[William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]
On Monday, the Solicitor General responded to the Supreme Court’s call for his views in Samantar v. Yousuf, a case raising questions of foreign official immunity. After significant diplomatic efforts to determine the official position of the Somali Government (see below), the State Department decided to stand by its prior determination that Samantar was not immune from the jurisdiction of U.S. courts in a case that found him liable for torture and extrajudicial killing. Although the Solicitor General disagrees with the reasoning of the decision below, the State Department’s decision not to alter its immunity determination clearly makes the case uncertworthy. “[B]ecause the court of appeals’ judgment . . . is consistent with the Executive Branch’s determination that petitioner is not immune,” the U.S. brief notes, “this Court should not grant review simply to correct the erroneous reasoning in the Fourth Circuit’s opinion” (p. 23).
Still, according to the Solicitor General, the Fourth Circuit erred in two respects. First, it gave the State Department’s determination of conduct-based immunity only “substantial weight” rather than treating that determination as binding on the court. Second, it announced “a new categorical judicial exception to conduct-based immunity for cases involving alleged violations of jus cogens norms” (p. 12). With respect to the second point, I have previously explained that the Fourth Circuit did not create an “exception” to an existing immunity but rather, quite properly, addressed the question whether torture and extrajudicial killing can be “official acts” to which conduct-based immunity attaches in the first place. Nor is the Fourth Circuit’s position “new,” having been the consistent position of U.S. courts of appeals in human rights cases for at least twenty years. See, e.g., Enahoro v. Abubakar, 408 F.3d 877, 893 (7th Cir. 2005) (discussing prior cases and noting that “officials receive no immunity for acts that violate international jus cogens human rights norms (which by definition are not legally authorized acts)”).
But what of the Solicitor General’s first argument that State Department determinations with respect to foreign official immunity are binding on the courts? Ingrid Wuerth has argued persuasively that the executive branch lacks independent constitutional authority to make rules of foreign official immunity. As Chief Justice Roberts reiterated in Medellin v. Texas, “‘the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.’” 552 U.S. 491, 526-27 (2008) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)). Whatever legal force of the State Department’s immunity determinations may have depends entirely on a federal common law rule created by the Supreme Court. Prior to 1938, federal courts did not defer to executive branch determinations of immunity. See, e.g., Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562 (1926). In a series of cases beginning in 1938, the Supreme Court established a rule of federal common law delegating authority over immunity determinations to the State Department. See Compania Espanola de Navegacion Maritima, S.A. v. The Navemar, 303 U.S. 68 (1938); Ex Parte Peru, 318 U.S. 578 (1943); Republic of Mexico v. Hoffman, 324 U.S. 30 (1945). But the discretion the Supreme Court has given as a matter of federal common law, the Supreme Court may also take away. And as Wuerth and Harlan Cohen have pointed out, the current Supreme Court is not very deferential to the executive on questions of foreign affairs.
The U.S. brief notes that foreign official immunity, like foreign state immunity, rests on “considerations of comity” (p. 17). But as I explain in a draft paper, the notion that questions of comity must be left to the executive branch is a myth. Indeed, the State Department’s experience with determinations of foreign state immunity in the decades prior to passage of the 1976 Foreign Sovereign Immunities Act (FSIA) shows what harm executive discretion can do not only to the rule of law but also to U.S. foreign relations. When the State Department had the power to determine the immunity of foreign states from suit in U.S. courts, foreign states naturally lobbied the Department for immunity. Moreover, despite the State Department’s best efforts to apply the restrictive theory of foreign sovereign immunity faithfully, foreign governments tended to view the denial of immunity as a political rather than a legal decision. It was precisely to avoid this negative impact on U.S. foreign relations that the executive branch asked Congress to remove its authority by passing the FSIA. “The transfer of this function to the courts,” the Secretary of State and Attorney General explained in their letter of transmittal to Congress, would “free the Department from pressures by foreign states to suggest immunity and from any adverse consequences resulting from the unwillingness of the Department to suggest immunity.”
As John Bellinger predicted, the same dynamic is now playing itself out in the context of foreign official immunity. When the Samantar case first came before the Supreme Court in 2010, the U.S. amicus brief (pp. 24-26) identified a number of factors the State Department might consider in making an immunity determination. On remand, the State Department’s 2011 determination emphasized two of particular relevance to Samantar’s case: (1) the lack of a recognized government in Somalia; and (2) the fact that the defendant was a U.S. resident who “ordinarily should be subject to the jurisdiction of our courts, particularly when sued by U.S. residents.” In January 2013, the United States recognized the Government of Somalia. As recounted in the U.S. brief filed Monday (pp. 7-8), there followed a confusing series of letters from different members of the Somali Government alternately purporting to assert and to waive Samantar’s immunity. In January 2014, the Solicitor General told the Supreme Court that “further diplomatic discussions” were needed “to clarify the position of the Government of Somalia on the immunity issue.” By April, the State Department had still not been able to have the necessary discussions because of the security situation in Somalia. In July, the Department was finally able to meet with the proper Somali official, who indicated that Somalia would not seek immunity for Samantar, but the Department received no diplomatic correspondence to confirm this position. So on December 23, 2014, the State Department sent Somalia a formal communication, relating its understanding that Somalia did not wish to seek immunity for Samantar and asking Somalia to respond by January 23, 2015 if that understanding were in error. Having received no response from Somalia, the State Department reaffirmed its determination that Samantar was not immune in a letter to the Solicitor General dated January 28, 2015. See U.S. brief (pp. 10-11).
Ironically, the State Department invested all this diplomatic energy with respect to a factor that is not even dispositive in its analysis. Although a foreign government may waive the immunity of its current or former officials, the United States does not treat a foreign government’s assertion of immunity as binding. See, e.g., Statement of Interest and Suggestion of Immunity at 9, Rosenberg v. Lashkar-e-Taiba (“Notwithstanding such a request, however, the Department of State could determine that a foreign official is not entitled to immunity.”). As I suggested in an earlier post, I find it hard to believe that the State Department would have changed its immunity determination with respect to Samantar, who has admitted liability for torture and extrajudicial killing, even if Somalia had sought immunity on his behalf. The State Department should be commended for its diligent efforts to clarify Somalia’s position in this case. But those efforts are likely to have two unintended and harmful effects: (1) to raise the profile of the case in U.S.-Somali relations; and (2) to suggest to Somalia and other governments that they can influence State Department’s determinations in future cases. As was true with foreign state immunity four decades ago, executive discretion over foreign official immunity is proving to be a poisoned chalice.
The better course is the one taken by the Fourth Circuit—to allow federal courts to decide the immunity of foreign officials under federal common law, including the established rule that jus cogens violations are not “official acts” for purposes of conduct-based immunity. Foreign governments might not like the results in every case, but they would not be able to blame the executive branch for the outcomes. Of course, conclusory allegations of a jus cogens violations would not be enough to allow a suit against a foreign official to go forward. Under Ashcroft v. Iqbal, 556 U.S. 662 (2009), the plaintiff must plead facts sufficient to make a facially plausible claim that the defendant is liable, which in the case of a foreign official may include that defendant’s lack of immunity from suit. If the relevant facts are in dispute, the trial court may allow jurisdictional discovery limited to the question of immunity, as courts currently do with questions of state immunity under the FSIA. See, e.g., Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534 (5th Cir. 1992) (noting that jurisdictional discovery “should be ordered circumspectly and only to verify allegations of specific facts crucial to an immunity determination.”). At present, the State Department plays this screening role in cases against foreign officials, suggesting immunity if the complaint does not allege facts establishing a lack of immunity with sufficient specificity. But surely courts are better equipped for the task.
I expect the Supreme Court to deny cert in Samantar. But the uncomfortable position of the State Department in these cases—and the corresponding harm to U.S. foreign relations—will continue until Congress or the courts make clear that the executive branch does not have the final word on determinations of foreign official immunity.