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31Mar11


Statement of Interest and Suggestion of Immunity of and by the United States of America Regarding the Deposition of Former President Uribe


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CLAUDIA BALCERO GIRALDO et al.,
Plaintiffs,
v.
DRUMMOND COMPANY, INC et al.,
Defendants.

Civil Action No. 1:10mc00764 (JDB)

STATEMENT OF INTEREST AND SUGGESTION OF IMMUNITY
OF AND BY THE UNITED STATES OF AMERICA

Pursuant to 28 U.S.C. 517, |1| the United States respectfully submits this Statement of Interest and Suggestion of Immunity in response to this Court's Order dated January 10, 2011. Claudia Balcero Giraldo et al. v. Drummond Company, Inc. et al., 1:10mc00764 (D.D.C.) (JDB) (Dkt. # 7). Plaintiffs seek to enforce a third-party deposition subpoena served on the former President of Colombia, Alvaro Uribe, in connection with ongoing litigation between the above-named parties in the United States District Court for the Northern District of Alabama. See Claudia Balcero Giraldo et al., v. Drummond Company Inc., et al., 2:09cv1041 (N.D. Al.) (RDP).

As set forth more fully herein, the United States suggests that former President Uribe enjoys residual immunity from this Court's jurisdiction insofar as Plaintiffs seek information (i) relating to acts taken in his official capacity as a government official; or (ii) obtained in his official capacity as a government official. Insofar as Plaintiffs seek to depose former President Uribe regarding (i) acts performed or information that he obtained while not serving as a government official; or (ii) acts performed or information obtained during his time in office other than in his official capacity as a governmental official, the United States does not suggest that he is entitled to immunity. Nonetheless, in light of the concerns expressed by the Government of Colombia, and in the interest of comity, the United States respectfully requests that this Court order Plaintiffs to exhaust other reasonably available means of obtaining the information they would seek from former President Uribe before ordering him to give a third-party deposition regarding those matters as to which he would not be entitled to testimonial immunity.

In support of its interest and suggestion, the United States sets forth as follows:

1. The United States has an interest in this action because it raises the question whether a former foreign governmental official, who has served in several governmental capacities including, among other offices, as a senator, governor of Antioquia Department, and President of Colombia, is immune from the Court's jurisdiction to compel his testimony. Historically, in suits against a foreign state or its officials, courts would look to the State Department for a determination of whether the foreign state or its official was immune from the courts jurisdiction or, instead, subject to it. See Samantar v. Yousuf, 130 S. Ct. 2278, 2284 (2010). The practice of judicial deference to State Department foreign sovereign immunity determinations has its roots in the Supreme Court's Schooner Exchange decision in 1812. Id..; see the Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116 (1812).

2. Until the enactment of the Foreign Sovereign Immunities Act in 1976 (FSIA), 28 U.S.C. 1602 et seq., 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 certification to that effect is presented to the court by the Attorney General." Republic of Mexico v. Hoffman, 324 U.S. 30, 34 (1945); see Samantar, 130 S. Ct. at 2284; Ex parte Peru, 318 U.S. 578, 587-89 (1943). The Supreme Court made clear that "[i]t is . . . not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize." Hoffman, 324 U.S. at 35. This deferential judicial posture was not merely discretionary, but was rooted in the separation of powers. Under the Constitution, the Executive is "the guiding organ in the conduct of our foreign affairs." Ludecke v. Watkins, 335 U.S. 160, 173 (1948). Given the Executive's leading foreign-policy role, it was "an accepted rule of substantive law governing the exercise of the jurisdiction of the courts that they accept and follow the executive determination" on questions of foreign sovereign immunity. Hoffman, 324 U.S. at 36; see also Spacil v. Crowe, 489 F.2d 614, 618 (5th Cir. 1974) ("[W]e are analyzing here the proper allocation of functions of the branches of government in the constitutional scheme of the United States. We are not analyzing the proper scope of sovereign immunity under international law.").

3. When Congress enacted the FSIA, it transferred from the Executive Branch to the courts the responsibility to make immunity determinations in suits against foreign states. See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488-89 (1983). Congress, however, did not codify standards for determining the immunity of foreign officials. Accordingly, many courts continued to look to the Executive Branch for a determination of foreign official immunity, especially in suits against foreign heads of state. See, e.g., Wei Ye v. Jiang Zemin, 383 F.3d 620, 625 (7th Cir. 2004); United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997). Some courts nevertheless held that the FSIA and not the Executive Branch determined the principles governing foreign official immunity. See, e.g., Chuidian v. Philippine Nat. Bank, 912 F.2d 1095, 1102 (9th Cir. 1990). The Supreme Court resolved the circuit conflict last Term, holding that, "[a]lthough Congress clearly intended to supersede the common-law regime for claims against foreign states, we find nothing in the statute's origin or aims to indicate that Congress similarly wanted to codify the law of foreign official immunity." Samantar, 130 S. Ct. at 2291. In so concluding, the Court found "no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department's role in determinations regarding individual official immunity." Id.. Thus, the Executive Branch continues to play the primary role in determining the immunity of foreign officials as an aspect of the President's responsibility for the conduct of foreign relations and recognition of foreign governments. Accordingly, courts today must continue to defer to Executive determinations of foreign official immunity, just as they deferred to determinations of foreign state immunity before the enactment of the FSIA.

4. In making a foreign official immunity determination, the Department of State takes into account principles of international law as well as the United States' foreign policy interests. Under international law, sitting heads of state enjoy a broad immunity from the jurisdiction of foreign courts. Considering customary international law, the Executive Branch historically has suggested the immunity from suit of sitting heads of state. See, e.g., Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004); Wei Ye v. Jiang Zemin, 383 F.3d 620, 625 (7th Cir. 2004). Under international law, former heads of state have residual immunity from suit only for acts taken in an official capacity while in office. See, e.g., Arrest Warrant of 11 Apr. 2000 (Dem. Rep. Congo v. Belgium), 2002 I.C.J. 3, 61 (Feb. 14) (Merits). As with immunity for sitting heads of state, the Executive Branch historically has accepted this principle of residual immunity and has suggested the immunity from suit of former heads of state. See A, B, C, D, E, F v. Jiang Zemin, 282 F. Supp. 2d 875, 883 (N.D. Ill. 2003) (holding that head of state was immune from suit brought while he was sitting head of state even though he left office during the pendency of the litigation).

5. The Legal Adviser of the United States Department of State has informed the Department of Justice that the Colombian Government, through its Ambassador to the United States, Gabriel Silva, has formally requested that the Government of the United States suggest "any and all immunities applicable to President Uribe and to specifically request head-of-state immunity on his behalf." Letter from Gabriel Silva to the Honorable Hillary Clinton, dated November 12, 2010 (attached as Exhibit 1). Taking into account the relevant principles of customary international law and the United States' foreign policy interests, the Executive Branch has determined that permitting the action to proceed against former President Uribe would be incompatible with the principles adopted by the Executive Branch governing residual immunity insofar as Plaintiffs seek information (i) relating to acts taken in his official capacity as a government official; or (ii) obtained in his official capacity as a government official. Insofar as Plaintiffs seek to depose former President Uribe regarding (i) acts performed or information that he obtained while not serving as a government official; or (ii) acts performed or information obtained during his time in office other than in his official capacity as a governmental official, the United States does not suggest that he is entitled to immunity.

6. Insofar as Plaintiffs seek information from former President Uribe for which he does not enjoy immunity, the United States nonetheless retains a foreign relations interest in minimizing the burden on former President Uribe as a former head of state. On the present record, it does not appear that Plaintiffs can demonstrate that they have exhausted other reasonably available avenues to obtain the information about which they seek to depose former President Uribe. In this regard, Plaintiffs have advised the Department of State that they have not sought information from the Government of Colombia through letters rogatory or other avenues that may be available under Colombian law. See Letter from Harold Hongju Koh to the Honorable Tony West, dated March 31, 2011 (attached as Exhibit 2, with attachments). In view of comity concerns, the respect due former presidents of friendly states, and the concerns expressed by the Colombian Government, the United States respectfully requests that, before allowing the deposition to proceed as to information or topics not subject to the Executive Branch's suggestion of immunity, this Court order Plaintiffs to exhaust other reasonably available methods of procuring such information. |2|

7. The D.C. Circuit has recognized that principles of comity require courts to consider sensitivities that would be raised by an attempt to take the deposition of a senior foreign official, as such concerns would be raised when seeking the deposition of a senior U.S. official. In Re Minister Papandreou,139 F.3d 247, 254 (D.C. Cir. 1998). Cf. H.R. Rep. No. 94-1487 at 12, 23 (legislative history of the Foreign Sovereign Immunities Act, 28 U.S.C. 1330; 1602-1611). Courts, moreover, should be wary of permitting deposition testimony from a former foreign official in the absence of a strong showing of a demonstrated need for testimony concerning material facts in the unique personal knowledge of that individual. Cf. Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 546 (1987) (enjoining U.S. courts to "exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position" and to "demonstrate due respect . . . for any sovereign interest expressed by a foreign state."). Indeed, courts in this jurisdiction have appropriately required parties seeking to depose former high level officials to demonstrate that the former official's "testimony would be material as tested by a meticulous standard, as well as being necessary in the sense of being a more logical and more persuasive source of evidence than alternatives that might be suggested." United States v. Poindexter, 732 F. Supp. 142, 147 (D.D.C. 1990). In considering the impact of Plaintiffs' efforts to seek the deposition of former President Uribe, moreover, the Court should take into consideration the interests of the United States. Discovery in U.S. courts involving the head of state of a friendly foreign state, or the former head of state, is rare and implicates the foreign policy interests of the United States. Because such cases are also rare in other countries, U.S. practice may influence how foreign courts handle this issue as well. In particular, foreign courts confronted with a request to compel discovery from former U.S. Presidents could apply reciprocally the standards used by U.S. courts.

CONCLUSION

For the foregoing reasons, the United States suggests that former President Uribe enjoys residual immunity from this Court's jurisdiction insofar as Plaintiffs seek information (i) relating to acts taken in his official capacity as a government official; or (ii) obtained in his official capacity as a government official. Insofar as Plaintiffs seek to depose former President Uribe regarding (i) acts performed or information that he obtained while not serving as a government official; or (ii) acts performed or information obtained during his time in office other than in his official capacity as a governmental official, the United States does not suggest that he is entitled to immunity. Nonetheless, in the interest of comity, the United States respectfully requests that this Court order Plaintiffs to exhaust other reasonably available means of obtaining the information they would seek from former President Uribe before ordering him to give a third-party deposition regarding those matters as to which he would not be entitled to testimonial immunity.

Date: March 31, 2011

Respectfully submitted,

TONY WEST
Assistant Attorney General

VINCENT M. GARVEY
Deputy Branch Director

C. Lee Reeves
Counsel for the United States of America

C. LEE REEVES
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
Washington, DC 20001
Telephone: (202) 514-4805
Facsimile: (202) 616-8470
E-mail: lee.reeves@usdoj.gov


Notas:

1. 28 U.S.C. 517 provides that "any officer of the Department of Justice[] may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States." [Volver]

2. Assuming plaintiffs exhaust other reasonably available methods of procuring the information not covered by former President Uribe's residual immunity, the United States takes no position on whether the testimony of former President Uribe is, in fact, needed in these proceedings, and, if so, when, in what form, or on which issues. [Volver]


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