Civil Procedure

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.

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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.

 

NEXT: Prof. Diego Zambrano (Stanford) Guest-Blogging About "Foreign Dictators in U.S. Court"

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  1. I ask again: (a) why don’t the Anti-SLAPP laws apply, and (b) once the foreign state (i.e. dictator) accepts the US court’s jurisdiction by filing the suit, why isn’t the court subject to the court’s sanctions and penalties as well?

    Not to mention the US lawyers who are acting as agents for the dictators because I believe that one must graduate from a US law school and pass a state bar exam to be a US attorney…

    1. (a) Because there is no federal anti-SLAPP law. And while some federal courts will apply state anti-SLAPP laws in diversity suits, I’m skeptical that would apply to suits brought in federal court under federal law by foreign nationals.

      1. There is still rule 11 and the court’s inherent powers if the claim goes too far.

  2. Great question Dr. Ed 2. Check out pages 56-57 of the piece. Here’s an excerpt: Although state anti-SLAPP statutes already cover defamation claims, courts have previously refused to apply them in federal court (because there’s an Erie problem). See e.g., Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015); Fridman v. Bean LLC, 2019 WL 231751 (D.D.C. Jan. 14, 2019). Courts have also refused to grant Rule 11 sanctions. See Ates v. Gulen, 3:15-cv-02354-RDM (June 29, 2016) (denying a motion for Rule 11 sanctions); Xinba Constr. Grp., 2019 BL 383407 (N.J. Super. Ct. Law Div. Sept. 20, 2019) (denying abuse of process counterclaim). Partly, courts don’t want to sanction foreign countries or proxies. They need Congress to give them the political backing to do so.

    1. I’m reminded of Daniel Shays….

  3. So the problem here is foreign dictators suing their own citizens, or naturalized US citizens from their countries, in US courts on frivolous grounds and for harassment purposes.

    First, could you identify some example cases where this happens? The post was rather short on convincing evidence.

    Second, what happened in these cases? Which side won? After what in the way of proceedings? Is the problem that the dictators are able to win when you think they shouldn’t? Or is it that the defendents get tied up in procedural knots and delaying tactics, and are forced to spend large sums on lawyers?

    If the latter, what makes this situation different from the many other kinds of powerful people and entitities who use lawsuits for harassment purposes? Why wouldn’t a more general remedy like improved policing of frivolous lawsuits and more readily obtainable sanctions be adequate?

    It goes against both international law and the teaditional impartiality of the courts to vary the rights of recognized foreign countries by their form of government and whether we like them or not. There is a reason why the Supreme Court has traditionally refused to do this. There is similarly a reason why Justice is traditionally depicted in court artwork as having a blindfold.

    Why wouldn’t a remedy that depends only on the litigation behavior of the party initiating the litigation, and not whether we like that party or not for other reasons, be adequate?

    1. “Why wouldn’t a more general remedy like improved policing of frivolous lawsuits and more readily obtainable sanctions be adequate?”

      Anti-SLAPP laws come to mind…..

      1. This is remarkable.

        You’ve had it explained to you twice why anti-SLAPP is not relevant here.

        This *entire comment thread* is you talking about SLAPP and others telling you it doesn’t apply, and why it doesn’t apply.

        And yet, here you go a third time.

        1. And you totally missed my point about Daniel Shays…

          Much of the US Constitution was written in response to him, and my point was that the anti-SLAPP laws *should* apply because this is a political and not legal issue. The courts need a nudge from Congress, lest it be from another Daniel Shays.

          Speaking of the latter, word is that there is a serious problem with one of the Chauvin jurors, possibly enough for a mistrial, just in time for the spring riot season.

        2. The potential remedies could include new laws that Congress passes. The post deals with a perceived problem. It’s not constrained by the courts’ current limits. Indeed, it says the current limits are part of the problem.

          So if it would solve the problem if Congress passed an anti-SLAPP law for federal courta (or passed legislation telling federal courts to apply state anti-SLAPP laws) would be a solution, then it seems to me it’s on the table.

          The fact that Congress currently doesn’t authorize anti-SLAPP is, at least arguably, part of fhe problem the post is talking about.

          When the statement is “we need a law against X to solve problem Y” then the retort “But X is currently legal!” isn’t an answer. It does nothing to explain why a law against X is irrelevant to solving problem Y.

    2. Posts III-V will cover these questions. Also, take a look at the paper around page 28 for an answer to your question on “who is winning.”

  4. IANAL so just throwing this out there but could Discovery be used against a dictator plaintiff?

    Once they’re in our courts, they have to play by our rules.

    1. You’d think that, but for some asinine reason I can’t comprehend, voluntarily waiving immunity and subjecting yourself to the court’s jurisdiction so as to be able to file the lawsuit doesn’t constitute voluntarily waving immunity and subjecting yourself to the court’s jurisdiction…

      1. The FSIA does have a counterclaim exception but it is limited to the specific case. So, if a dictator-plaintiff sues (usually through a proxy) the defendant can counterclaim a related claim. But that doesn’t solve the broader problem of dictator-plaintiffs harassing a newspaper and then that newspaper having no way to sue the country for unrelated claims.

  5. A federal anti-SLAPP statute is a good idea, but why restrict it only to foreign sovereigns? Is government-aided harassment acceptable as long as the aggressor is domestic or a non-sovereign foreigner?

    1. That should be on the table, too. But the paper stays out of that broader debate which needs to consider a lot more factors. A narrow anti-SLAPP should be acceptable but a broader one might get wrapped up in politics.

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