Federal Appellate Court Allows Lawsuit by Guantanamo Detainees

On February 11th the U.S. Court of Appeals for the District of Columbia Circuit in Washington, D.C. ruled, 2 to 1, that the federal courts had jurisdiction over habeas corpus petitions by three detainees challenging their being subjected to force-feeding at  the U.S. Naval Station at Guantanamo Bay, Cuba.

Therefore, the court reversed the district court’s dismissal of the petitions and remanded the cases to that court for further proceedings. (Aamer v. Obama, No. 13-5223 (D.C. Cir. Feb. 11, 2014).)[1]

These claims arose after a major hunger strike at Guantánamo a year ago. Detainees who lost sufficient weight were forced to eat a nutritional supplement.

The Majority Opinion

1. Federal courts’ jurisdiction.

The key issue for the court was whether habeas jurisdiction was forbidden by section 7(1) of the Military Commissions Act of 2006 (“MCA”), which provided as follows:

  • “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
Judge David S. Tatel
Judge David S. Tatel

In reaching its conclusion that this provision did not foreclose jurisdiction, the court in an opinion by Circuit Judge David S. Tatel that was joined by Circuit Judge Thomas B. Griffith started with the U.S. Supreme Court’s decision in Boumediene v. Bush, 553 U.S. 723 (2008).

In Boumediene the Supreme Court held that this statutory section was unconstitutional under Article One, Section 9, Clause 2 of the U.S, Constitution (the Suspension Clause), which states, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” This was so, held the Supreme Court, because there was no other means for a Guantanamo detainee to attempt to show that he was being held pursuant to an erroneous application or interpretation of relevant law before a court with the power to order his conditional release.

The next step in the analysis was determining that the D.C. Circuit’s own subsequent decisions had decided that Boumediene had invalidated section 7(1) of the MCA for all habeas petitions by Guantanamo detainees. As a result, the determinative issue for the majority in Aamer was whether these petitioners’ claims were the sort that properly could be raised in habeas petitions.

The circuit court then concluded that these claims were properly within the scope of habeas corpus. This was so, the majority stated, because (a) the Supreme Court had suggested that habeas covers claims challenging conditions of confinement while leaving the issue open for that Court’s decision in a future case; (b) the D.C. Circuit’s own binding precedents had established that “one in custody may challenge the conditions of his confinement “ by a habeas petition; and (c) “the weight of the reasoned precedent” in other circuits had reached the same conclusion.

2. Preliminary injunction.

The detainees on appeal also challenged the district court’s denial of their requests for preliminary injunctive relief against their force-feeding, but the D.C. Circuit affirmed that denial because they had not shown likelihood of success on the merits.

This was so even though the appellate court said,”[W]e have no doubt that force-feeding is a painful and invasive process that raises serious ethical concerns.” But “it is not enough for us to say that force-feeding may cause physical pain, invade bodily integrity, or even implicate petitioners’ fundamental individual rights.”

The majority in Aamer recognized that this claim for injunctive relief had to be evaluated under Turner v. Safley, 482 U.S. 78 (1987), which held that “the legality of a prison regulation that ‘impinges on’ an inmate’s constitutional rights” must be upheld if it “’is reasonably related to legitimate penological interests.’”

Here, said the majority, the government had asserted two penological interests: “preserving the lives of those in its custody and maintaining security and discipline in the detention facility.”  These were legitimate interests as “the overwhelming majority of courts have concluded . . . that absent exceptional circumstances prison officials may force-feed a starving inmate actually facing the risk of death.”

The Dissent

Senior Judge Stephen F. Williams’ dissenting opinion concluded that the majority should have followed what he deemed to be Congress’s intentions in enacting the MCA and affirmed the dismissal of the cases. Congress, he said, “unmistakably sought to prevent the federal courts from entertaining claims based on detainees’ conditions of confinement.” “Such evident congressional intent would seem to counsel a cautious rather than a bravura reading” of whether such claims fell into the category of habeas corpus lawsuit.

Conclusion

We now wait to find out what the government will do. Ask the entire D.C. Circuit (en banc) to rehear the case?   Petition the U.S. Supreme Court to hear the case? Or return to the district court and litigate the claims there?

The majority in this case emphasized that they were only addressing the likelihood of the petitioners’ succeeding on their claims for preliminary injunctive relief, and not the actual merits. But the majority’s analysis and language, in my opinion, suggests that it is highly unlikely that the petitioners would succeed on the merits.

This case is not the only one involving Guantanamo detainees before the D.C. Circuit.

On February 21, 2014, Judge Tatel joined by Circuit Judges Janice Rogers Brown and A. Raymond Randolph heard oral arguments in an appeal from a dismissal of a complaint for money damages by six such detainees against former Defense Secretary Donald Rumsfeld and former U.S. military officials for alleged torture, religious abuse and other mistreatment at Guantanamo. (Allaithi v. Rumsfeld, No. 13-5096 (D.C. Cir.).) The main issues in this case are the following:

  • whether the claims are barred by the Westfall Act (28 U.S.C. sec. 2679), which makes lawsuits against the U.S. the exclusive remedy for injury “arising or resulting from the negligent or wrongful act or omission of any [government] employee while acting within the scope of his office or employment;” and
  • whether the defendants are immune from such a suit.

A decision on this case should issue later this year.


[1] The D.C. Circuit’s opinion was reported in the New York Times and Associated Press. Judge Tatel is a University of Chicago Law School classmate and friend of the blogger.

Dismissal of U.S. Lawsuit Against Ex-President of Mexico

On July 18th the U.S. District Court for the District of Connecticut dismissed a private lawsuit under the U.S. Alien Tort Statute and Torture Victims Protection Act against Ernesto Zedillo, a former President of Mexico.[1]

The written dismissal order merely states that it was for the reasons stated at the oral argument that day. Those reasons, according to the attorney for Mr. Zedillo, centered on the court’s deferring to the U.S. Department of State’s conclusion that Mr. Zedillo was entitled to immunity as a former head of state of Mexico sued for alleged acts taken in his official capacity. This was confirmed in the transcript of the court’s ruling.

The State Department’s position, which was provided to the court in September 2012, was based upon “principles of immunity articulated by the Executive Branch in the exercise of its constitutional authority over foreign affairs and informed by customary international law, and considering the overall impact of this matter on the foreign policy of the [U.S.].” These principles of officials’ immunity included the following:

  • Under the law and practice of nations, a foreign sovereign is generally immune from lawsuits in the territory of another sovereign.
  • Until the 1976 enactment of the Foreign Sovereign Immunities Act (FSIA), U.S. federal courts routinely “‘surrendered’ jurisdiction over suits against foreign sovereigns ‘on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect was presented to the court.'”
  • Under the U.S. Constitution, the executive branch of the federal government had the responsibility for foreign affairs.
  • A “sitting head of state’s immunity is based on his status as the incumbent office holder and extends to all his actions.” (Emphasis added.)
  • For a former official, on the other hand, immunity “is based upon the character of that official’s conduct and extends only to acts taken in an official capacity” with a presumption that “actions taken by a foreign official exercising the powers of his office were taken in his official capacity.”
  • Such a presumption “is particularly appropriate when a former head of state is sued, because holders of a country’s highest office may be expected to be on duty at all times and to have wide-ranging responsibilities.”
  • That presumption is corroborated when “the foreign government itself has asserted that the actions of its official were taken in an official capacity.”

The court’s dismissal also relied upon the U.S.’ advising the court on May 15, 2013, that it did not intend to appear at the July 18th hearing and that it “rests on its [previous] Suggestion of Immunity.” The court saw this advice “as a reaffirmation of the State Department’s Suggestion of Immunity, but even if it were a Statement of Neutrality, as the Plaintiffs’ contend, the fact is that the State Department has not withdrawn its Suggestion of Immunity.”

The U.S. court also noted that on May 23rd an unanimous Mexican appellate court reversed a lower court’s ruling that the Mexican government’s request for Zedillo’s immunity was illegal under Mexican law.[2]

The Mexican appellate court held that the Mexican plaintiffs in the U.S. case were not injured bythat Mexican government’s request because it was a “communiqué between Sates, and is a suggestion or proposal of immunity that the neighboring country [the U.S.] may or may not accept.” The appellate court also denied a motion to have the Mexican Supreme Court of Justice review the case, thereby finally ending the Mexican case.

According to the U.S. court, “even if . . . [the lower Mexican court’s decision had been affirmed], I find that it would ultimately be irrelevant to this Court’s determination of whether the Defendant is immune from this lawsuit because the Plaintiffs have cited no authority, and I’m not aware of any authority, for the proposition that the impropriety of such a request by the Mexican government would be sufficient justification for a court to disregard our own State Department’s Suggestion of Immunity.”

The U.S. case should also be over. Any appeal by the plaintiffs, in my judgment, would be fruitless.

The U.S. case was brought by ten anonymous Mexicans alleging that Mr. Zedillo had been complicit in a a 1997 massacre in the Mexican village of Acteal in the southern state of Chiapas.


[1] Various aspects of this U.S. case have been discussed in prior posts.

[2] The decision of the lower Mexican court was discussed in posts on March 10 and March 26, 2013.

 

 

Former Mexican President Tells U.S. Court To Ignore Mexican Court Decision

This blog has been following the civil lawsuit for money damages in U.S. federal court against Ernesto Zedillo, the former President of Mexico, for his alleged involvement in a 1977 massacre in a Mexican village and his claim for immunity from same.

That request for immunity has prompted another lawsuit, this in a Mexican court, over the legality of the request under Mexican law. In early March 2013 the Mexican court decided that the request for such immunity by the Mexican Ambassador to the U.S. State Department was illegal, and on March 28th that Mexican court decision was filed with the U.S. court.

The latest move in this duel between the two court systems took place on April 12th when Mr. Zedillo told the U.S. court that it should just ignore the Mexican court.

That was the bottom line in the Defendant’s Response to Plaintiffs’ Notice Regarding Mexican Trial Court Decision that was filed that day in the U.S. District Court for the District of Connecticut.

Although Mr. Zedillo in this document noted that his pending appeal of the Mexican court decision had been joined by the current Mexican President and Secretary of Foreign Affairs, that decision is asserted to be “irrelevant” to the U.S. case, and the U.S. court should “promptly and finally” dismiss the U.S. case. This conclusion purportedly follows from these premises:

  • The U.S. Department of State decides whether immunity for a foreign official advances U.S. interests and U.S. law.
  • The U.S. Department of State does not judge whether a foreign nation’s request for immunity for one of its former officials is in accordance with that country’s laws.
  • The U.S. Department of State already has decided that immunity in the U.S. case for Mr. Zedillo is in accordance with U.S. law and foreign policy and so advised the U.S. court.
  • Under U.S. law, U.S. courts are required to honor the U.S. Department of State’s decisions on immunity of former foreign officials.

Although I do not quarrel with these premises, I do not think that they support the conclusion put forward by Mr. Zedillo.

If the Mexican trial court decision is sustained on appeal in Mexico, then that should result in the Mexican government’s rescission of the earlier request for immunity by its Ambassador. That hypothetical situation, to me, looks like the case where the State Department recently refused to support immunity in a U.S. case for a former Somali official because there was no Somali government that could ask the Department for such immunity.

In any event, if I were the U.S. judge in the Zedillo case, I would postpone making any decision on immunity for Mr. Zedillo until after the Mexican case was concluded and the U.S. State Department had expressed its views on the impact of the Mexican case. Perhaps I would now ask the State Department for its views before the Mexican case had concluded, but I anticipate the Department would say it was waiting for a final judgment in the Mexican case before it expressed its views.

This blog will continue to watch for further developments in these cases.

 

 

 

 

 

Mexican Court Decision Regarding Zedillo Immunity Is Filed in U.S. Case

On March 28, 2013, the plaintiffs in the U.S. lawsuit against Ernesto Zedillo in federal court in Connecticut filed a copy of the Mexican court decision (with 108-page English translation) regarding the Mexican government’s request for immunity for the former president. The plaintiffs, however, did not ask the U.S. court for any relief as a result of the Mexican court decision. Presumably that will come later.

According to the U.S. plaintiffs’ attorneys’ summary, the Mexican court on March 6, 2013, (a) granted a writ of Amparo in favor of the plaintiffs; (b) declared that the immunity request lacked any constitutional or legal basis in Mexican law; and (c) instructed the current Mexican Ambassador to perform all official acts necessary to withdraw the immunity request, including notifying the U. S. Department of State of that withdrawal. (Pp.106-107.) The Mexican court provided the following reasons for its decision:

  1. The immunity request violated the principle of Constitutional Supremacy set forth in Article 133 of the Political Constitution of the United Mexican States because the Ambassador of Mexico to the U.S. disregarded the international legal standard adopted by Mexico forbidding requests for head-of-state immunity allowing public officials to evade their responsibilities. (Pp. 99 – 106.)
  2. The immunity request lacks any rationale how Mexico’s national sovereignty would be damaged by civil proceedings against a former president who no longer occupies the post of, or performs the functions of, head of state. Id. at 94– 99.
  3. The immunity request violates the plaintiffs’ human rights of equality and nondiscrimination under the Mexican Constitution, Article 1, because the Mexican Ambassador engaged in disparate treatment pursuant to criteria of a political nature, creating a discretionary exception of impunity in favor of Zedillo, thereby preventing plaintiffs’ ability to exercise their rights to equally seek damages for the injuries suffered. Id. at 83-94.
  4. The immunity request violates plaintiffs’ human rights set forth in the Mexican Constitution, Articles 14 and 16, as applied by the Federal Law of Administrative Procedure, because it is not properly executed with the required formalities. Id. at 78-83.
  5. The immunity request violates plaintiffs’ human rights set forth in the Mexican Constitution, Articles 14 and 16, because the Mexican Ambassador failed to set forth or justify any jurisprudential, statutory or regulatory basis for the degree or amount of subject matter or jurisdictional authority. Id. at 70-78.

As noted in a prior post, the case in Mexico is not yet final so we will have to wait to see what additional proceedings, if any, occur there.

Additional Thoughts About Mexican and U.S. Legal Issues in the Pending U.S. Lawsuit Against Ernesto Zedillo, Former President of Mexico

Ernesto Zedillo
Ernesto Zedillo

In September 2011 Ernesto Zedillo, a former president of Mexico, was sued in the federal court in Connecticut for money damages for his alleged complicity in a massacre in the Mexican village of Acteal in 1997. In September 2012, the U.S. government asked the court to grant immunity to Zedillo and dismiss the case based upon the Mexican government’s request to that effect and the subsequent similar request by the U.S. Department of State. These matters were covered in prior posts (here and here).

The U.S. court has not yet resolved the immunity or any other preliminary issues in the case, and the latest dockets sheets reveal no activities whatsoever since early February this year.

In March 2013 a Mexican court decided that the Mexican request to the U.S. State Department requesting such immunity was legally insufficient, as discussed in a prior post.

Subsequently a Mexican lawyer and friend, Juan Carlos Arjona Estévez, has provided me with additional comments about the Mexican court decision that prompt these additional thoughts about Mexican and U.S. legal issues in the case.[1]

The Mexican Court Decision

The Mexican court said the Mexican Ambassador’s letter to the U.S. Department of State requesting such immunity was legally deficient.[2] First, it was a letter from the Ambassador in his diplomatic capacity, not an official communication of Mexican government policy. Second, the letter did not cite to all the Mexican legal provisions relevant to the case. Third, the letter did not explain why immunity for Zedillo in the U.S. case was appropriate under those Mexican legal authorities and why such immunity would not affect Mexican ethnic groups’ right to access justice.

Moreover, there is no basis in the Mexican constitution for immunity for a former president or other government officials. Such immunity under Mexican law applies only when such individuals are in office.

This court decision could be appealed in Mexico by the Mexican Minister of Foreign Affairs, but reversal does not seem likely because the defense in the Mexican case is that the action of the Ambassador was not an “authorized act” that can affect the human rights of Mexicans, but only a diplomatic action.

If the decision is appealed, the three-magistrate appellate tribunal could affirm the decision and also refer to the provision in the Mexican Constitution stating that Mexican foreign policy has to promote human rights and that the request for Zedillo immunity for alleged human rights violations is contrary to such promotion.

Another possible outcome is for the Mexican Ambassador to rescind his request for immunity and to send a new letter to the U.S. Department of State saying that Senor Zedillo has not been sued in Mexico for the same claims and that Mexican courts should have the first opportunity to deal with these issues.

Related U.S. Legal Issues

These developments in Mexico raise at least two issues for U.S. law.

1. With or without a rescission of the original Ambassador’s letter, should the U.S. court grant immunity to Zedillo?

The original September 2012 letter from the U.S. State Department to the U.S. Department of Justice said “a sitting head of state’s immunity is based on his status as the incumbent office holder and extends to all of his actions.” (Emphasis added.)

On the other hand, the State Department letter went on, the “residual immunity of a former official . . . is based upon the character of that official’s conduct and extends only to acts taken in an official capacity. . . . [The] Department of State generally presumes that actions taken by a foreign official exercising the powers of his office were taken in his official capacity. This . . . is particularly appropriate when a former head of state is sued, because holders of a country’s highest office may be expected to be on duty at all times and to have wide-ranging responsibilities.” (Emphasis added.)

The State Department letter mentioned the Mexican Ambassador’s request for immunity based upon his assertion that “any actions [by Zedillo] . . . in connection with the events alleged in the complaint were taken in the course of his official duties as head of state.” This Mexican government assertion, the State Department letter says, corroborates its assessment to the same effect. In addition, the plaintiffs have not rebutted this assessment.

Therefore, the State Department’s letter concluded that Zedillo’s “alleged actions were taken in an official capacity, and he enjoys immunity from this lawsuit.”

This letter, taken by itself, might suggest that immunity might still be open even if the Mexican Ambassador’s letter were rescinded as it only corroborated that Zedillo was acting in his official capacity.

However, when the State Department in another case declined to request immunity for a former Somali official, it said any immunity protecting foreign officials for their official acts ultimately belongs to the sovereign, not the official. Thus, the foreign state must claim or waive any such immunity for the official. Where there is no recognized government, as was the case for Somali at the time, there was no one that could assert such a claim or make such a waiver. As a result, the State Department concluded that the former official did not enjoy immunity, and the court endorsed that conclusion and rejected the immunity claim.

Thus, if the Mexican Ambassador’s letter to the State Department is rescinded and not replaced by another request for immunity, the principles enunciated in the Somali case suggests that Zedillo would not be entitled to immunity.

2. Failure To Exhaust Mexican Remedies.

Another U.S. issue is whether the plaintiffs have failed to exhaust whatever remedies they have in Mexico.

Some of the claims in the U.S. case are asserted under the Torture Victims Protection Act (28 U.S.C. § 2350 note), which provides, in part, “A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred [here, Mexico].” There is no similar provision in the Alien Tort Statute, under which some of the claims are also asserted, but the U.S. Supreme Court in Sosa v. Alverez-Machain suggested that failure to exhaust remedies in the other country could be a limitation on ATS claims.

Thus, the issue for the U.S. court in such a hypothetical situation would be whether the claims under Mexican law are “adequate and available” and whether the plaintiffs had exhausted whatever Mexican remedies they had. [3]

Conclusion

I would anticipate that the plaintiffs’ lawyers in the U.S. case will advise the court in Connecticut of the Mexican court decision;[4] that the U.S. court will wait until there is a final resolution of the Mexican case before doing anything, and if the recent Mexican decision is not reversed, request the views of the State Department on the significance of the former; and thereafter the U.S. court will make a decision on whether or not to grant immunity to Zedillo.


[1] The Yale Daily News and ctlatinonews also have articles about the Mexican court decision.

[2] Because of the significance of the Mexican Ambassador’s letter, its text is attached at the conclusion of this post.

[3] There also should be a U.S. procedural problem if Zedillo now tries to raise the plaintiffs’ alleged failure to exhaust Mexican remedies as a defense in the U.S. case. The original U.S. complaint anticipated such a defense with the allegation that the plaintiffs do not have adequate remedies in Mexico and that they have exhausted their available Mexican remedies. Zedillo’s U.S. motion to dismiss the complaint only asserted immunity, and Rule 12(g) of the Federal Rules of Civil Procedure should prevent him from now raising this affirmative defense by motion.

[4] One of the plaintiffs’ attorneys has said they would so advise the U.S. court and ask it to request the State Department for reconsideration of the immunity issue.

=================================================

EMBASSY OF MEXICO

07654

Washington, DC, on November 4, 2011.

Madam Secretary:

On behalf of my Government, I have the honor to refer to the case v Doe et al. Zedillo Ponce de León, filed with the U.S. District Court for the District of Connecticut as No. 3:11-cv-01433, in place of the former President of Mexico, Ernesto Zedillo Ponce de León.

In this regard, I wish to express my Government’s rejection of any internal process that violates the sovereignty of Mexico, to exercise jurisdiction over alleged acts occurred in territory in which he allegedly spoke the President in his official capacity. In this regard it should be noted that any other act performed by former President Ernesto Zedillo regard to the facts in the lawsuit that gave rise to the case of history, took place in the course of his official duties as head of state and is Therefore, to rule in some sense, the Court would be deciding on actions the government of Mexico sovereign within their own territory.

In light of the above, I would sincerely request the intervention of the Department of State through the Department of Justice before the U.S. District Court for the District of Connecticut, by a suggestion of immunity to former senses of Mexico. In this regard, I note that the recognition of immunity enjoyed by foreign officials for acts performed in their official capacity is largely rooted in a principle of customary international law, whose application has been confirmed many times by the U.S. government, particularly in situations involving heads of state. There are also precedents in American jurisprudence that confirmed the practice.

In this regard, I quote Gemisen v cases. De la Madrid v Habyarimana. Kagame, Giraldo v. Drummond Co., Wei Ye v. Jiang Zemin and Lafontant v. Aristide, as a sign of the instances in which the State Department has intervened in the past the U.S. courts to reaffirm its position on immunity accompanying heads of state, even after completing your order. Enclosed is a legal memorandum that contains more elements on those precedents.

Similarly, I wish to present it as a process which aims to substantiate against former President of Mexico affect the bilateral relationship between Mexico and the United States, in dismissing the action of various national authorities in response to the event that occurred in the village of Acteal, Chiapas in December 1997, the Government made strongly condemned in turn, immediately abocándose research and presentation of those responsible to the law enforcement bodies.

In thanking Your Excellency in advance for your valuable support for the State Department’s intervention in the case of history, I do own the opportunity to renew the assurances of my highest consideration.

Ambassador Arturo Sarukhan

 

Mexican Court Invalidates Former Mexican President’s Claim of Immunity from Alien Tort Statute and Torture Victims Protection Act Case in U.S.

As a prior post reports, in September 2011, a group of Mexican nationals sued former Mexican President, Ernesto Zedillo, in federal court in Connecticut for his alleged complicity in a 1997 massacre in the Mexican village of Acteal. The complaint seeks $10 million in damages under the Alien Tort Statute and the Torture Victims Protection Act.

The U.S. Government on September 7, 2012, suggested that Former Mexican President Ernesto Zedillo should be immune from this lawsuit and that the case should be dismissed. This was based upon a request for such immunity from the Mexican government.

Eighteen days later (September 25th), the U.S. District Court for the District of Connecticut issued an Order To Show Cause requiring the plaintiffs by October 9th (later extended to October 16th) to show cause why the case should not be dismissed on the basis of former head-of state immunity. Simultaneously the court denied Zedillo’s dismissal motion as moot.

On October 16th the plaintiffs filed their Response to Order To Show Cause, Objection to the United States’ Suggestion of Immunity, and Motion To Stay Proceedings. It asserted, with supporting documents, the following:

• that on October 3rd they filed a petition for a writ of amparo in a Mexican federal court asking for a declaration that the Mexican Government’s request for immunity for Zedillo in this case violated Mexican law and the Mexican constitution and, therefore, is a nullity;

• that on October 9th the Mexican court “accepted” the petition, i.e., determined it was not dismissable; and

• that on October 9th the Mexican court also entered another order temporarily suspending the validity of the Mexican Government’s request for immunity for Zedillo in the U.S. case and enjoining any acts in furtherance of that request pending resolution of the Mexican case.

With this showing, the plaintiffs asked the U.S. court (a) to stay proceedings in this case pending the outcome of the Mexican case; or (b) to dismiss the U.S. case without prejudice while tolling the statute of limitations with leave to re-file the U.S. case if they succeed in the Mexican case; and (c) to request the U.S. Department of State to reconsider its position on immunity after the Mexican case is resolved; and (d) to provide guidance as to plaintiffs’ right to amend their complaint or to petition for leave to do so.

As of March 10, 2013, the U.S. case had been reassigned to another District Judge, and the dispute over the claimed immunity had not been resolved by the U.S. court.

On the afternoon of March 10th while walking in San Miguel de Allende, Mexico, I saw the page 1 headline in an issue of LaJournada, a Mexican newspaper: “Inconstitucional, pedir inmunidad para Zedillo en EU.”  Even my limited Spanish language abilities told me that a Mexican court had decided that the Mexican government’s request for immunity for Zedillo in this U.S. case violated the Mexican constitution.

According to a Google English translation of the article on the Internet, a Mexican judge had determined that Mexican authorities had violated the Mexican Constitution and international human rights treaties by asking the U.S. government to grant immunity to former President Zedillo.

One of the treaties was the Havana Convention, which states that “no immunities must be claimed that are not essential to the performance of official duties,” and it was violated, the court said, because Zedillo does not currently occupy any public position in the Mexican government. The American Convention on Human Rights was also violated, according to the Mexican court, because immunity for Zedillo causes “undue discrimination and threatening the human right of equality” for those who allegedly were harmed.

I imagine that there will be appeals or further proceedings in the Mexican case. In the meantime, I predict that the U.s. court will do nothing until the Mexican case is finally resolved.

Appellate Court Affirms Denial of Common Law Immunity to Former Somali Official

As discussed in a prior post, on February 15, 2011, the U.S. District Court for the Eastern District of Virginia decided that a former Somali General, Mohamed Ali Samantar, was not entitled to the former foreign government official immunity under federal common law.[1]

On November 2, 2012, the U.S. Court of Appeals for the Fourth Circuit affirmed this decision in an opinion that provided an interesting analysis of the role and power of the U.S. Department of State and of the federal courts in making decisions on immunity of foreign officials in civil lawsuits.

First, the appellate court said that there was common law immunity for a foreign head-of-state and that the courts must give “absolute deference” to the State Department’s position on such claims. This conclusion was based on the U.S. Constitution’s assignment in Article II, § 3, of the power to “receive Ambassadors and other public Ministers” to the Executive Branch. The State Department, however, has never recognized Samantar as the head of state for Somalia. Therefore, this type of immunity was not applicable in this case.

Second, the Fourth Circuit held that federal common law also provided immunity for foreign government officials who were not heads of state and that State Department’s determinations on such claims carried “substantial weight” for the courts, but were “not controlling.”

The latter type of immunity, said the Fourth Circuit, is based on the “foreign official’s actions, not his or her status, and therefore applies whether the individual is currently a government official or not.” But not all such actions are entitled to such immunity. Indeed, the court concluded that “under international and [U.S.] domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.”

The appellate court correctly observed, “A jus cogens norm, also known as a ‘preemptory norm of general international law,’ can be defined as ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Moreover, “Prohibitions against the acts involved in this case–torture, summary execution and prolonged arbitrary imprisonment–are among these universally agreed-upon [jus cogens] norms.”

In this case, the Fourth Circuit added, the State Department suggested to the court that Samantar was not entitled to the foreign official immunity because there was no Somali government to assert this immunity for him and because he was a permanent resident alien of the U.S. These are additional factors supporting the denial of this immunity to Samantar.

Therefore, Samantar was not entitled to the latter type of immunity.[2]


[1] Thereafter the district court held him liable for $21 million of compensatory and punitive damages in a civil lawsuit under the U.S. Alien Tort Statute and Torture Victims Protection Act.

[2] See also Roberts, 4th Circuit again denies immunity in Samantar, IntLawGrrls (Nov. 6, 2012).