Foreign Official Immunity: Wuerth Responds to Bradley, Helfer, and Stewart

Thanks to Roger Alford and Opinio Juris for hosting this discussion.  And renewed thanks to the distinguished respondents for their insightful commentary.

Foreign official immunity issues arise in a variety of cases, especially in response to plaintiffs making commercial or human rights claims.  As Larry Helfer and David Stewart emphasize (and as I discuss in the article), in the human rights context customary international law on official immunity is arguably unsettled, and the potential for tension with other nations is real.  The U.S. government strongly opposed torture cases against Donald Rumsfeld in various European countries and a French criminal case against him was dismissed on immunity grounds, so it is difficult to think that denying immunities in U.S. courts will always be a welcomed development.  Similarly, the International Court of Justice case by Germany against Italy, which Professor Helfer mentions, resulted from a civil judgment of the Italian national courts.  The cases brought in the U.S. are thus part of a broad set of national court decisions around the world that arise in a variety of doctrinal contexts.   How U.S. courts resolve them may have a significant impact on the development of international law and on U.S. foreign relations.

In my view, there is an important role for the executive branch in some immunity cases. Deference is appropriate regarding the prerequisites for status-based immunity, the development of customary international law, some questions of fact and law on which the government has particular expertise, and perhaps even the outcome of individual cases under exceptional circumstances. Professor Stewart says that I afford “at best a very limited” role for the executive, but I disagree: my approach contemplates potentially significant deference, especially if the government chooses to articulate general principles of immunity.  On the other side, Curt Bradley questions whether this affords so much deference to the executive branch that it hardly matters whether it has to power to make binding immunity determinations in every case.  Again, I disagree.  Denying the government this binding, case-by-case power helps obviate some of the most important problems with the pre-FSIA system of executive control, and it also makes clear the constitutional and statutory limitations on executive power, which have potential significance in other contexts.

Professors Bradley and Stewart question the functional advantages of the courts over the executive branch in making immunity determinations – but many potential benefits of executive participation can be realized within a common law system developed by the courts.  To my knowledge, no other country in the world vests the executive branch with the power to make immunity determinations binding on its courts.

Turning now to constitutional and statutory bases for the power asserted by the executive branch, Professor Stewart writes that it is hard “to make a case that the Constitution requires [immunity determinations] to be made by the judicial branch.” Fortunately, I don’t try to make that case. Congress could enact a statute governing foreign official immunity; the question is what to do absent such a statute. Judicial development of federal common law in immunity cases is very closely related to the federal common sanctioned by the Court in Sabbatino, First National City Bank, and Boyle. By contrast, the executive law-making power in the claim settlement cases has a stronger historical basis than do executive immunity determinations, and the Court has recently refused in Medellin to expand the claim settlement cases to include other exercises of executive power.

Professor Bradley argues that the statutory basis for executive control based on the acquiescence of Congress is stronger than I suggest. Interestingly, the government has not advanced statute-based arguments, relying instead on constitutional analysis. In my view, the statutory arguments are stronger than the constitutional ones, although in the end also unconvincing.  First, there were very few official immunity cases before FSIA was enacted. As the Court said in Samantar: “although questions of official immunity did arise in the pre-FSIA period, they were few and far between. The immunity of officials simply was not the particular problem to which Congress was responding when it enacted the FSIA.”

Second, cases like Dames & Moore rely on statutes designed to enhance executive power, but the FSIA was explicitly designed as a limitation. Thus, the reasoning in Dames & Moore that “the enactment of legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility,’” (quoting Jackson’s opinion in Youngstown) simply does not apply to a statutes like the FSIA designed to eliminate executive control over immunity.

Third, official immunity determinations, even if not included within FSIA, take place in very different context after the enactment of the statute.  There is the potential for substantial overlap between questions of state and individual immunity, and resolution of the latter should not undermine the statutory scheme put in place to govern the former.  Thus it is incorrect to think of FSIA as preserving or acquiescing in some pre-existing practice – the practice going forward should be informed in many ways by the statute itself.

Let me end with the important question posed by Professor Helfer: whether “U.S. judges should take the lead in shaping CIL to expand the civil liability of foreign officials who commit human rights violations.”  Where they risk violating international law, I argue in the article that they should not, which may seem like a blow to human rights.  Indeed, immunity and human rights are sometimes depicted as almost opposites in a zero-sum game.  But – and now I move beyond the arguments advanced in my article – immunity may benefit human rights if it fosters strong, stable relations among states and reduces the regional frictions that can arise when immunity is denied.  These benefits are difficult to quantify, but so are some of purported benefits of denying immunity, such as the potential deterrent effect such cases might have going forward.