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.