The dog that caught the car: observations on the past, present, and future approaches of the office of the legal adviser to official acts immunities.

• Author: Bellinger, John B., III
• Position: Symposium: Foreign State Immunity at Home and Abroad

ABSTRACT

The Supreme Court's decision in Samantar v. Yousuf vindicated the position of the State Department's Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by common law and customary international law as articulated by the Executive Branch, rather than by the Foreign Sovereign Immunities Act of 1976. But the decision will place a burden on the Office of the Legal Adviser, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the United States. The State Department will be lobbied both by foreign governments who want to protect their officials and by plaintiffs and human rights advocates who would like to recognize exceptions to official immunities. In deciding whether to recognize the immunities of foreign government officials, the State Department will have to consider the reciprocal impact on U.S. officials who may be sued in foreign courts.

TABLE OF CONTENTS I. THE FIRST TEST--CHUIDIAN II. DICHTER AND SAMANTAR--THE TURNING POINT III. THE BURDEN OF SAMANTAR IV. A JUS COGENS EXCEPTION? V. CONCLUSION For at least fifty years, the Office of the Legal Adviser of the U.S. Department of State advanced the position that foreign government officials enjoy immunity under the common law from suit and legal process in U.S. courts for acts relating to their official duties. Even after the enactment of the Foreign Sovereign Immunities Act (FSIA) in 1976, (1) which codified procedures for lawsuits against foreign governments, the Legal Adviser's Office continued to argue that the immunity of current and former foreign officials is governed by the common law rather than the FSIA. (2) The basis upon which foreign officials can claim immunity is important because the scope of common law immunity varies and generally is not coextensive with the FSIA.

From 1990 to 2009, a majority of circuit courts rejected the Legal Adviser's arguments, holding instead that foreign government officials enjoy immunity under the FSIA. (3) In 2010, however, in Samantar v. Yousuf, the Supreme Court adopted the Legal Adviser's longstanding position, holding that the FSIA applies only to governments, not officials. (4) The Court left unresolved the question of whether and to what extent the common law recognizes immunity for foreign officials. As a result, Samantar will alter significantly the role of the Legal Adviser's Office in future immunity determinations of foreign officials. I will review briefly the history of the debate concerning the law applicable to foreign official immunity, and offer some comments about the effect Samantar likely will have on the State Department going forward.

1. THE FIRST TEST--CHUIDIAN

   In 1988, the Legal Adviser's Office had its first opportunity to test its argument that official immunities are governed by common law, not the FSIA. In Chuidian v. Philippine National Bank, a suit against a Philippine government official, (5) the State and Justice Departments filed a statement of interest with the district court, arguing that the foreign official enjoyed immunity under the common law, as recognized and expressed by the Executive Branch, and marshaled several arguments in support of this position. (6) First, the government's statement of interest noted that while "courts appear not to have had occasion to squarely address this question," the text of the FSIA, as well as its legislative history, demonstrates that the FSIA did not govern immunity claims for foreign government officials. (7) Second, the government argued that "the rationale for the FSIA's exceptions to absolute immunity--that a foreign sovereign doing business in the United States assents to U.S. jurisdiction over its commercial activities--does not apply to an official carrying out official duties for the sovereign." (8) Instead, the government argued, the immunity of foreign government officials "should be determined in accordance with the general principles of sovereign immunity, rather than in accordance with the FSIA." (9) Under the common law, the government argued, "the general rule is that an official should be shielded from personal liability for the performance of official functions." (10)

   On appeal, the Ninth Circuit rejected the State Department's argument, instead holding that the FSIA applies to both government entities and officials. (11) The court recognized that terms used in the FSIA like "agency" and "instrumentality" would "perhaps more readily connot[e] an organization or collective," but nonetheless held that such terms did not "necessarily exclude individuals." (12) Further, the Ninth Circuit found persuasive the argument that a suit against a foreign government official acting in his official capacity "is the practical equivalent of a suit against the sovereign directly," and that it would circumvent the purposes of the FSIA to allow "litigants to accomplish indirectly what the Act barred them from doing directly." (13)

   Over the next fifteen years, the State Department remained on the sidelines as other courts followed Chuidian's holding that foreign government officials were covered by the FSIA. (14) During this period, to the extent that the U.S. government filed statements of interest or amicus briefs in cases that implicated the immunity of foreign government officials, its arguments were consistent with its position on the limited scope of the FSIA, even if it did not attempt to relitigate the issue. (15)

   The reasons for the State Department's lack of participation in this debate following Chuidian are unclear, but its silence may have been due to the fact that courts did not solicit the government's views, (16) or perhaps because foreign governments did not press the issue. Both of these factors are important in whether the Department decides to file a suggestion of immunity. (17) In any event, the so-called "Chuidian doctrine" remained the uniform view among the circuit courts until 2005, when the Seventh Circuit became the first to hold that the FSIA was inapplicable to foreign officials in Enahoro v. Abubakar. (18)

2. DICHTER AND SAMANTAR--THE TURNING POINT

   It was not until 2006, when I was the Legal Adviser, that the State Department decided to press the issue again, this time in a suit brought against Avi Dichter, the former Israeli intelligence chief. (19) This case concerned the July 2002 bombing of an apartment building in the Gaza Strip by the Israeli Defense Forces designed to kill Mustafah Shehadeh, an alleged leader of Hamas. (20) While the bombing succeeded in this objective, 14 civilians were killed and over 150 were wounded in the attack. (21) Those victims filed suit against Dichter under the Alien Tort Statute, (22) and the Torture Victim Protection Act, (23) alleging that Dichter authorized, planned, and directed the bombing. (24) The State Department publicly criticized the Shehadeh attack and the risk it posed to innocent civilian lives. (25) However, as is often the case, the interests of the State Department with respect to the question of official acts immunity are independent from the underlying subject matter of the dispute.

   Upon the court's invitation for the views of the State Department, (26) the Legal Adviser's Office and Justice Department filed a fifty-page statement of interest in the Southern District of New York, arguing that Dichter enjoyed immunity under customary international law, as recognized by the State Department. (27) I cannot claim primary credit for this brief, although I was extensively involved in reviewing it. It was the brainchild of Catherine Brown, then the Assistant Legal Adviser for Diplomatic Law, and was drafted in conjunction with attorneys in the Department of Justice. (28)

   In our Dichter statement of interest, in addition to arguing that neither the text of the FSIA nor its legislative history supported its application to foreign officials, (29) we also argued that allowing foreign officials to be sued for their official conduct would depart from customary international law, aggravate relations with foreign states, and expose our own officials to similar suits abroad. (30) The district court rejected the United States' argument. (31) On appeal to the Second Circuit in 2007, we filed an amicus brief which reiterated this position before the district court, and further argued that courts' deference to the Executive Branch in foreign official immunity cases was grounded in constitutional separation of powers principles. By analyzing official acts immunity cases under the FSIA, we wrote that "Chuidian's approach ... undermines a function exercised by the Executive under our constitutional framework," (32) but that instead, "[u]nder separation of powers principles, the only permissible inference from the FSIA's silence concerning the immunity of foreign officials is that Congress did not attempt to supplant the Executive's long-recognized authority to recognize and define [foreign officials'[ immunity." (33)

   This time, our arguments found traction. The Second Circuit accepted that the common law provides immunity for the formal acts of former officials, although the court stopped short of holding that the FSIA was inapplicable per se. (34) Because the State Department and Justice Department filed a statement of interest recognizing that Dichter was entitled to immunity, the Second Circuit deferred to the Executive Branch and held that Dichter was "immune from suit under common-law principles that pre-date, and survive, the enactment of [the FSIA]." (35) The Second Circuit, however, did not attempt to explain why the common law of foreign official immunity survived the enactment of the FSIA, while the Executive's practice of suggesting immunity for foreign states, agencies and instrumentalities was wholly supplanted by that statute. (36)

   Simultaneously, the Samantar case was proceeding through...