Latest in Foreign Sovereign Immunities Act
On Friday, the Office of the Director of National Intelligence (ODNI) released a declassified opinion by the Foreign Intelligence Surveillance Court (FISC) detailing limited circumstances under which the government may sequester information that was collected unlawfully.
The Senate Judiciary Committee held a hearing on “the Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability”—and the proceedings demonstrated that this corner of foreign relations law has become a political lightning rod.
Several individuals, small businesses and states have filed a total of at least 14 different suits against China (and affiliated entities and officials) based on its perceived culpability in causing the coronavirus pandemic.
As cyber threats during the coronavirus pandemic increase, Congress has considered allowing private lawsuits against foreign states for alleged unauthorized cyber activity. This response would create more problems than it solves.
Conventional wisdom and many lower court cases hold that foreign states are not entitled to constitutionally based personal jurisdiction protections in federal courts because they are not “persons” protected by the Fifth Amendment. That reasoning is incorrect as a matter of constitutional text and history, and it leads to poor results as a matter of policy for reasons explored at length in a forthcoming article and summarized here.
The U.S. District Court for the District of Columbia held recently that Syria is liable for the death of American war correspondent Marie Colvin and awarded Colvin’s family $302.5 million—$2.5 million in compensatory damages and $300 million in punitive damages. Colvin was killed in Syria when President Bashar Assad’s forces bombed the Baba Amr Media Center in Homs while she was in the facility.
On Wednesday, the unnamed foreign company seeking to quash a subpoena in connection with the special counsel investigation filed a reply brief with the Supreme Court supporting its petition for certiorari. The brief is below.
On Jan. 8, the U.S. Court of Appeals for the D.C. Circuit released its redacted opinion In re Grand Jury Subpoena, the mysterious case with apparent links to the Mueller investigation concerning an unnamed corporation (“the Corporation”) owned by an unnamed foreign country.
A mysterious judgment in a case with purported ties to the Mueller investigation highlights a topic of growing significance: the criminal prosecution of foreign-state-owned enterprises. The judgment by the U.S. Court of Appeals for the D.C.
Writing in Lawfare in April 2018, I considered the role of foreign sovereign immunity in the Democratic National Committee’s lawsuit against the Russian Federation and Russian individuals and entities. The case raised an interesting set of issues, I noted, but “these questions will only arise if Russia and the state-related defendants are properly served and if they decide to litigate rather than default.” The courts may get to think through some of these questions after all.