Yesterday the Ninth Circuit, sitting en banc, has unanimously embraced the doctrine of foreign affairs field preemption. It will surely prove to be a controversial blockbuster case for foreign affairs law, with or without Supreme Court review.

The case of Movsesian v. Munich Re addressed a California statute, section 354.4, that authorized California courts to entertain various insurance claims brought by Armenian Genocide victims arising out of policies issued or in effect between 1875 and 1923. There was no clear conflict with a federal law, but rather a longstanding reluctance on the part of the federal government to formally recognize the Armenian Genocide for fear that it would offend U.S.-Turkish relations. Thus, one anticipated that the case would rely on cases such as Crosby, Garamendi and Medellin to determine whether the state law conflicted with a federal policy.

The Ninth Circuit did not take the path of conflict preemption, choosing instead to find that foreign affairs field preemption, (also known as dormant foreign affairs preemption), controlled the question.

First, the Ninth Circuit concluded that it was not enough that the California law concerned an area of traditional state responsibility, namely regulating insurance and passing laws providing state causes of action. One must look to the real purpose of the state law, which was to “provide potential monetary relief and a friendly forum for those who suffered from certain foreign events.” Focusing on the purpose of the statute led the court to conclude that the law did not concern an area of traditional state responsibility.

Second, the Ninth Circuit concluded that the law intruded on the federal government’s exclusive power to conduct and regulate foreign affairs:

The law establishes a particular foreign policy for California–one that decries the actions of the Ottoman Empire and seeks to provide redress for ‘Armenian Genocide victim[s]‘ by subjecting foreign insurance companies to lawsuits in California….

The passage of nearly a century since the events in question has not extinguished the potential effect of section 354.4 on foreign affairs. On the contrary, Turkey expresses great concern over the issue, which continues to be a hotly contested matter of foreign policy around the world….

[S]ection 354.4 expresses a distinct point of view on a specific matter of foreign policy. Its effect on foreign affairs is not incidental; rather, section 354.4 is, at its heart, intended to send a political message on an issue of foreign affairs by providing relief and a friendly forum to a perceived class of foreign victims…. [T]he law imposes a concrete policy of redress for ‘Armenian Genocide victim[s],’ subjecting foreign insurance companies to suit in California by overriding forum-selection provisions and greatly extending the statute of limitations for a narrowly defined class of claims. Thus, section 354.4 ‘has a direct impact upon foreign relations and may well adversely affect the power of the central government to deal with those problems.’ Zschernig, 389 U.S. at 441. Section 354.4 therefore intrudes on the federal government’s exclusive power to conduct and regulate foreign affairs.”

Wow. I have been following this case for two years and would never have predicted that foreign affairs field preemption would control the result. The entire course of litigation appeared to be addressing questions of conflict preemption in the absence of a clear federal mandate or even an obvious federal policy with respect to the Armenian genocide.

One wonders, of course, whether the Ninth Circuit decided to embrace field preemption to avoid the problematic question of finding conflict preemption in the absence of a federal law on the matter. The broadest reading of Garamendi seemed to allow for the possibility of federal policy preemption, but Medellin arguably cut back on that position.

If field preemption governs the question of foreign affairs, one wonders why the Supreme Court bothered with its conflict preemption analysis in Crosby and Garamendi.

On the Ninth Circuit’s reading, with respect to any subject that intrudes on foreign affairs, all that matters is whether the real purpose of the state law is to respond to foreign events instead of pass laws of neutral applicability.

Of course, any number of state laws may now be preempted under foreign affairs field preemption. These might include, for example, long-arm statutes to address libel tourism, state laws regulating drug trafficking at international borders, ad hoc state tax credits to promote targeted foreign direct investment, emergency state funds for the benefit of Japanese tsunami victims, or state pension divestment rules such as those applied to address South African apartheid. In all such cases the purpose of the state law is to address specific issues arising from foreign events rather than pass neutral laws of general applicability. Therefore those laws too would be preempted under the Ninth Circuit’s expansive foreign affairs field preemption analysis.

Harold Koh’s keynote address today at the University of Virginia conference did a nice job surveying the legal landscape from the Legal Adviser’s perspective. He divided the conflicts into four categories: non-conflicts, soft conflicts, hard conflicts, and hardest conflicts. He then outlined specific examples in his daily docket that fall into each category. Details on the speech will be published in a forthcoming VJIL symposium issue.

Perhaps the most interesting aspect of his discussion was his spirited defense against accusations of hypocrisy. To the question “Why do you say things you don’t really believe?” he offered several replies.

First, he does no such thing. As he has said elsewhere, “I never say anything I don’t believe…. [I]f you hear me say something you can be absolutely sure that I believe it.”

Second, take what he says in context. He is not speaking as an academic. When he speaks as a Legal Adviser he does so as an advocate. The United States government is the client and he is speaking on behalf of that client. Just as a criminal lawyer will often change roles and serve as a prosecutor, defense counsel, judge, or academic, so too must an international lawyer recognize the different roles that he plays and speak accordingly. Moreover, a U.S. government lawyer must speak with due consideration of what has been said in the past and with due regard for the legal opinions of other lawyers in other U.S. agencies.

Third, sometimes his views have changed. “If there is anything inconsistent between what I said in a footnote when I was 29 and what I said now, then believe me now.” The specific example he gave was about congressional legislation. He said that in the past he often wrote with the assumption that Congress could pass statutes. But having served in Washington long enough he has come to accept that often legislation is simply not an option.

He did not contextualize that comment, so for now one can only speculate as to what he meant. My best guess—and it is only a guess—would be that many of his views about congressional acquiescence to the executive branch articulated in his well-known book The National Security Constitution (published in 1990 when he was 36) are no longer his current views. I say that because the sharpest divergence between Koh the academic and Koh the Legal Adviser comes in the Libya context with respect to the definition of “hostilities” in the War Powers Resolution.

You can judge for yourself whether those replies are persuasive. I personally am sympathetic to all three. I have no way to judge the first, but I have no reason to doubt it either.

As for the second, anyone who has ever worked in a law firm, clerked for a judge, or represented a client should understand what Koh is saying. As a lawyer one makes credible arguments that further the interests of the client, but does not stray from one’s own sense of propriety. The voice of an academic, by contrast, is completely different. For an academic who has never tried to speak on behalf of a client—who has never sought to further a client’s interests within the bounds of acceptable argument—the distinction between advocate and academic may be an alien concept. As an academic he can bemoan the fact that the President almost always wins. As an advocate, his goal is to ensure that the President almost always wins.

As for the third, it is quite plausible that Koh’s views on certain matters may have changed over the course of thirty years. Indeed, one would hope that extensive time in senior government positions would temper one’s academic convictions. Some ideas are abandoned with age and exploration. For any serious academic, intellectual honesty should allow for the possibility of both consistency and correction. On this score, I think that we should suspend judgment until Koh returns to academic life full-time and he can either reconcile his past positions with his currents ones, or failing that, he can fully articulate why and how his views on certain critical questions may have changed in the crucible of public service.

UPDATE: Ken Anderson and Paul Rosenzweig have further thoughts on Koh’s speech here and here. I agree completely with what both say about Koh’s fiduciary duty and duty of loyalty. Ben Wittes agrees as well, but notes that Koh did not apply the same standard to lawyers in the Bush Administration.

This week was a blockbuster one in the ongoing battle between Chevron and Ecuador. On Wednesday, the arbitral tribunal adjudicating Chevron’s BIT claim issued an Interim Award ordering Ecuador “to take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within or without Ecuador of any judgment against [Chevron] in the Lago Agrio Case.”

The tribunal was at pains to emphasize the interim award was final and binding under Article 32 of the UNCITRAL Rules, which means that Chevron could pursue recognition and enforcement of the award in jurisdictions around the world. It could do so offensively by seeking declaratory relief in Ecuador (or elsewhere), or defensively in response to an attempt by the Ecuador plaintiffs to seek enforcement of the Ecuador judgment. Of course, the Interim Award is only binding on Ecuador and Chevron, so it is not clear what a domestic court outside Ecuador would do with an award imposing injunctive relief on Ecuador.

Meanwhile, yesterday the Second Circuit issued its long-awaited opinion in Chevron v. Naranjo. The Second Circuit’s crucial holding was that New York’s Uniform Foreign Money-Judgments Recognition Act precludes declaratory injunctive relief by a foreign judgment debtor. “There is … no legal basis for the injunction that Chevron seeks, and, on these facts, there will be no such basis until judgment-creditors affirmatively seek to enforce their judgment in a court governed by New York or similar law.”

The Second Circuit had little sympathy for Chevron’s attempt to pursue an antienforcement injunction, particularly given the comity concerns at stake.

“[W]hen a court in one country attempts to preclude the courts of every other nation from ever considering the effect of that foreign judgment, the comity concerns become far greater. In such an instance, the court risks disrespecting the legal system not only of the country in which the judgment was issued, but also those of other countries, who are inherently assumed insufficiently trustworthy to recognize what is asserted to be the extreme incapacity of the legal system from which it emanates. The court presuming to issue such an injunction sets itself up as the definitive international arbiter of the fairness and integrity of the world’s legal systems.”

But at the same time, the Second Circuit emphasized that it expressed “no views on the merits of the parties’ various charges and counter-charges regarding the Ecuadorian legal system and their adversaries’ conduct of this litigation, which may be addressed as relevant in other litigation before the district court or elsewhere.” It also avoided any decision with respect to the underlying RICO claims that Chevron has filed against the Ecuador plaintiffs and their lawyers, focusing simply on the improper procedural device that Chevron sought to employ to enjoin enforcement of the Lago Agrio judgment abroad.

Where does the case go from here? In Ecuador, Chevron has appealed to Ecuador’s highest court to review the case. No word yet as to whether Chevron will seek to have the arbitral tribunal’s Interim Award recognized and enforced in Ecuador. The arbitral tribunal is scheduled to hold hearings on February 11-12 to determine what steps Ecuador is taking to prevent enforcement of the Lago Agrio judgment.

As for the Ecuador plaintiffs’ efforts to enforce the judgment, there is no indication that Chevron will post an appeal bond, which means that the Ecuador plaintiffs are free to pursue enforcement anywhere in the world where Chevron has assets.

It appears that the Ecuador plaintiffs will not seek to have the judgment enforced within the United States. Ecuador Plaintiffs’ lawyer James Tyrrell stated yesterday that “The Ecuadorean plaintiffs are not coming to New York to enforce this judgment.” Given the locus of Chevron’s assets, it is not obvious why the plaintiffs have adopted this strategy, unless they have reason to believe that there is a high probability that the judgment would not be enforced.

There is, of course, the option of pursuing enforcement abroad. If the Invictus Memo is reliable, the Ecuador plaintiffs have identified twenty-seven nations where Chevron has substantial activities, including countries that are friendly with Ecuador, such as Colombia and Venezuela. That memo candidly states the ultimate end game strategy for the Ecuador plaintiffs:

“After approximately seventeen total years of litigation in the United States and Ecuador, the case against Chevron now enters its most critical, multi-faceted, and labor intensive…. With the ultimate goal of effecting and swift and favorable settlement, the strategy of the Plaintiffs’ Team will incorporate the following components: … managing the public relations impact of Chevron’s manipulation of the Cabrera narrative … [and] identifying jurisdictions globally that are most hospitable to an enforcement action.”

There has been much debate the past couple of days about whether the bomb attacks that have killed at least three Iranian nuclear scientists since 2010 qualify as terrorism.  Glenn Greenwald and Kevin Drum on the left and Andrew Sullivan on the right say “yes”; many of their readers (see Greenwald here) and the editor of Technology Review say “no.”  Those in the “no” camp insist that the attacks were legitimate targeted killings and thus cannot qualify as terrorism.

I have no definitive position on who is responsible for the killings, although the available evidence seems to point to Israel and not, as widely suspected, to the United States.  This Der Spiegel article, for example, says that Israeli intelligence sources have confirmed that the Mossad were responsible for the killing of Darioush Rezaei.  Moreover, Mark Perry published a blockbuster article in Foreign Policy yesterday that claims, based on a series of classified CIA memos, that Mossad agents posed as CIA officers in order to recruit members of the Iranian terrorist group Jundallah, whom Israel believed would be useful in its covert war against the Iranian government.

Let’s assume for sake of argument — and only for the sake of argument — that the killings were carried out solely by the Mossad.  Do those killings qualify as terrorism?

The first thing that needs to be said is that it is impossible to answer that question in the abstract.  Despite decades of efforts — and contrary to the rightly-maligned recent decision by the Appeals Chamber of the Special Tribunal for Lebanon — the international community has yet to agree on a general definition of terrorism.  The best we can do, then, is determine whether the killings qualify as terrorism under one or more of the specific anti-terrorism conventions that states have negotiated.  The most relevant one is obvious: the International Convention for the Suppression of Terrorist Bombings (“Terrorist Bombing Convention”), which currently has 164 States Parties, including both Israel and the United States.  Here is how Article 2 of the Terrorist Bombing Convention defines an act of terrorism:

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

There is little question that the killing of the Iranian nuclear scientists satisfies this definition of terrorism…

As readers know, a few of us on the blog have been debating whether the law of neutrality has any relevance to the United States’ conflict with al-Qaeda.  I’m thus delighted to announce that three essays on that very issue are now available on SSRN as part of a mini-symposium hosted by the Texas International Law Journal.  The lead essay is by Karl Chang, a lawyer with the Department of Defense; the two (long) responses are by yours truly and by Rebecca Ingber, who is on leave from the State Department’s Office of the Legal Adviser and is currently a CFR International Affairs Fellow at Columbia Law School.  Chang argues that the law of neutrality provides the relevant framework for the conflict with al-Qaeda; each in our own way, Ingber and I reject that idea.  Readers who are interested in the recognition of belligerency in non-international armed conflict will find that my response includes a much more academic treatment of that issue than has been possible on Opinio Juris.  Here are the abstracts…

It appears the right-wing has settled on a shiny new historical comparison to justify the targeted killing of Anwar al-Awlaki.  Here is Jack Goldsmith in the New York Times:

An attack on an enemy soldier during war is not an assassination. During World War II, the United States targeted and killed Adm. Isoroku Yamamoto, the architect of the Japanese attack on Pearl Harbor.

And here is John Tobin in the American Spectator:

Anwar al-Awlaki was actively recruiting terrorists to attack the U.S. He was, in effect, a battlefield commander, and the operation to kill him was in that sense well-grounded in the laws of war — little different from Operation Vengeance, in which the US military targeted and killed Admiral Isoroku Yamamoto during World War II. If Yamamoto had been an American-born traitor, Operation Vengeance would have been no less legitimate.

It genuinely amazes me that anyone could compare Al-Awlaki to Yamamoto with a straight face.  World War II was an international armed conflict (IAC), while the U.S. war on al-Qaeda is at most a non-international armed conflict (NIAC).  (The correct position is that it is not an armed conflict at all.)  That is a critical distinction, because the targeting rules in IAC and NIAC are completely different.  Admiral Yamamoto was the Commander in Chief of Japan’s Combined Fleet, the prototypical combatant who was targetable at any time by the U.S.  Al-Awlaki was a radical cleric whose targetability depended on whether he assumed a “continuous combat function” in AQAP (in which case he was, like Yamamoto, targetable at any time), or whether he was a civilian who directly participated in hostilities on various occasions (in which case he was targetable only for the duration of his direct participation).  Which is it?  I frankly don’t know — but I do know that determining Al-Awlaki’s targetability is vastly more legally and factually complicated than determining whether it was legal to kill an enemy Admiral in a formally-declared war.

Not so, of course, for Goldsmith and Tobin.  For them, that pesky international-law distinction between international and non-international armed conflict is irrelevant.  (Except, of course, when it comes to things like combatant’s privilege and POW status; the rules of IAC and NIAC are interchangeable only when interchangeability works in the United States’ favor.)  The U.S. once killed a bad guy during World War II, so of course it can kill a bad guy during the war on terror.  What could be more obvious?

UPDATE: Goldsmith responds to my post here, although he doesn’t bother to address the substance of what I wrote — concerning his elision of the distinction between IAC and NIAC and his failure to grapple with the distinction (critical for purposes of targeting in NIAC) between members of organized armed groups and civilians who directly participate in hostilities.  Instead, he simply cites other Americans who believe the analogy is justified (why that’s relevant he never explains) and claims that I somehow admit that the analogy is justified, because I say that Al-Awlaki could be targeted in much the same way as Yamamoto if he had assumed a continuous combat function in AQAP.  Of course, the entire thrust of the post was to point out that Al-Awlaki might also have been a civilian who directly participated in hostilities, in which case he could not be targeted in the same way as Yamamoto, making the analogy between the two deeply misleading.

Notice, also, how Goldsmith selectively quotes my post, ending the block quote with “I frankly don’t know.”  The entire sentence reads, of course, “I frankly don’t know — but I do know that determining Al-Awlaki’s targetability is vastly more legally and factually complicated than determining whether it was legal to kill an enemy Admiral in a formally-declared war.”  Goldsmith thus conveniently cuts off the thesis of my post in order to claim that I somehow agree with the Yamamoto analogy.  As is obvious from the omitted clause, I acknowledged my uncertainty concerning Al-Awlaki’s status precisely to make the point that determining targetability in NIAC is far more difficult than determining targetability in IAC — the primary reason why the Yamamoto analogy is so flawed.  Goldsmith ignores that aspect of my post; I guess, for him, the targeting rules in NIAC are so self-evident and straightforward, and the facts of Al-Awlaki’s case so obvious, that the only possible conclusion is that Al-Awlaki is no different than Yamamoto.  I envy his certainty.

Peter Margulies (Roger Williams) responded to my blogging about criminal membership and al-Bahlul at Lawfare.  I wrote a response, which Lawfare’s Bobby Chesney was kind enough to post for me.  Instead of reposting the lengthy exchange here, interested readers should check out the posts at Lawfare.  You can find Peter’s original post here, and my response here.  Feel free to weigh in below!

My thanks to Peter for his response.

UPDATE: Peter and I have gone one more round.  His response to my response is here, and my response to his response to my response is here.

David Hicks is back in the news here in Australia, because the DPP has announced that it intends to seize any royalties he receives from the sale of his book, Guantanamo: My Journey.  The DPP’s decision has received a great deal of criticism, for a variety of reasons: Hicks accepted a plea because the US government threatened to put him in isolation if he didn’t; he pleaded guilty to an imaginary war crime, material support for terrorism; and he has become something of an Australian folk hero in light of the gross unfairness of the military-commission system.

We have always known that Hicks’ prosecution was distorted by politics; as I discussed a couple of years ago, Col. Morris Davis resigned his position as chief prosecutor of the military commissions not long after Hicks pleaded guilty, alleging that his military superiors had interfered with the prosecution, and then testified on behalf of Salim Ahmed Hamdan, claiming that the selection of defendants and evidence in a variety of cases had been driven by political considerations instead of legal ones.

One of the people Col. Davis singled out for criticism in 2008 was William Haynes, the Pentagon’s general counsel, who had memorably said, “We can’t have acquittals, we’ve got to have convictions.”  A recent interview that Col. Davis gave Truthout, however, makes clear that Haynes’ role in the Hicks case was even more inappropriate than we imagined.  Here is a snippet:

When he was selected as chief prosecutor in September 2005, Davis said he made it clear to his superiors at the Pentagon that “the one case I did not want to start with was David Hicks.”

“The first case is the one that will get lots of attention,” Davis said. “Unfortunately, Hicks’ case was already in the pipeline. It was a terrible case. We told the world these guys are the ‘worst of the worst.’ David Hicks was a knucklehead. He was just a foot solider, not a war criminal. But when Congress passed the Military Commissions Act they authorized prosecuting material support, which is what Hicks was charged with, as a war crime. You could prosecute everyone at Guantanamo under that theory.”

Despite Davis’ concerns, the Bush administration was determined to charge Hicks, even if the evidence against him was thin, to help out an ally in the war on terror, US government documents obtained by Truthout show.

Davis also believes that’s what happened. He said he arrived at that decision not long after he received an urgent phone call in January 2007 from Pentagon General Counsel William “Jim” Haynes who asked him, “How quickly can you charge David Hicks?”

Davis said that was the first and only time Haynes had ever called him about a specific case and he found it to be “odd.” The phone call was made one day after US officials met with the ambassador to Australia, where Hicks’ case and its impact on Howard’s re-election campaign was discussed, according to a secret State Department document obtained by Truthout.

Davis informed Haynes, who Bush had twice nominated to serve on the Fourth Circuit Court of Appeals, that he could not initiate charges against Hicks “even if he wanted to” because the “Manual for Military Commissions” had not been prepared yet by Secretary of Defense Robert Gates and a “convening authority” who is supposed to oversee the process had not been appointed.

“The manual implements the law, in this case the Military Commissions Act of 2006,” Davis said. “It fills in the details the statute doesn’t. It fills in the elements of crimes, lays out the elements of crimes. When Haynes called me I said I couldn’t charge Hicks because I did not know what the elements of the offense are. I said, ‘wait for the manual to be written.’”

Haynes, who did not return emails or phone calls for comment, told Davis the manual was being “worked on” and the Pentagon was reviewing candidates to serve as convening authority. Haynes still wanted to know how quickly Hicks could be charged with war crimes after the military commission’s manual was signed by Gates.

“I told Haynes two weeks,” Davis said. “He said ‘two weeks! Two weeks is too long.’ Haynes then told me to ‘be ready’ and asked if I could charge other [Guantanamo detainees] in addition to Hicks. He didn’t say why.”

There is much more of interest in the article, particularly Col. Davis’s explanation of how Haynes and David Addington negotiated Hicks’ plea bargain behind his back — and how the plea bargain was designed to bolster the electoral prospects of John Howard, one of Bush’s last remaining allies, by making the Hicks case go away quietly.

Go read the whole article.  It’s ugly.

The following is a guest-post by Mark Kersten.  Mark is a PhD candidate in International Relations at the London School of Economics and author of the (excellent) blog Justice in Conflict. His research examines the nexus of conflict resolution and the pursuit of international criminal justice.

Trying to Get to the Bottom of the “Peace versus Justice” Debate in Libya

There are valid concerns and tensions which arise from pursuing justice in the midst of ongoing and unresolved conflict. The development of international criminal law has seen the transformation of tribunals from being ex post courts which adjudicate crimes after the resolution of conflict to ex ante courts. Ex ante courts, as Mahnoush Arsanjani and Michael Weisman have explained, “are established before an international security problem has been resolved or even manifested itself…[which] may create conflicting pressures on both the tribunals and the agencies and actors responsible for resolving the security problem.”

Virtually every argument in the peace-justice debate is logical, intuitive and, on some level, persuasive. The problem, however, is that not only are the arguments in the peace-justice debate contradictory; rather than reflecting realities on the ground or tangible evidence, they often reflect and privilege the convictions of individuals with particular political, moral and legal persuasions. Individuals on either side rarely examine evidence of particular cases, preferring instead to say that justice is absolutely necessary or absolutely problematic across contexts. Trying to find someone who believes pursuing international criminal justice helps in some cases and hinders in others would take a very long time.

In Libya, there has been no shortage of “peace versus justice” talk, most of it centring around whether the ICC’s investigations into and arrest warrants of Gaddafi, his son Saif and the Libyan head of intelligence, Abdullah al-Sanussi,  eliminates the possibility that Gaddafi steps down from power. The majority of those who have contributed to the debate suggest that the goal of justice is undermining or complicating efforts to negotiate a peace settlement to the conflict.

As I have elaborated elsewhere, there are at least six possible courses of action in Libya…

Professor Ingrid Wuerth’s article on foreign official immunity is thorough, thoughtful and provocative, and it’s a privilege to make my first OJ appearance commenting on it.  There is much to agree with in her analysis, and at the same time some questions to raise.

Just over a year has now passed since the Supreme Court decided, in Samantar v. Yousuf, that the Foreign Sovereign Immunities Act (FSIA) does not apply to claims by individual foreign government officials to immunity from the jurisdiction of U.S. courts.  By closing one door, however, the Court opened another, since it remanded the case for a determination whether the defendant “may be entitled to immunity under the common law” (id. at 2292-93).  Precisely how such a claim should be decided, and on what basis, the Court did not specify, noting only that “[w]e have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity” as it existed prior to the FSIA’s enactment in 1976.  Id. at 2291.

As the article points out, the decision left open a number of difficult and controversial issues about both law and process.  Should the decision on Samantar’s immunity fall, at least in the first instance, to the executive branch in accordance with pre-FSIA practice?  If so, would it be made on the basis of principles derived from international law, as the government had long contended?  Would a federal court consider itself bound by that decision as a matter of common law?

In the event, the executive branch filed a “statement of interest” in the District Court for the Eastern District of Virginia this past February concluding that Samantar “enjoys no claim of official immunity from this civil suit.”  The government’s submission emphasized two factors: (1) Samantar’s status as a former official of a state with no currently recognized government to request immunity on his behalf, and (2) the proposition that U.S. residents like Samantar “ordinarily should be subject to the jurisdiction of our courts, particularly when sued by U.S. residents.”  (Samantar had served as defense minister and prime minister in the Siad Barre regime in Somalia, is now living in the United States, and has been sued under the Alien Tort Statute and the Torture Victims Protection Act for various atrocities committed by government agents in Somalia.)  The following day, District Judge Leonie Brinkema issued an order noting that “[t]he government has determined that the defendant does not have foreign official immunity,” and “[a]ccordingly, defendant’s common law sovereign immunity defense is no longer before the Court.”  That decision has since been appealed to the Fourth Circuit.

Professor Wuerth challenges the constitutionality as well as the functionality of this procedure, in which the Department of State makes the decision and the court accepts it as binding.  Locating the issue within the general framework of foreign relations law, she criticizes the linked assertions that the President has “lawmaking power” and that the Department of State can “control” determinations of foreign official immunity, arguing that the constitutional basis for such assertions is at best tenuous.  Instead, she argues for the judicialization of immunity decisions, resting on federal common law, with at best a very limited role for the executive branch.

The constitutional arguments against the Executive Branch’s role are not insubstantial but in the end do not provide a clear, definitive answer.  Indeed, citing to the Supreme Court’s decision in American Insurance Association v. Garamendi, Professor Wuerth acknowledges that the Constitution leaves the question textually ambiguous, while giving the President (by virtue of historical gloss) the “vast share of responsibility for the conduct of our foreign relations.”  It is very difficult to argue that immunity determinations are not intimately related to the President’s constitutional authority to appoint and receive ambassadors and to conduct the country’s foreign relations, and it’s harder still to make a case that the Constitution requires them to be made by the judicial branch.

Would the federal courts be inherently better at deciding these issues?  Professor Wuerth’s proposal is to vest determinations of foreign official immunity in the federal courts “as a form of federal common lawmaking,” perhaps allowing for some limited deference for executive branch views (p. 954).  There’s little doubt that Congress could provide a new statutory framework committing the determinations to the courts with little or no input from the executive branch, under a kind of parallel FSIA for individuals.  But is there any empirical basis for thinking that judges would necessary make better informed decisions about a foreign official’s entitlement to immunity?  Immunity determinations are not simply exercises in applying settled law to established facts, and a long line of judicial precedent acknowledges that they involve sensitive judgments best left to the political branches.

That said, Professor Wuerth is entirely correct to raise concerns about the resurrected role of the State Department in making these determinations. As she notes (pp. 945-49), sovereign immunity decisions in the pre-FSIA era were sometimes inconsistent and not infrequently thought to have been influenced by political considerations.  Some characterized the internal process by which decisions were reached as lacking in procedural fairness.  The increasing number of requests for immunity posed a severe burden on the resources of the Office of the Legal Adviser.  It was for these and other reasons that the Department actively supported enactment of the FSIA and the transfer of sovereign immunity decision-making to the courts.  In returning post-Samantar to pre-FSIA procedures, the Department needs to ensure that those problems do not recur.  In particular, immunity determinations must be firmly grounded in international law and can neither be arbitrary nor based solely on political considerations.

In this regard, one has to raise at least one eyebrow at the executive branch’s emphasis, in Samantar on remand, on the fact that “no currently recognized government” had intervened on his behalf to request immunity.  If foreign official immunity derives from concepts of state sovereignty and rests on accepted principles of international law, then the lack of recognition of the current transitional government of Somalia should not have been determinative.  Conditioning immunity on recognition, friendly relations or the existence of a functional government could be read as acknowledgment that in the “circumstances” of the particular case, a refusal to grant immunity would not create any significant foreign policy problems.  It is not difficult to imagine how such an approach, if reciprocated, could create trouble for visiting U.S. officials in the courts of unfriendly foreign countries.  Here, it’s worth noting Iran’s announcement earlier this week that it plans to prosecute in absentia 26 current and former U.S. officials for human rights violations.

Under the new procedure, many if not most individual immunity cases in U.S. courts are likely to involve allegations under the ATS and the TVPA that foreign officials have violated the human rights of their own citizens in their own countries, just as in Samantar.   Unless the individual defendant is entitled to a broader form of immunity (i.e., as a current head of state or government or a duly accredited diplomat), the question is likely to turn on whether the acts in question were taken within the scope of that person’s official duties or functions.  And ultimately, the argument is (as it was in Samantar) that gross violations of internationally recognized human rights (or of jus cogens) can never legitimately be considered within anyone’s official duties or governmental functions.  In other words, U.S. courts will be effectively unconstrained by principles of sovereign immunity in cases challenging the legitimacy of actions of foreign governments through their officers and employees in respect of their own citizens within their own territories.

Depending on one’s perspective, this may be entirely appropriate and a very potent mechanism for promoting respect for human rights around the world.  It may even have been the unstated rationale for the executive branch’s decision to deny Samantar immunity.  And in a limited range of cases involving international law, courts already play a central role in determining whether particular acts fall within the scope of official duties (for example, in the case of consular officers or officials of international organizations within the United States).

But a Samantar-like situation is markedly different.  Under the “conduct-based” approach, determining a defendant’s entitlement to immunity will require the court to undertake an inquiry into the laws, policies and procedures of foreign governments.  While few governments will be inclined to cooperate in such an exercise, most cases are likely to raise more significant foreign relations concerns.  Is that really a proper task for federal courts to undertake on the basis of common law with little or no guidance from the executive branch?

Prof. Wuerth’s article gives us much to ponder and a strong, insightful basis on which to do so.

Thanks to Opinio Juris for inviting me to comment on Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, Professor Ingrid Wuerth’s timely and insightful article. The springboard for the article is Samantar v. Yousuf, the 2010 U.S. Supreme Court decision which held that the Foreign Sovereign Immunities Act (FSIA) does not apply to individual government officials. Samantar addressed only a discrete issue of statutory interpretation. The Court avoided any discussion of international law even though the parties and amici extensively briefed whether customary international law (CIL) confers immunity on foreign officials from lawsuits alleging human rights violations. Instead, the Justices instructed U.S. courts to determine the immunity of foreign officials under the “common law”—the legal regime that prevailed prior to the FSIA’s adoption.

Notwithstanding the Supreme Court’s inattention to the international law backdrop to the Samantar case, I fully agree with Professor Wuerth that CIL is relevant to how U.S. courts should develop the common law of foreign official immunity. I also agree that a return to the pre-FSIA immunity regime should not be understood as delegating to the State Department the conclusive authority to determine whether a defendant is immune in a particular case, or to dictate the legal principles that courts must apply when making that determination.

In this brief comment, I first highlight the major contributions of Professor Wuerth’s article and then focus on the intersection of foreign official immunity and international human rights litigation under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA)—a topic that Professor Curt Bradley and I analyze in greater detail in a recently-published article.

The Case Against the State Department has many virtues. I will mention only three. First, Professor Wuerth situates Samantar in the context of other areas of U.S. foreign relations law. She shows that what at first glance appears to be a narrow and technical decision in fact has implications for important unresolved doctrinal issues such as the status of customary international law in the U.S. legal system, the propriety of federal common lawmaking in the area of foreign affairs, and the executive branch’s authority to promulgate rules that bind domestic courts. Foreign relations scholars who have given only passing attention to Samantar would do well to reconsider the case in light of the article’s cogent analysis.

Second, Professor Wuerth challenges head on the State Department’s assertion that it and it alone has “the power to resolve each and every immunity case as it sees fit, and to set out immunity law binding on the courts even in cases where it does [not] make a specific recommendation” (pp. 938-939). She systematically considers and rejects the plausible justifications for this claim: the Constitution’s text and history, functional considerations, and the implied authorization of Congress. This is an audacious position, one that is squarely at odds with two World War II-era Supreme Court cases and a handful of more recent lower court decisions that appear to give the executive branch precisely what it seeks—carte blanche over foreign official immunity determinations. The article pulls no punches in critiquing the anemic reasoning of these cases and the executive branch arguments that invoke them, demonstrating their inapplicability to a post-Samantar world in which the FSIA, other federal statutes, and CIL all suggest a more robust role for U.S. courts to develop common law immunity principles.

Third, The Case Against the State Department offers a nuanced, if abbreviated, roadmap for judges to make foreign official immunity determinations. Professor Wuerth identifies three “constraints,” in descending order of importance, that “limit and shape” (p. 968) federal common lawmaking: striving for consistency with the FSIA, avoiding violations of international law, and deferring to the executive branch on certain discrete issues. Of these constraints, the first—the continuing relevance of the statutory immunity regime—is the most surprising. Samantar decisively rejected the FSIA’s applicability to foreign officials. It thus seems counterintuitive to argue that the statute has any bearing on the immunity of those officials. Yet the article demonstrates that the FSIA indeed remains relevant to a number of key issues, such as whether immunity has been waived, whether an entity (and thus its employees) is properly characterized a foreign state or its agency or instrumentality, and whether a suit nominally against an individual government official should in fact be treated as one against the foreign state itself.

These constraints apply without regard to the subject matter of the underlying litigation. However, judicial development of common law immunity principles is likely to engender the most controversy in suits against foreign officials alleging violations of international human rights law. As Professor Bradley and I recount in International Law and the U.S. Common Law of Foreign Official Immunity, in the three decades following the Second Circuit’s groundbreaking 1980 decision in Filartiga v Peña-Irala, human rights litigation under the ATS and TVPA flourished largely unencumbered by immunity concerns. (Suits against sitting heads of state were a notable exception.) A majority of courts held (erroneously, Samantar has now clarified) that the FSIA did apply to individuals—but only for conduct undertaken in their official rather than their personal capacity. And most courts also concluded that those individuals were not acting in an official capacity when they committed human rights abuses. In making these determinations, however, these decisions did not consider the CIL of foreign official immunity.

U.S. courts may revisit these issues following Samantar. Consider each of the three constraints discussed in The Case Against the State Department. If courts interpret common law immunity in parallel with the FSIA, the prospects for ATS and TVPA litigation would dim considerably. Most human rights abuses are committed under color of law, although often in violation of it. Yet as the Supreme Court explained in Saudi Arabia v. Nelson, “however monstrous such abuse[s] undoubtedly may be,” they are “peculiarly sovereign” acts and thus shielded by immunity.

To be sure, nothing in Samantar or in Professor Wuerth’s analysis requires courts to develop the common law in lock step with the FSIA’s limited exceptions to immunity. It is uncertain, however, whether human rights litigation fares much better under the other two alternatives. If courts follow the executive branch’s lead (whether absolutely or by affording it a substantial degree of deference), immunity determinations are likely to vary according to a lawsuit’s foreign relations considerations, such as the country involved, the official’s position in its government, and the particular human rights allegedly violated. Indeed, the government’s amicus brief in Samantar lists a hodgepodge of no less than thirteen factors relevant to its immunity determinations, with no indication of their relative weight or how they should be balanced in any particular case.

This leaves international law. Traditionally, CIL extended immunity to officials from proceedings in other countries’ courts for actions taken on their state’s behalf. In the criminal context, this immunity has quickly eroded over the past decade, with courts invoking human rights treaties and principles to exercise criminal jurisdiction over former officials, including heads of state, charged with violating jus cogens. However, no comparable erosion has yet occurred in the civil context. Although few decisions (mostly by the Italian Court of Cassation) have embraced a broad human rights exception to immunity, courts in several other countries (including Australia, New Zealand, and the United Kingdom), have expressly declined to do so. In addition, challenges to decisions in both camps are pending before the ECtHR and the ICJ. As a result, the balance between immunity and accountability in international law remains very much in flux.

A key question, therefore, is whether U.S. judges should take the lead in shaping CIL to expand the civil liability of foreign officials who commit human rights violations. The precedents built up over thirty years of ATS and TVPA litigation since Filartiga provide support for this approach. But the uncertain legal landscape may also suggest that “courts should refrain from creating conflicts with other nations and from resolving contested questions of international law in ways that might create foreign policy problems.” (p.969) Which of these approaches U.S. courts follow will go a long way toward shaping the post-Samantar common law of foreign official immunity.

I am very pleased to be able to comment on Ingrid Wuerth’s recent article, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department.  As readers of this blog are aware, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) generally does not apply to suits against individual foreign officials, and that the immunity of such officials is to be determined instead as a matter of common law.

The Executive Branch is now claiming (as it claimed before Samantar) that, when it chooses to do so, it should be able to determine for the courts whether to grant or deny individual immunity in a particular case.  This is true, the Executive argues, for both status-based immunity, which protects certain government officials (such as heads of state) from essentially any claims in foreign courts while the officials are in office, as well as for conduct immunity, which protects current and former government officials from claims in foreign courts relating to their official acts while in office.

Ingrid presents a strong critique of the Executive Branch’s position, based on constitutional text and structure, history, and functional considerations.  I agree with much of what she has to say, and the federal common law framework for individual immunity issues that she suggests (which would take account of statutory policies, international law, and appropriate deference to the Executive Branch, see pp. 967-75) overlaps with the considerations that Larry Helfer and I recently outlined in International Law and the U.S. Common Law of Foreign Official Immunity.  I will nevertheless highlight several ways in which I think the Executive Branch might be able to push back against Ingrid’s analysis.

First, Ingrid spends a lot of time contesting the claim that Congress has affirmatively “authorized” Executive Branch determinations of individual immunity (pp. 939-51), but I do not think the Executive needs to make that claim.  Instead, decisions like Dames & Moore v. Regan and Ex parte Quirin suggest that it is probably sufficient for the Executive to argue that Congress was aware of its judicially-recognized authority to determine individual immunity when it enacted the FSIA and did nothing to displace that authority.  Unfortunately for Ingrid’s position, the Supreme Court in Samantar provided some support for this sort of congressional acquiescence argument.  In explaining its conclusion that the FSIA did not apply to suits against individual officials, the Court referred to the Executive Branch’s pre-1976 control over individual immunity determinations and suggested that this control survived the enactment of the FSIA:  “We have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity.”  (To her credit, Ingrid acknowledges this statement, but she focuses on whether it supports a claim of congressional authorization and does not specifically consider its significance for a softer claim of congressional acquiescence.)

Second, Ingrid’s functional critique of Executive control over immunity determinations may be somewhat less persuasive than her formal critique.  She notes that the pre-FSIA regime, in which the State Department’s views about foreign governmental immunity were treated by courts as controlling, “proved problematic and was abandoned” (p. 924).  While that is true, the lesson from that experience was that the area should be regulated by Congress, not that courts should develop the law on their own.  The question that Ingrid’s article addresses, however, is what to do in the absence of congressional regulation.  The pre-FSIA history does not necessarily show that the answer is to have judicial rather than Executive Branch lawmaking.  Although the Executive Branch may not compare favorably to Congress as a lawmaker on issues of individual immunity, it has certain advantages over the courts, including both better access to information (including information about reciprocity by other countries) and democratic accountability.  Perhaps because of those considerations, the courts became less comfortable with independent judicial lawmaking on issues of immunity after Erie v. Tompkins, which made the source-of-authority question more salient, and it is not self-apparent why the courts should be more comfortable with such a lawmaking role today.

Finally, Ingrid acknowledges that, even if the Executive does not have the authority to control immunity determinations, it may be entitled to some deference in these cases (pp. 970-73).  Among other things, foreign official immunity implicates difficult and developing issues of customary international law (as Helfer and I discuss in our article), and the Executive’s views about what position the United States should take on these issues are likely to be given significant weight by the courts.  There are also a variety of other issues potentially relevant to the common law of immunity, such as the weight that should be given to interventions by the foreign government, and the Executive’s lead role in conducting U.S. foreign policy may suggest the desirability of giving it deference on these issues as well.  If so, it is not clear how much of a difference there will be between a regime of Executive Branch control, which Ingrid contests, and a regime of Executive Branch deference, which she does not necessarily contest.

The remand proceedings in Samantar provide an illustration.  The district court there initially appeared to give absolute deference to the Executive Branch’s position that immunity should not be conferred on the former Somali official, as Ingrid notes (p.918).  In a subsequent hearing on a motion for reconsideration, however, the judge made clear that she was not in fact treating the Executive Branch’s position as dispositive but rather was simply giving it deference.  The result was nevertheless the same.

Despite these points, I want to emphasize that Ingrid has written an excellent and timely article that will serve as an important counterpoint to the Executive Branch’s position.