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Samantar v. Yousuf Before U.S. Supreme Court
May a court in the United States judge acts of torture committed abroad by a foreign government official? The Foreign Sovereign Immunities Act affords foreign governments and their officials immunity. Does the Torture Victim Protection Act strip it and grant the courts subject-matter jurisdiction?
The issue is now before the Supreme Court of the United States in Washington, DC. It heard arguments on March 3, 2010 in the matter Samantar v. Yousuf, docket number 08-1555. The ABA posted the briefs. The Washington Post published a report on the hearing and an editorial of March 6, 2010. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sat, / / Embassy Law Link
The United Nations Maintains Absolute Immunity
The United Nations' absolute immunity under United States law was reaffirmed in an opinion decided on March 2, 2010. The United States Court of Appeals for the Second Circuit affirmed the lower court's ruling to dismiss the case Brzak et al. v. United Nations et al., docket no. 08-2799.
The original complaint cited an incident in 2003 wherein Cynthia Brzak claimed she was improperly touched by the United Nations High Commissioner for Refugees during the course of a staff meeting in Geneva. Brzak, acting upon the advice of her co-plaintiff Nasr Ishak, filed a complaint with the United Nations' Office of Internal Oversight Services, OIOS. The offending High Commissioner was eventually exonerated by the Secretary-General of the United Nations. Thereafter, both Brzak and Ishak claim that their superiors retaliated against them.
Brzak and Ishak sued the UN and the individuals involved in the incident in the United States District Court for the Southern District of New York. The case was dismissed on the grounds that the UN has absolute immunity under United States law.
The court of appeals agreed with the district court that the United Nations had absolute immunity. The plaintiffs-appellants had argued that the Convention on Privileges and Immunities of the United Nations, CPIUN, the treaty that gives the UN absolute immunity, was not self-executing; therefore, since there had not been legislation pertaining to the treaty after its ratification, the US did not need to recognize UN immunity in domestic litigation. Furthermore, they argued that even if the CPIUN had been self-executing because the Foreign Sovereign Immunities Act, FSIA, was passed after its ratification. FSIA, they argued, strips foreign sovereigns of their immunity in certain circumstances.
First, the court of appeals stated that whatever immunities are possessed by other international organizations, the CPIUN unequivocally grants the United Nations absolute immunity without exception. Second, they noted that the appellants had made no claims that the UN had violated any exceptions to the immunity under FSIA.
The court of appeals finished by stating: legislatively and judicially crafted immunities of one sort or another have existed since well before the framing of the Constitution, have been extended and modified over time, and are firmly embedded in American law. -- Laura P. Valle, Legal Assistant Berliner, Corcoran & Rowe, LLP, Washington, D.C.
Thu, / / Embassy Law Link
Britain-Texas Consular Notification
The Death Penalty blog recites case facts from The Times in a death penalty notification matter that has been filed with a British government brief with the United States Supreme Court in Washington, DC.
Again, Texas is said to have disregarded its consular notification obligations. The February 27, 2010 article, Death-row inmate Linda Carty launches last-chance appeal to US Supreme Court, leaves unclear whether the facts have been researched by the author or have been taken from the Times.
The Texas death row inmate is stated to be Linda Carty. The notification principle had been confirmed by treaty, the Vienna Convention on Consular Relations of 1963, almost 50 years ago and by the International Court of Justice. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sun, / / Embassy Law Link
Crimes Against Diplomats, Collecting from Protected Witness
On the periphery of the never-ending saga of the Ambassador Letelier assassination in 1976, the United States Court of Appeals for the District of Columbia Circuit affirmed the district court's order denying the appointment of a guardian for the defendant in the case Gonzalez-Vera, et. al. v. Townley, et. al., docket no. 09-5134.
The appellee in this case, Michael Vernon Townley pled guilty to conspiracy to murder a foreign official in connection with the 1976 assassination of former Chilean ambassador and foreign minister Orlando Letelier. After spending five years in prison, he entered into the Witness Security Program, WSP. In the years following his incarceration and during his subsequent time in the WSP, Townley was linked to the July 1976 brutal murder of Carmelo Soria Espinoza, a United Nations diplomat.
Soria's widow, Laura Gonzalez-Vera sued Townley for damages. Townley defaulted on the suit and the district court entered a $7 million judgment against him. Gonzalez-Vera asked the Attorney General to help collect the judgment. The WSP director to whom the Attorney General had delegated the task concluded that it was "not unreasonable for [Townley] to pay $75 per week" toward the judgment. Gonzalez-Vera rejected this offer and sued Townley in the District Court for the District of Columbia. The district court then dismissed the case, stating that Gonzalez-Vera lack[ed] statutory authorization to bring this suit. The district court recited 18 U.S.C. §§ 3523(a), 3523(b)(1), and 3523(b)(3) as follows:
Gonzalez-Vera argued in the district court that sections 3523(a) and 3523(b) are two independent mechanisms to assist with enforcement of an outstanding judgment. The court disagreed and Gonzalez-Vera appealed to the United States Court of Appeals for the District of Columbia Circuit on the basis that the district court had misinterpreted the statutes.
3523(a): If judgment is entered against an individual in WSP and that individual has not made reasonable efforts to comply with the judgment, their location may be disclosed to the plaintiff.
3523(b)(1): Upon a decision by the Attorney General to deny disclosure of the defendant's identity and location, a petitioner can bring an action into district court to collect on the judgment.
3523(b)(3): If the petitioner a) holds a judgment entered by a Federal or State court and b) if the Attorney General has declined to disclose the current identity and location to the petitioner, a guardian may be appointed.
On February 23, 2010, the Circuit Court agreed with the district court, stating that the language in the statute's segments meant for one to follow the other. They added that if the court agreed with Gonzalez-Vera's interpretation, every case in which the protected person's identity are not disclosed would allow for a guardian, including cases where the protected person has made reasonable efforts to satisfy the judgment. They stated that, given the statute's language and structure, and the risks of disclosing a protected person's identity and location even to a court-appointed guardian, we think it clear that Congress intended to make guardianship available only where the Attorney General find that the protected person is failing to make reasonable efforts to satisfy the judgment. -- Laura Valle, Legal Assistant, Berliner, Corcoran, & Rowe, LLP, Washington, DC.
Wed, / / Embassy Law Link
Ambassador not to be Deposed
An ambassador party to a lawsuit initiated by his nation and his embassy may not be deposed without a waiver of sovereign immunity, the United States District Court for the District of Columbia decided in Great Socialist People's Libyan Ara Jamahiriy et al. v. Ahmad Miski, docket number 06-2046, on January 25, 2010.
The defendant had responded to the complaint with a counterclaim and sought the ambassador's deposition. The court also ruled that Libya cannot rely on its sovereign immunity to defeat the counterclaim.
The memorandum and opinion is instructive and detailed. The case involves trademark and domain name law under the Lanham Act, 15 USC §1125(a)(1)(A) and (B) (2006), and the AntiCybersquatting Consumer Protection Act, 15 USC §1125(d) (2006), as well as counterclaimed compensation under tort law. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / / Embassy Law Link
California Statute Steps into Federal Territory
On January 14, 2010 the United States Court of Appeals for the Ninth Circuit refused to rehear an appeal en banc involving a women's claims to two paintings alleged looted during the Holocaust in Marei Von Saher v. Norton Simon Museum of Art, docket no. 07-56691.
The primary issue of the case revolves the validity of §354.3 of the California Code of Civil Procedure in regard to possible infringement of the federal government's exclusive power designated under the Foreign Affairs doctrine to redress war injuries. §354.3 extends the statue of limitations until 2010 for actions for the recovery of Holocaust-era art, id. 1018. The Court also examines an alleged contradiction of a well-established policy of external restitution enacted under the Truman administration post WWII.
As far as the code infringing on the national government's exclusive power in foreign affairs the court held that it does. The intention, according to the analysis of the Court, was to help Holocaust victims rather than regulate the State's museums and galleries. Although the Court deems this as a noble goal, the humanity underlying the State statute could not give the State the benefit of any doubt in resolving the conflict with national policies, id. 1032. California is in essence creating a distinct juristic personality one that overlaps into the realm of the foreign affairs doctrine, a power designated for the national rather than state government.
The United States government post WWII began external restitution efforts to return looted art under the Plunder and Restitution at SR-143 to its original country of origin--not to individual owners. The State Department recommended this plan of action to allow newly liberated governments to handle the specifics of claims of individuals. Over three million pieces were returned under this policy that ended in 1948, including the paintings in question. Had §354.3 been enacted during the 1940's it would have directly contradicted this external restitution policy since it offers a competing method of resolving restitution claims id 1029. However since the policy is no longer in effect, §354.3 cannot conflict with it.
The Court of Appeals affirms the position of the District court claiming that §354.3 intrudes on the power to make and resolve war, id. 1034. Petitions for rehearing have been denied, and the case has been remanded to the District Court for further proceedings. -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / / Embassy Law Link
Attach Diplomatic Buildings Based on Use?
In DOJ: Iranian Property Protected from Civil Judgment Enforcement, Mike Scarcella summarizes points made in a hearing in the United States Court of Appeals for the District of Columbia Circuit regarding the attachment of diplomatic properties to satisfy a judgment against a foreign nation.
His January 15, 2010 report addresses the use of properties owned by Iran but administered under the Vienna Convention on Diplomatic Relations of April 18, 1961 by the United States Department of State; see also Beam, What happens to an embassy's staff when the building closes?.
Some such real estate is tenant-used and, therefore, should not be considered diplomat-used, the plaintiff argues. That view is shared by neither the United States nor Iran, Scarcella reports. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / / Embassy Law Link
China Not Liable for Damages from Terrorism
On January 14, 2010, the United States District Court for the District of Columbia dismissed the complaint in the matter of Zhenxing v. The Government of the People's Republic of China, docket no. 08-2228 because the plaintiff failed to meet the minimum requirements of Rule 8 of the Federal Rules of Civil Procedure, FRCP.
In addition to the premature filing of the original complaint, the court stated that the pro se plaintiff had filed a complaint so unclear that it utterly fail[ed] to give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests, quoting Conley v. Gibson, 355 U.S. 41, 47-48 (1957). While the court noted that the standards to which pro se litigants are held are often more lenient than those for attorneys, it ruled that in this case, even those standards had not been met.
Aside from the ambiguity of the complaint itself, the court stated that the plaintiff's attempt to sue China under the U.S. Code which designates civil remedies for American victims of international terrorism, 18 U.S.C. §2333(a), did not apply to foreign states as was clearly stated in 18 U.S.C. § 2337(2), see also Lawton v. Republic of Iraq, 581 F. Supp. 2d 43, 46 (D.D.C. 2008).
Under federal law in the United States, the jurisdictional basis for a victim of international terrorism against a foreign state is the State Sponsored Terrorism Exception to the FSIA. Had the plaintiff in this case met the minimum requirement of Rule 8 of the FRCP, the case may still have been dismissed since the People's Republic of China is not currently designated as a state sponsor of terrorism. -- Laura P. Valle, Legal Assistant, Berliner, Corcoran & Rowe, LLP.
Thu, / / Embassy Law Link
Slate: What Happens when an Embassy Closes?
In Closed for Jihad--What happens to an embassy's staff when the building closes? Christopher Beam explains the consequences for staffers, visa services and the two nations affected. He provides valuable historical balance. As a bonus, he puts it, he adds information on the ownership of the land where embassies are built. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC, whom the Slate author consulted.
Mon, / / Embassy Law Link
IRS Announcement re Local Hires
A continuing and global problem relates to the taxation of local hires at embassies, consulates and similar missions. The number of nationalities and tax regimes governing them seems unlimited. Confusion abounds, and good faith actions may insufficiently protect against penalties.
The Inernal Revenue Bulletin 2010-2 of January 11, 2001 seeks to clarify the situation at German missions in the United States and correspondingly at U.S. missions in Germany by way of a competent authority agreement.
By taking into consideration the potentially conflicting provisions of the Convention Between the United States of America and the Federal Republic of Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital and to Certain Other Taxes, signed at Bonn on August 29, 1989, as amended by the Protocol, signed at Berlin on June 1, 2006, as well as Article XIX of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany, signed at Washington on December 8, 1923 and the Vienna Convention on Consular Relations, the agreement provides for the application of certain exemptions in one nation which correspond to tax liability in the other. Thus, taxation is assured while double taxation is avoided. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / / Embassy Law Link
