Foreign Sovereign Immunities Act

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 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.

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.

The Senate intelligence committee has said that a small number of states had their election computer defenses breached by Russian hackers in 2016. Assume, as the report writes, that those hackers were linked to the Russian government. Could the states whose systems were breached sue Russia under the Supreme Court’s original jurisdiction?