Keitner Takes on Bradley/Goldsmith on Government Official Immunity

by Julian Ku

Prof. Chimene Keitner at UC-Hastings has posted a short essay in the online version of the Yale Journal of International Law criticizing the novel and influential interpretation of the Foreign Sovereign Immunities Act proposed by Profs. Curtis Bradley and Jack Goldsmith.  In a series of articles, Bradley and Goldsmith have argued that the FSIA’s immunity for “foreign state[s]” should be interpreted to include foreign government officials.  This argument may very well be adopted by the Supreme Court this term in Samantar v. Yousuf (for background, see here and for my take on oral argument, see here). Here is a summary of her critique:

Stated briefly, the observation that “a state acts through individuals” does not support Bradley and Goldsmith’s proposal as a matter of logic, because both U.S. and international law attribute personal responsibility to individuals for certain types of illegal conduct precisely because they engage in such conduct under color of law.  When a certain criterion defines conduct as illegal, it does not make sense for that same criterion to place individuals who have engaged in that conduct categorically beyond the reach of U.S. courts. Nor do policy considerations support Bradley and Goldsmith’s proposal. There are at least three reasons for this: the FSIA was not designed to include individuals, reading it to do so would conflict with the Torture Victim Protection Act, and various specialized  immunities and other non-statutory doctrines already afford substantial protections to foreign officials and to the interests of foreign states in U.S. courts. Finally, neither international treaties nor customary international law require treating all “official capacity suits” as suits against the state itself, without regard to the conduct at issue. It would be anomalous to find that international law categorically prevents states from holding individuals accountable for universally condemned violations of international law.

I still don’t know what I think about this issue. Hopefully, I’ll figure something out before the Supreme Court comes down with a decision, but perhaps not. In any event, it is always worth considering Chimene’s take on these things.

2 Responses

  1. The heart of the matter appears to be the following phrase:

    “Therefore, reading suits against individuals into the FSIA would inadvertently confer both civil

    and criminal immunity on individuals for their non-commercial activities. This could interfere with the United States’s ability to prosecute individuals involved in offenses carried out with the tacit or explicit approval of a foreign state.”

    Immunity for torture abroad by foreign states at the instigation of the United States and a backdoor effort to increase the domestic qualified immunity of government officials other than the President during the term of office appear to be in the background of this discussion.


  2. Response…
    The FSIA should have nothing to do with “criminal” prosecution, and certainly nothing to do with criminal prosecution of members of the Bush Administration.  The radical revisionist claim that the FSIA should cover individuals would involve a radical notion that judges can simply re-write acts of Congress by adding words and phrases that Congress never chose.  Imagine how this might play out during upcoming confirmation hearings! 
    28 U.S.C. 1603(a) expessly includes merely a “political subdivision” or an “agency” or “instrumentality of a foreign state as defined in subsection (b)” — which expressly declares that agency or instrumentality “means any entity” [hardly a human being] “which is a separate legal person … and … which is an organ of a foreign state or political subdivision thereof” [hardly a human being].  The legislative history also declares that in 1608, “the term ‘foreign state’ refers only to the sovereign state itself” whereas elsewhere it includes political subdivisions, agencies, and instrumentalities [hardly a human being] and that “[t]he second criterion [in 1603(b)(2)] requires that the entity be either an organ … or political subdivision … or that a majority of the entity’s shares….” [hardly a human being].

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