01 Aug Court Upholds “Special Mission” Immunity for Chinese Government Official
Executive invocations of foreign affairs as the basis for dismissing otherwise valid litigation doesn’t seem to work very well these days. But there is one area where (thus far) courts have continued to give the U.S. executive essentially complete deference: determinations on immunity for heads of state. And so it is today in the Federal District Court of D.C.’s decision in Lee Weixum v. Bo Xilia dismissing a lawsuit alleging torture and cruel treatment brought by members of the Falun Gong against a Chinese Government official. The basis of the dismissal was the State Department invocation of its right to grant immunity to a foreign government official and to have such a determination binding on courts.
The executive’s continued role in “head of state” immunity determinations is pretty uncontroversial. But should it be? After all, it essentially involves absolutely (or nearly absolute) binding determinations that determine the course of otherwise valid domestic litigation at the complete discretion of the U.S. executive. That’s OK with me, but how does it square with our newly assertive federal courts in the areas of foreign affairs?
Actually, one of the particularly interesting things about this invocation of immunity was that the putative defendant was not a head of state or even on a visit to the US with a head of state delegation. He was a lower level official at the time.
Of course, this kind of head of state immunity for a low level official is done so that when US low level officials get accuse of the same thing in another country this chip can be used to get the thing turned away (remember the suit against Rumsfeld in France a little bit ago, or the one in Germany). So much for being a bulwark for human rights and so much for our courts willingness to bend over in front of that kind of statement of interest. In terms of universal jurisdiction sure seems like the courts have fashioned a nice doctrine to try to extract the US from a more thorough examination of its obligations as to such cases. We are a long way from even Filartiga it would seem.
Best,
Ben