In a summary order yesterday, a panel of the Second Circuit affirmed the dismissal by EDNY Judge Dora Irizarry of an Alien Tort Statute suit against two former directors of the Pakistani Inter-Services Intelligence Directorate alleged to have been complicit in the 2008 Mumbai bombing, based on a Suggestion of Immunity provided by the Executive branch. (The DoJ Statement of Interest, which condemned the bombing and obviously took no view on the merits of the claims against the former ISI chiefs, attached a letter from then-Legal Adviser Harold Koh determining that the defendants enjoyed residual immunity for acts taken in an official capacity and that “acts of defendant foreign officials who are sued for exercising the powers of their office are treated as acts taken in an official capacity.”) The Second Circuit panel rejected the plaintiffs’ arguments that courts are not required to defer to Executive branch SoIs and that there is, or should be, a jus cogens exception to official acts immunity, holding that it was bound by the Circuit’s prior decision in Matar v. Dichter.
The panel specifically rejected the plaintiffs’ invitation that it should follow the Fourth Circuit’s 2012 decision in Samantar, which concluded that Executive branch SoIs for official acts are not controlling and there is no foreign official immunity for alleged jus cogens violations. This clarifies further that there is a circuit split on the jus cogens issue, which counsel for Samantar have argued in their cert petition, as well as on the issue of whether courts must defer to Executive branch SoIs for official acts. I have previously explained why I think the Fourth Circuit’s decision was wrong as a matter of both international and domestic law, why it should be troubling for the Executive branch, and how it creates reciprocal risks for US officials not to have their immunity recognized in foreign courts.
It is worth recalling that the Dichter case was an ATS suit filed by a group of Palestinians against the former head of Israel’s General Security Service in connection with the targeted killing of a Hamas leader in Gaza in 2002. The Second Circuit held that “in the common law context, we defer to the Executive’s determination of the scope of immunity” and that “[a] claim premised on a violation of jus cogens does not withstand foreign sovereign immunity.” If U.S. courts were instead to decide (as the Fourth Circuit has) that foreign government officials do not have immunity for their officials acts that might constitute jus cogens violations, then U.S. defense and intelligence officials (such as Chuck Hagel or John Brennan) could be stripped of their immunity for drone strikes and other official acts in other countries.
I will end by noting my friend Bill Dodge’s recent response at Just Security to my post earlier this week about Judge Boasberg’s ruling regarding the immunity of former Indian Prime Minister Singh. While noting that Singh may well be entitled to immunity for his official acts, Bill argues that U.S. courts have “consistently and correctly held that torture and other gross violations of human rights are not official acts to which conduct-based immunity attaches under federal common law.” Although the Second Circuit has not specifically addressed the issue of whether extrajudicial killings can be official acts, clearly the Second Circuit does not believe there is a jus cogens exception to official immunity. The issue will continue to be debated amongst international lawyers and in the courts and is likely ultimately to require resolution inside the United States by the Supreme Court.
[Addendum: I also want to use this opportunity to remind law students of this post I wrote one year ago suggesting that students consider how, if they were U.S. government lawyers (eg, for the White House, or for State, DoD, or DoJ), they would promote accountability for human rights violations by foreign government officials without encouraging frivolous lawsuits against U.S. officials. Would you encourage a new jus cogens exception to immunity, even though international law does not currently recognize such an exception? Would you advise the President and the Secretaries of State and Defense that they shouldn’t object if other countries do not recognize their immunities (or create new exceptions to them) because even if their immunities are lifted at the beginning of a case, at the end of the litigation the U.S. will be able to defend them successfully (even if they also have to retain private counsel)?]