OBJECTION TO: SUGGESTION OF IMMUNITY, AS CONTRAVENING SUPREME COURT HOLDINGS IN SAMANTAR V. YOUSUF AND CLINTON V. JONES

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

NO. CIV-I0-437-W

1) MADAME HABYARIMANA;

in her own capacity and on behalf of the estate of

the deceased President of Rwanda, JUVENAL HABYARIMANA;

2) MADAME NTARYAMIRA; 

in her on capacity and on behalf of the estate of the deceased President of Burundi, CYPRIEN NTARYAMIRA

Plaintiffs,

vs.

1) PAUL KAGAME, President of the Republic of Rwanda,

Defendant.

Respectfully submitted:

OBJECTION TO: SUGGESTION OF IMMUNITY, AS CONTRAVENING SUPREME COURT HOLDINGS IN SAMANTAR V. YOUSUF AND CLINTON V. JONES

Procedural Background 

There is no dispute that, on May 1, 2010, Defendant Kagame was in the auditorium building of an Oklahoma university to deliver a speech in a private capacity, not on behalf of the Republic of Rwanda.

On June 23, 2011, this Court ruled Plaintiffs failed to serve Defendant under FRCP Rule 4(e)(1) which references Oklahoma Statutes but, the Court made no findings under FRCP Rule 4(e)(2)(A), which does not. 1

On August 29, 2011, the U.S. State Department filed Suggestion ofImmunity on behalf of Defendant Kagame for unofficial acts committed before Defendant Kagame became head of state,2 which is beyond the immunity from suit available to U.S. heads- of-state. See, Clinton v. Jones, 520 U.S. 681 (1997).  The Court Ordered this response.

Introduction

In Samantar v. Yousuf, 130 S.Ct. 2278 (2010), the Supreme Court held that FSIA statutory foreign-state "sovereign immunity" did not extend to individual officials, including a head of state like Mr. Kagame:

The question we face in this case is whether an individual sued for conduct undertaken in his official capacity is a "foreign state" within the meaning of the Act. (Emphasis added) Samantar, 130 S.Ct. at 2286.

The Court agreed with the United States that individual officials were never foreign states, as defined by Congress under FISA:  The text [...] supports the view of respondents and the United States that the Act does not address an official's claim to immunity. Id. at 2289.

Regarding the immunity of an individual:

Whether petitioner may be entitled to immunity under the common law, and whether he may have other valid defenses to the grave charges against him, are matters to be addressed in the first instance by the District Court on remand. Id. at 2293.

Applying the June 1, 2010 holding in Samantar, State Department Legal Adviser Mr. Koh may not assert statutory FSIA immunity on behalf of Mr. Kagame, but may assert only common-law immunity available for acts within the individual's official capacity:  Under the "restrictive" theory of sovereign immunity, "immunity is confined to suits involving the foreign sovereign's official acts." Samantar, 130 S.Ct. at 2285.

The Supreme Court has held individual-official, head of state immunity does not shield the U.S. head of state from civil liability for tortious acts, committed before becoming head of state in Clinton v. Jones 520 U.S. 681, 117 S.Ct. 1636 (1997). Thus, Legal Adviser Mr. Koh's Suggestion ofImmunity forces the question: (a) whether "federal common-law individual-official immunity" in U.S. courts is actually broader for foreign heads of state than for U.S. heads of state under Clinton v. Jones after Samantar; and, (b) if such immunity is not broader for foreign heads of state, whether Supreme Court legal precedent matters because a State Department "suggestion of individual immunity from federal judicial process" is beyond judicial review of any sort?4

OBJECTIONS

I. After Clinton and Samantar, an Executive Branch Suggestion ofImmunity Is Subject to Common Law Individual Caveat(s), Requiring Judicial Review

The Executive Branch may make a "suggestion of immunity" to the courts with respect to a foreign head of state and need not exercise its discretion to do so in every instance (Suggestion, fn. 3). There is no dispute that the Courts must give great deference to the Executive in matters of foreign affairs and foreign policy, as the proponents of the Suggestion ofImmunity demonstrate.5 Foreign policy certainly is the province of the Executive Branch, to which the Judicial Branch owes proper deference in designating Defendant Kagame as individual currently entitled to "head of state immunity."

However, the application and scope of "head of state immunity" within the federal courts is a matter for the courts as was forcefully demonstrated by a unanimous Supreme Court in Clinton v. Jones and reinforced in Samantar v. Yousuf Eliminating all judicial review for suggestions of head of state-immunity would contradict the entire thrust of FSIA.6

"Suggestion olin Rem Immunity without Review" Cases are Inapposite to the "Caveat(s)" Applicable ONLY to Individual Immunity Questions

In Samantar, the Court noted that most of the common-law cases, cited by proponents of the "Suggestion ofImmunity without judicial review, " were pre-FSIA in rem property cases. 7

Between 1952 and 1976, of 110 State Department immunity decisions, only four related to individual-official immunity and two of the four related to head of state immunity.8 Further, the Court noted that post-FSIA "immunity of an individual is subject to a caveat not applicable to other entities or persons to which a state's immunity extends." Samantar at 2290, citing Permanent Mission ofIndia to the United Nations, v. City o fNew York, 551 U.S. at 200, 127 S.Ct. at 2357 (2007).

The in rem cases are inapposite, insofar as the applicability and scope of individual immunity is concerned.9

After Samantar, individual official head of state- immunity limits can only be decided by the District Court after a suggestion of immunity has made the scope of individual head of state-immunity a live issue, on the facts before the Court.IO After Samantar, the common law two-step process may still look to a "suggestion of immunity" from the State Department. II But, after Clinton v. Jones and Samantar, when a U.S. head of state could not claim immunity for the same cause of action in U.S. courts, it would seem to be a question of law or a mixed question of law and fact, whether the Executive Branch may make an unreviewable suggestion for a foreign head of state. Moreover, Clinton v. Jones is the only post-FSIA Supreme Court case describing the scope of head of state-immunity from which the lower courts might draw. 12

Congressional Reaction to "Political Considerations" Deciding Immunity Issues in the Legal Process: FSIA Legislation and the Courts

According to the Court in Samantar, Congress enacted FSIA because of contradictory Suggestions of Immunity by the State Department, based on political considerations, rather than the legal merits of the claim of immunity:

....political considerations sometimes led the Department [of State] to file 'suggestions of immunity in cases where immunity would not have been available under the restrictive theory.' (citation omitted) Samantar, 130 S.Ct. 2278 at 2285.

Given the public record of mass intentional torts committed by Defendant Kagame before becoming head of state as alleged in the Complaint and supported by indictments from France and Spain, this Suggestion of Immunity would seem to fit the pattern that concerned Congress and the Court, described above. 13

The beginning of the trial of Defendant Kagame's would-be political opponent in the August 2010 Rwandan Presidential elections, Madame Victoire Ingabire, on "terrorism" and "genocide ideology" charges the same week the State Department has requested unlimited immunity for Mr. Kagamel4 raises too many ironies to catalogue, except to note the wisdom of Congress removing the "immunity" decisions in the federal courts from the "politics" of the State Department in the vast majority of cases, by enacting FSIA. These political contradictions become obvious in this case when considering, when Defendant Kagame was elected with 93% of the vote in August 2010, the White House National Security Council announced:

"We remain concerned about a series of disturbing events prior to the election including the suspension of two newspapers, the expulsion of a human rights activists, the barring of two opposition parties from taking part in the election, and the arrest of journalists...[S]tability and prosperity will be difficult to sustain without broad political debate and open political participation .. .Democracy is about more than holding elections ... " (Emphasis added)15

Apparently, State Department qualifications for individual-official, head of state immunity do not include: (a) taking power in elections that are free and fair, according to the White House; (b) refraining from invading one's neighbors and stealing more than $250 million a year in natural resources and causing the deaths of 6-million people, according to the UN; (c) and refraining from prosecuting political opponents and their U.S. lawyers when it suits an individual official. All of which is subject to change.....at any time.16

II. Clinton v. Jones Prohibits the Lower Federal Courts from Accepting a "Suggestion of Head-of-State Immunity" for Intentional Torts Committed Before Individual Was Head-of-State

After Samantar, an individual may not look to FSIA for statutory immunity, but must rely solely on common law individual-official immunity principles. Samantar, 130 S.Ct. at 2292-2293. As a matter of law, when civil liability is based on allegations of intentional torts committed before an individual official became head of state, the Supreme Court rejected the availability of immunity. In Clinton v. Jones, Justice Stevens wrote:

[But] we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity....As our opinions have made clear, immunities are grounded in "the nature of the function performed, not the identity of the actor who performed it." (Citations omitted, Emphasis added) Clinton v. Jones, 520 U.S. 681, 694-695, 117 S.Ct. 1636, 1644 (1997)

In Clinton v. Jones, the Supreme Court held that head of state-immunity does not shield a sitting U.S. President from answering in U.S. federal courts for intentional torts, allegedly committed before becoming head of state. Applying this holding, the Legal Adviser would seem to be foreclosed from invoking such immunity to shield a sitting Rwandan President in the U.S. federal courts.

The question before this Court is straightforward, either the Clinton v. Jones applies equally to all heads of state in U.S. courts, or foreign head of state-immunity is broader than U.S. Presidents can claim, and applies to private acts committed even before the foreign head of state assumed office, despite long-standing "restrictive immunity"principles that would apply only to official acts. I7 There is no indication in Samantar, or any of the cases cited by proponents of the Suggestion ofImmunity, that common law "individual-official immunity" extends to an official NOT acting on behalf of a state, as asserted here.

III. An Unreviewable "Suggestion of Foreign Head-of-State-Immunity," Exceeding Head-of-State Immunity Recognized in U.S. CourtsBy the Supreme Court in Clinton v. Jones, Violates the Separation of Powers 

The letter from the State Department informs the Justice Department and the Court that Mr. Kagame is a sitting President, and that Defendant Kagame has head of state- immunity in U.S. Courts. With this portion of the notice, counsel for Plaintiffs can have no dispute since the State Department foreign policy decision regarding who is head of state, and which head of state the Executive Branch would prefer to benefit from such immunity is certainly a foreign policy decision.

However, if the foreign head of state-immunity standard is to differ from the domestic head of state-immunity standard, as the Suggestion ofImmunity would require, this Court is to: (a) grant a level of immunity from suit that cannot be claimed Barack Obama, himself, establishing multi-level head of state immunity standards for the federal courts, depending only upon State Dept. discretion; (b) accept Executive Branch immunity-from-suit determinations in the federal courts, that are contrary to the plain meaning of Clinton v. Jones, without judicial review. 18

WHEREFORE, counsel for Plaintiff prays this Honorable Court: ACCEPT the Suggestion ofImmunity by State Department Legal Advisor Koh, insofar as it asserts non-FSIA, head of state-immunity in the federal courts under Samantar v. Yousuf, ACCEPT the Suggestion ofImmunity, insofar as it conforms with the Supreme Court of the United States in Clinton v. Jones; and that this Honorable Court REJECT the Suggestion ofImmunity, insofar as it supplants the role of the judiciary and would impose the improper remedy of dismissal on head of state immunity grounds, in contravention of the holding of the Supreme Court of the United States in Clinton v. Jones and Samantar v. Yousuf

FOOTNOTES

1 The Court found that a person over 18 years of age, and an employee of the federal government, personally delivered the Summons and Complaint into the hands of members of Mr. Kagame's staff when they were personally in the vicinity of Defendant in a waiting room, outside the auditorium, which supports service of process under Rule 4(c) and 4(e)(2)(A), as a matter of law. Doe v. Qi, 349 F.Supp.2d 1258 (N.D.Cal. 2004) and Jane Doe Iv. Karadzic, 1996 WL 194298 (S.D.N.Y. 1996). In addition, (a) Rwanda first requested immunity for Defendant Kagame by letter in May 2010 (see Motion for Reconsideration Under Rule 4(e)(2)(A)) and, (b) the Complaint filed in this case was used to criminally prosecute counsel for Plaintiffs in Rwanda (see Josh Kron and Jeffrey Gettleman, American Lawyer for Opposition Figure is Arrested in Rwanda, N.Y. TIMEs, May 29, 2010 at A9 and June 23, 2011 Order), both of which are evidence that Defendant Kagame had notice required under Rule 4(e)(2)(A). A Motion for Reconsideration is pending.

2 Intentional torts, alleged to have been committed by Defendant Kagame before he became "head of state" are described in detail in the Complaint. Documents referenced in the Complaint can be found at: www.rwandadocumentsproject.net: (A) French Judge Bruguiere's 2006 criminal indictment against the Defendant for the 1994 assassination of two Presidents, war-crimes, genocide, crimes against humanity; etc.; (B) 2006 Affidavit ofICTR Prosecutor Michael Hourigan regarding the 1994 Presidential Assassinations by Defendant Kagame; (C) Spanish Judge Abreu 2008180 page criminal indictment of the Defendant Kagame for the 1994 Presidential assassinations, murder of Spanish citizens, murder of 320,000 Rwandans, genocide, etc.; (D) 2009 Commonwealth Human Rights Initiative Report on Rwanda describing intentional torts committed by Defendant Kagame before becoming head of state; (E) October 1, 2010, 600 page UN High Commission for Human Rights "Mapping Report" regarding the 1993-2003 RPF- Rwandan government genocide, war-crimes, and crimes-against-humanity resulting in 6 million deaths; (F) UN Security Council Reports on Resource Theft in the Congo, 2001, 2002, 2003, and 2008, all of which document wrongful acts before Defendant became head of state, as did the Complaint in Clinton v. Jones, 520 U.S. 681 (1997).

4 Suggestion of Immunity Paragraphs 3-7. Whether "head of state immunity" is beyond judicial review seems to have been put to rest by Clinton v. Jones, 520 U.S. 681, 117 S.Ct. 1636 (1997), which reviewed and established the scope head of state-immunity, and Samantar v. Yousuf, 130 S.Ct. 2278 (2010), which requires the District Court to engage in an examination of the applicability and scope of common law individual immunity, ab initio.

5 Suggestion ofImmunity ,Paragraphs 3-7, 

6 Clinton v. Jones would seem to answer whether judicial review of the basis for head of state immunity on a particular set of facts is apropos. 

7 Samantar, 130 S.Ct. 2278 at 2285, citing Heaney v. Government of Spain, 445 F.2d 501 (C.A.2 1971) as one of the few exceptions. 

8 Samantar, n.l8, 130 S.Ct. at 2291, citing Sovereign Immunity Decisions of the Department of State, May 1952 to Jan. 1977 (M. Sandler, D. Vagts, & B. Ristau eds.) in Digest o f us. Practice in Int'l Law, 1020, 1080 (1977).

9 Suggestion ofImmunity Paragraphs 3-7. 

10 Whether individual-official immunity, asserted on behalf of Defendant by the State

Department in a Suggestion ofImmunity, applies to the facts in this case also requires judicial review as to the scope of the individual-official immunity asserted. Samantar v. Yousuf, 130 S.Ct. at 2289-2290. On remand, the U.S. State Department advised that Defendant Samantar was not immune from suit. Statement of Interest of the United States of America, Yousufv. Samantar, No. 1:04-CV-1360, (February 14,2011). 

II There is no dispute that issue of immunity may also be raised by Defendant, without State Department suggestion, as occurred in Samantar.

12 Permanent Mission ofIndia to the United Nations, v. City ofNew York, 551 U.S. 193, 200, 127 S.Ct. 2352, 2356-2357 (2007):

Our reading of the text is supported by two well-recognized and related purposes of the FSIA: adoption of the restrictive view of sovereign immunity and codification of international law at the time of the FSIA's enactment.... "the immunity of the sovereign is recognized with regard to sovereign or public acts Oure imperii) of a state, but not with respect to private acts Oure gestionis)." In enacting the FSIA, Congress intended to codify the restrictive theory's limitation of immunity to sovereign acts. (Citations omitted)

13 See indictments and other documents, note 2, infra.

14 Josh Kron, Rwanda Lays Out Charges Against Ex-Presidential Hopeful, N.Y.TIMES, September 10,2011 at A-3. 

15 Statement on the National Elections in Rwanda, The White House, August 13,2010 http://www.whitehouse.gov/the-press-office/2010/08/13/statement-national... rwanda.

16 Suggestion of Immunity Paragraphs 3-7.

17 [W]e have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity. (Emphasis added) Clinton v. Jones, 520 U.S. at 694, 102 S.Ct. at 1644.