Excerpts of court documents filed by US Justice Dept. on Jan 13, 2012, in response to US intentions sought by the District Court of District of Columbia, in the matter of Torture Victim Protection legal action, Kasippillai Manoharan, et al., v. Percy Mahendra Rajapaksa:
The United States of America, by and through the undersigned counsel, respectfully files this status report concerning the Court’s December 30, 2011 Order regarding a Statement of Interest:
1. Plaintiffs seek a judgment under the Torture Victim Protection Act against President Mahendra Rajapaksa of Sri Lanka for, inter alia, alleged command responsibility for extrajudicial killings of certain Sri Lankan nationals. See Kasippillai Manoharan, et al., v. Percy Mahendra Rajapaksa (Dkt. #1).
2. On December 16, 2011, Defendant filed a motion to solicit the views of the United States regarding the Defendant’s entitlement to head of state immunity, the justiciability of the claims under the political question doctrine, and the applicability of the Act of State doctrine. (Dkt. #9).
3. On December 30, 2011, and in response to Defendant’s motion, this Court requested that the United States indicate by January 13 whether it would file a Statement of Interest in this case and, if so, when it would be filed. (Dkt. #10).
4. The United States is filing separately on this date a Suggestion of Immunity in this case recognizing the immunity of President Mahendra Rajapaksa, the President and sitting head of state of the Democratic Socialist Republic of Sri Lanka. As explained in that Suggestion of Immunity, the United States believes that its determination regarding President Rajapaksa’s immunity is dispositive of this matter. Therefore, the United States will not address the political question doctrine or the Act of State doctrine at this time.
SUGGESTION OF IMMUNITY SUBMITTED BY THE UNITED STATES OF AMERICA
Case 1:11-cv-00235-CKK Document 12 Filed 01/13/12
Pursuant to 28 U.S.C. § 517,1 the United States respectfully informs this Honorable Court of the interest of the United States in the pending lawsuit against His Excellency President Mahinda Rajapaksa (sued as “Percy Mahendra Rajapaksa”), the President and sitting head of state of the Democratic Socialist Republic of Sri Lanka, and hereby suggests to the Court the immunity of President Rajapaksa from this suit.2 In support of its interest and suggestion, the United States sets forth as follows:
1. The United States has an interest in this action because the sole Defendant, President Rajapaksa, is the sitting head of state of a foreign state, thus raising the question of President Rajapaksa’s immunity from the Court’s jurisdiction while in office. The Constitution assigns to the U.S. President alone the responsibility to represent the Nation in its foreign relations. As an incident of that power, the Executive Branch has sole authority to determine the immunity from suit of sitting heads of state. The interest of the United States in this matter arises from a determination by the Executive Branch of the Government of the United States, in consideration of the relevant principles of customary international law, and in the implementation of its foreign policy and in the conduct of its international relations, to recognize President Rajapaksa’s immunity from this suit while in office.3 As discussed below, this determination is controlling and is not subject to judicial review. No court has ever subjected a sitting head of state to suit once the Executive Branch has suggested the head of state’s immunity.
2. The Legal Adviser of the U.S. Department of State has informed the Department of Justice that Sri Lanka has formally requested the Government of the United States to suggest the immunity of President Rajapaksa from this lawsuit. The Legal Adviser has further informed the Department of Justice that the “Department of State recognizes and allows the immunity of President Rajapaksa as a sitting head of state from the jurisdiction of the United States District Court in this suit.” Letter from Harold Hongju Koh to Tony West
3. The immunity of foreign states and foreign officials from suit in our courts has different sources. For many years, such immunity was determined exclusively by the Executive Branch, and courts deferred completely to the Executive’s foreign sovereign immunity determinations. See, e.g., Republic of Mexico v. Hoffmann, 324 U.S. 30, 35 (1945) (“It is therefore not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.”). In 1976, Congress codified the standards governing suit against foreign states in the Foreign Sovereign Immunities Act, transferring to the courts the responsibility for determining whether a foreign state is subject to suit. 28 U.S.C. §§ 1602 et seq.; see id. § 1602 (“Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.”).
4. As the Supreme Court recently explained, however, Congress has not similarly codified standards governing the immunity of foreign officials from suit in our courts. Samantar v. Yousuf, 130 S. Ct. 2278, 2292 (2010) (“Although Congress clearly intended to supersede the
common-law regime for claims against foreign states, we find nothing in the statute’s origin or aims to indicate that Congress similarly wanted to codify the law of foreign official immunity.”).
Instead, when it codified the principles governing the immunity of foreign states, Congress left in place the practice of judicial deference to Executive Branch immunity determinations with respect to foreign officials. See id. at 2291 (“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.”). Thus, the Executive Branch retains its historic authority to determine a foreign official’s immunity from suit, including the immunity of foreign heads of state. See id. at 2284–85 & n.6 (noting the Executive Branch’s role in determining head of state immunity).
5. The doctrine of head of state immunity is well established in customary international law. See Satow’s Guide to Diplomatic Practice 9 (Lord Gore-Booth ed., 5th ed. 1979). In the United States, head of state immunity decisions are made by the Department of State, incident to the Executive Branch’s authority in the field of foreign affairs. The Supreme Court has held that the courts of the United States are bound by suggestions of immunity submitted by the Executive Branch. See Hoffman, 324 U.S. at 35–36; Ex parte Peru, 318 U.S. 578, 588–89 (1943). In Ex parte Peru, in the context of foreign state immunity, the Supreme Court, without further review of the Executive Branch’s immunity determination, declared that the Executive Branch’s suggestion of immunity “must be accepted by the courts as a conclusive determination by the political arm of the Government.” 318 U.S. at 589. After a suggestion of immunity is filed, it is the “court’s duty” to surrender jurisdiction. Id. at 588. The courts’ deference to Executive Branch suggestions of foreign state immunity is compelled by the separation of powers. See, e.g., Spacil v. Crowe, 489 F.2d 614, 619 (5th Cir. 1974).
6. For the same reason, courts have also routinely deferred to the Executive Branch’s immunity determinations concerning sitting heads of state. See Ye v. Jiang Zemin, 383 F.3d 620, 626 (7th Cir. 2004) (“The obligation of the Judicial Branch is clear — a determination by the Executive Branch that a foreign head of state is immune from suit is conclusive and a court must accept such a determination without reference to the underlying claims of a plaintiff.”); Saltany v. Reagan, 702 F. Supp. 319, 320 (D.D.C. 1988) (holding that the suggestion
of Prime Minister Thatcher’s immunity was conclusive in dismissing a suit that alleged British complicity in U.S. air strikes against Libya), aff’d in part and rev’d in part on other grounds, 886 F.2d 438 (D.C. Cir. 1989).
When the Executive Branch suggests the immunity of a sitting head of state, judicial deference to that suggestion is predicated on compelling considerations arising out of the Executive Branch’s authority to conduct foreign affairs under the Constitution.
See Ye, 383 F.3d at 626 (citing Spacil, 489 F.2d at 618). Judicial deference to the Executive Branch in these matters, the court of appeals noted, is “motivated by the caution we believe appropriate of the Judicial Branch when the conduct of foreign affairs is involved.” Id.
See also Spacil, 489 F.2d at 619 (“Separation-of-powers principles impel a reluctance in the judiciary to interfere with or embarrass the executive in its constitutional role as the nation’s primary organ of international policy.” (citing United States v. Lee, 106 U.S. 196, 209 (1882))); Ex parte Peru, 318 U.S. at 588.4 As noted above, in no case has a court subjected a sitting head of state to suit after the Executive Branch has suggested the head of state’s immunity.5
7. Under the customary international law principles accepted by the Executive Branch, head of state immunity attaches to a head of state’s status as the current holder of the office. After a head of state leaves office, however, that individual generally retains residual immunity only for acts taken in an official capacity while in that position. See 1 Oppenheim’s International Law 1043–44 (Robert Jennings & Arthur Watts eds., 9th ed. 1996). In this case, because the Executive Branch has determined that President Rajapaksa, as the sitting head of a
foreign state, enjoys head of state immunity from the jurisdiction of U.S. courts in light of his current status, President Rajapaksa is entitled to immunity from the jurisdiction of this Court over this suit.
CONCLUSION
For the foregoing reasons, the United States respectfully suggests the immunity of President Rajapaksa in this action.
Dated: January 13, 2012 Respectfully submitted,
TONY WEST
Assistant Attorney General
VINCENT M. GARVEY
Deputy Branch Director
/s/ Judson O. Littleton
JUDSON O. LITTLETON (TX Bar No. 24065635)
JOHN G. SETTER, JR. (VA Bar No. 82621)
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
Washington, DC 20001
Counsel for the United States of America
TC