Foreign Officials Immunity: The Judicialization of Immunity Decisions?

by David Stewart

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.

Foreign Officials Immunity: Implications for Human Rights Litigation

by Larry Helfer

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.

Foreign Officials Immunity: A Response to Wuerth

by Curtis Bradley

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.

Foreign Officials Immunity Determinations in U.S. Courts: The Case Against the State Department

by Ingrid Wuerth

The article, Foreign Officials Immunity Determinations in U.S. Courts:  The
Case Against the State Department
, considers the executive branch’s power to make foreign official immunity determinations that are binding in U.S. courts. As many readers know, the Foreign Sovereign Immunities Act governs the immunity of foreign states in U.S. courts. This statute does not apply to the immunity of individual foreign officials, however, as the Supreme Court held in Yousuf v. Samantar (2010).

Instead, the Court reasoned in Samantar, the immunity of foreign government officials is controlled by common law. But there is no extant body of federal or state common law governing foreign official immunity, and the Court did not clarify how this law should be developed going forward. The State Department claims the constitutional power to make individual immunity determinations on a case-by-case basis that are binding on the courts, and that the immunity principles articulated by the government should be followed even in cases where it does not make a specific determination. This argument was made to Supreme Court in Samantar (pages 8-13 and 27-28), and also in the 2007 briefing in the Dichter case before the Second Circuit, (pages 2-4).  The issue is a significant one in pending cases: in February, the government submitted a Statement of Interest in the Samantar case on remand (opposing immunity), the district court denied immunity shortly thereafter, and the defendant’s motion for reconsideration was denied.   In March, the government suggested immunity for former Colombian President Alvaro Uribe in the Giraldo v. Drummond case.

The article considers potential constitutional, statutory, and functional bases for the power claimed by the executive branch, and finds them unconvincing.  With respect to the Constitution, there are two older admiralty cases that reason in cursory terms that the executive branch controls foreign state immunity determinations. These cases do not discuss the text of the Constitution, which is generally understood as vesting “law-making” power in Congress, not the executive branch, as emphasized in Youngstown and more recently in Medellin.  Although the Court has held that President has the power to preempt state law by settling claims with foreign governments, immunity determinations share neither the long-standing history nor the (implicit) approval of Congress, both of which the Court has relied upon in the claim-settlement context.

Whether you agree with this argument or not, one purpose of the article is to show the link between the power asserted in the Samantar line of cases and the President’s power in foreign affairs cases more generally, which neither the government’s briefing nor the Court’s opinion addresses.

Turning to statutory arguments, one might argue that the FSIA itself implicitly authorizes the President to make binding immunity determinations for government officials because the statute is explicitly designed to limit executive power – but it applies only to cases against states, not those brought against officials.  Indeed, there is language in Samantar that suggests this, although there is also language that points that other way.  Other statutes from which the Court has inferred congressional approval or acquiescence are significantly different from the FSIA:  they are designed to empower (not limit) the President.

Binding immunity determinations by the executive branch are also problematic from a functional perspective.  Courts will make determinations about the immunity of states by applying the statute, yet in many cases there will be overlap between issues that arise in determining individual and state immunity.  Examples include determination of agency or instrumentality status (relevant to whether or not the individual is a government official at all), and waiver.  There are thus risks of inconsistent adjudications if the courts control the immunity of states, and the executive controls the immunity of individual defendants, especially as both kinds of defendant might be sued in the same case.  The statute was designed in part to prevent inconsistent adjudications, however.

Other functional considerations also suggest that executive branch immunity determinations will not work well. Executive branch determinations of state immunity were treated as binding on the courts from the early 1940’s through the late 1970s (when the FSIA was enacted), and the results were unsatisfactory – as the State Department itself argued to Congress in support of the FSIA. Although the State Department will surely make reasoned and careful immunity determinations, these functional problems will over time arise in cases against individuals just as they did in cases against states.  Finally, there is strong support in the case law for the courts’ power to develop federal common law of foreign official immunity:  this is the approach the Court has taken in the Act of State context which is quite similar to immunity, and it is especially appropriate to ensure that Congress’s goals in FSIA are realized, as the Court reasoned with respect to the Federal Tort Claims Act in the Boyle case.

There are many issues I have not addressed in this post, including international law and comparative analysis, and comments on all aspects of foreign official/state immunity are welcome.  Thanks in advance to the three people who have agreed to formally comment on this post and the article.

Discussion on Foreign Officials Immunity

by Roger Alford

Over the course of the next few days we are pleased to have Ingrid Wuerth discuss her article on Foreign Officials Immunity Determinations in U.S. Courts: The Case Against the State Department. Her article was recently published in the Virginia Journal of International Law. She argues that the text and structure of the Constitution, functional and historical arguments, the Court’s case law, and implied congressional authorization are all examined and rejected as possible grounds for the power asserted by the executive branch to make determinations as to foreign officials immunity. Instead, the development by courts of a federal common law of individual immunity (with no binding authority in the executive branch) fits comfortably within the existing jurisprudence on federal common law and is preferable on functional grounds.

Curtis Bradley, Larry Helfer and David Stewart will respond to Ingrid’s article. Welcome!