Foreign Dictators in U.S. Court, Part I

Foreign dictators have weaponized U.S. litigation to punish critics and newspapers, expanding the reach of transnational repression. It’s time to put a stop to it.

Foreign dictators are increasingly taking advantage of U.S. courts to pursue political ends. In just the past decade, authoritarian regimes from China, Russia, Turkey, and Venezuela have litigated claims in U.S. courts, often against newspapers or political dissidents that have emigrated here. While we may expect these authoritarian countries to face human rights or expropriation cases as defendants, these countries have surprisingly also filed claims as plaintiffs.

Take, for instance, Turkey's current dictator, Recep Tayyip Erdogan. About a decade ago, Erdogan broke with one of his main allies, a prominent cleric named Muhammed Fethullah Gülen, who lives in Pennsylvania. This political break led to increasingly vicious infighting between supporters of both men and arguably sparked a coup d'état against Erdogan in Turkey.

But the rivalry took on a legal dimension when Erdogan's regime recruited a handful of proxies to file frivolous claims against Gülen in the District Court for the Eastern District of Pennsylvania. Turkish government lawyers representing the plaintiffs admitted that the lawsuit was "a legal battle as well as a political battle and an investigation targeting the Gülen Movement" that would show Gülen is far from "untouchable in the United States." This is just one example of similar claims aimed at quashing dissent filed by the Chinese Communist Party, Russia, and Venezuela.

In a forthcoming article in the University of Chicago Law Review, Foreign Dictators in U.S. Court, excerpted here, I call attention to how U.S. law allows foreign dictators to take advantage of our courts. There is a long and rich literature on human rights and property claims against foreign dictators, but much of it is siloed by substantive area of law and focuses on foreign governments as defendants. My paper, by contrast, offers a trans-substantive view of dictators as a unique kind of litigant, with particular emphasis on their role as plaintiffs. The paper also offers concrete proposals to prevent dictators from misusing American courts to pursue political ends.

The main doctrinal issue with these cases is the following asymmetry: (1) plaintiffs wishing to sue foreign governments in U.S. courts often face insurmountable burdens—the Foreign Sovereign Immunities Act, protection under the "act of state" doctrine, and common law immunities—that shield foreign dictators as defendants; but (2) foreign governments have free access to U.S. courts as plaintiffs to pursue newspapers or political dissidents. This asymmetry benefits foreign authoritarian regimes, sometimes turning U.S. courts into instruments of authoritarian oppression. I'll dive in to this asymmetry more in future posts.

Now, to be sure, these claims have historical antecedents. Foreign dictatorships have litigated in U.S. courts for decades. In Banco Nacional de Cuba v. Sabbatino, the Supreme Court allowed Fidel Castro's Cuba to file a federal case seeking funds resulting from the sale of Cuban sugar. The Court explicitly rejected the argument that Cuba "should be denied access to American courts because Cuba is an unfriendly power and does not permit nationals of this country to obtain relief in its courts."

So too for Mao Zedong's China. In the 1950s, the Northern District of California witnessed a series of contentious cases between Mao and his direct rival, the Kuomintang, over Chinese funds deposited in U.S. banks. The list goes on and on—Muammar Gaddafi, Augusto Pinochet, Ferdinand Marcos, and Manuel Noriega, among many others, have appeared in district court dockets.

Indeed, the history of these claims arguably traces back to a canonical 1812 case on sovereign immunity that involved, in the words of the Court, "Napoleon, the reigning Emperor of the French." Incidentally, the first case to establish the so-called "foreign privilege of bringing suit" involved a Napoleon, too: Bonaparte's nephew, Emperor Napoleon III.

What is different about recent cases is that while Mao and Castro filed non-frivolous claims, 21st century authoritarian governments have weaponized litigation to punish critics and newspapers. For instance, Venezuelan proxies have litigated defamation claims against the Wall Street Journal and Univision, clearly aimed at intimidating journalists for reporting on Venezuelan crimes.

The Chinese Communist Party has gone as far as to declare a "multidimensional legal war" against Chinese emigres in the U.S. In this war, Chinese companies file tort and breach of contract claims against dissidents who have recently fled to the United States to force them to return to China. While the use of proxies conceals the involvement of the CCP in political harassment lawsuits, some Chinese officials have acknowledged using U.S. litigation to intimidate Chinese dissidents.

We should worry about the use of our courts to project foreign authoritarian power. This is only one part of broader authoritarian efforts to maintain power at home and intimidate opponents abroad—a burgeoning phenomenon of transnational repression. Foreign authoritarians have abused their own laws to stay in power and now seek to manipulate foreign courts and, as Tom Ginsburg has argued, even international law.

That is why one of the main goals of the project is normative:

In this Article I argue that U.S. courts should make it harder for foreign dictators to take advantage of our legal system. The premise underlying the argument is simple: U.S. courts should not serve the interests of foreign dictatorships if they can avoid it. Liberal theorists from Karl Popper to John Rawls have defended a democracy's right to resist having its institutions employed for illiberal purposes. Indeed, under a Kantian view of international law, democracies are not obligated to extend comity to tyrannical states because dictators do not represent their people and thus "cannot create obligations for their subjects." Without necessarily embracing that view, the problem is that the international comity-related doctrines benefit all sovereigns equally, including those governed by dictatorships. So then the question becomes whether domestic law requires comity to foreign dictators. If it does not, courts can and should discard it. . . .

The Article demonstrates that there is no historical, constitutional, or statutory obligation on U.S. courts to give foreign dictators these legal protections and unfettered access to our courts. Because of that, I offer four concrete proposals to both stymy dictators' access to U.S. court as plaintiffs—through a proposed foreign sovereign anti-SLAPP statute—and weaken the protections that dictators enjoy as defendants. Simply stated, U.S. courts should not be instruments of foreign authoritarian oppression.

In my guest posts I'll be dividing the paper as follows: (II) The Doctrinal Asymmetry that Empowers Foreign Dictators, (III) U.S. Courts Can Discriminate Against Foreign Dictators, (IV) Directly Discriminating by Regime Type is Probably a Bad Idea, (V) Alternative Tools to Block Foreign Dictators.