was “part of a pattern and practice of systematic human rights violations designed, ordered, implemented and directed with the participation of Defendant and carried out by military personnel acting at his direction.” The complaint alleges that defendant committed the following acts: (1) war crimes; (2) crimes against humanity; (3) cruel, inhuman or degrading treatment or punishment; (4) extrajudicial killings; (5) wrongful death; (6) negligence; (7) public nuisance; (8) battery; (9) intentional infliction of emotional distress; and (10) negligent infliction of emotional distress.
The court dismissed the action, finding that none of the exceptions to the FSIA applied and that the case involved a non-justiciable political question. Here is an excerpt:
Although the Second Circuit “has not clearly addressed” the issue of whether the FSIA applies to individuals … numerous courts have found that “immunity under the FSIA extends also to agents of a foreign state acting in their official capacities” … [T]his Court is persuaded by the overwhelming weight of decisional authority from this District and from other circuits applying the FSIA more broadly. Withdrawal of such immunity would constitute a deviation from the international norm. As noted by the Government in its Statement of Interest: “[P]arting with this international consensus would threaten serious harm to U.S. interests, by inviting reciprocation in foreign jurisdictions. Given the global leadership responsibilities of the United States, its officials are at special risk of being made the targets of politically driven lawsuits abroad-including damages suits arising from alleged war crimes. The immunity defense is a vital means of deflecting these suits and averting the nuisance and diplomatic tensions that would ensue were they to proceed. It is therefore of critical importance that American courts recognize the same immunity defense for foreign officials, as any refusal to do so could easily lead foreign jurisdictions to refuse such protection for American officials in turn.” … [T]he State of Israel has represented to this Court that Dichter’s actions were taken “in the course of [his] official duties, and in furtherance of official policies of the State of Israel.”… Dichter is entitled to sovereign immunity under the FSIA because he is “being sued solely for actions taken in his official capacity.”…
Plaintiffs argue that the FSIA does not apply to Dichter because jus cogens violations are necessarily beyond the scope of an official’s lawful authority…. [C]ourts have analyzed whether jus cogens violations implicate FSIA Section 1605(a)(1)…. The courts have held that “[j]us cogens violations, without more, do not constitute an implied waiver of FSIA immunity” for individuals acting in their official capacity….
Even if the FSIA were inapplicable, this Court would dismiss the action pursuant to the political question doctrine…. The Baker factors-and particularly factors four and six-strongly suggest that this action involves a political question. The defendant is a high-ranking official of Israel, a United States ally. The Complaint criticizes military actions that were coordinated by Defendant on behalf of Israel and in furtherance of Israeli foreign policy. For this reason, both Israel and the State Department, whose opinions are entitled to consideration, urge dismissal of this action…. Plaintiffs bring this action against a foreign official for implementing the anti-terrorist policy of a strategic United States ally in a region where diplomacy is vital, despite requests for abstention by the State Department and the ally’s government. “[T]he character of [such a] claim[ ] is, at its core … peculiarly volatile, undeniably political, and ultimately nonjusticiable.”
The Center for Constitutional Rights, which brought the lawsuit, stated in its press release: “This decision is a big disappointment. The court found a government official immune for war crimes because the Israeli government approved of his acts, and because the U.S. executive might be embarrassed if the case proceeded. Failing to enforce the law against officials from governments who stand by their human rights violations permits some of the worst abuses to go unpunished.”
Arnold & Porter, which represented the defendants, had this to say: “[T]he Matar decision prevents U.S. courts from being used for political purposes, for challenging the official policies of sovereign allies like Israel, and for presenting claims not appropriate for judicial resolution.”
Obviously the Israeli practice of targeted killings of suspected terrorists is extraordinarily controversial. But I think this decision is correct in all respects. Under current FSIA jurisprudence, Dichter was an agent or instrumentality of the state of Israel, and therefore enjoyed immunity for conduct undertaken in his official capacity. None of the FSIA exceptions apply to the alleged conduct, and the doctrine of implied waiver for alleged jus cogens violations has never garnered support by the Second Circuit or other federal circuits. And most importantly, the decision of how to address the threat of terrorism, including decisions by foreign allies to target suspected terrorists as a counter-terrorism measure, is a decision best left to the political branches. It just seems odd that a United States court would be the final arbiter of the propriety of Israeli military responses to suspected Palestinian terrorists.
What about Filartiga? Doesn’t that hold precedence, or is this case different because Pena-Irala was not a government official? And, hasn’t Germany gone ahead with prosecution of CIA officers in abstentia? It would seem here that the court politicized the argument/ Rather than framing the argument as a political question, shouldn’t the court have refused by stating its an Israeli matter?
Is Dicther in the US? CIA officers are not granted immunity are they? What about FBI agents?
Immunity from civil suit through a combination of state secrets, political question, federal officer immunity, and other doctrines.
Immunity from criminal prosecution to the extent prosecutorial discretion in the Justice department operates to never bring a case and legislation creates burdens on such a prosecution.
Best,
Ben
Daniel,
I think the key difference is that Dichter was a senior military official who was carrying out official Israeli policy. In the litigation Israel backed him up and said that he was acting in his official capacity in targeting suspected terrorists. So it wasn’t hard to conclude that he was an agent or instrumentality of the government. I don’t think the same can be said with most ATS claims alleging conduct such as torture.
Roger