Foreign Dictators in U.S. Court, Part IV

Courts should probably not discriminate by regime type because it would raise problems of administrability, separation of powers, and would be over- and under-inclusive.

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As I have argued over the past three days, U.S. courts are unnecessarily allowing foreign dictators to take advantage of access to our courts. No statute, doctrine, or constitutional principle forces courts to treat foreign dictatorships the same way as other parties. There is no obligation to give authoritarians free access to our courts or protections under the act of state or comity doctrines. Yet, in a forthcoming article, I argue that courts might not want to actively discriminate against foreign dictatorships. Unfortunately, there is simply no easy way for courts to administer a categorical anti-dictatorship standard. Today, I want to focus on three problems with anti-dictatorship discrimination: separation of powers, administrability, and a potential category-error.

Let's begin with separation of powers and administrability concerns, which have particular bite in this context. The standard argument cashes out here: the executive has a wide array of advantages over the judiciary in foreign affairs, including expertise, speed, and flexibility. These matter when it comes to foreign dictators because, as I argue in the paper, "forcing U.S. courts to distinguish between friendly and unfriendly dictatorships, as well as the different shades of authoritarian governments (e.g., competitive authoritarian, hybrid regimes, semidemocracy, illiberal democracy, etc.) would be unfeasible. Courts would have difficulty determining even whether a foreign dictator is a U.S. ally or rival. This problem is best captured by the apocryphal quotation attributed to President Roosevelt that Nicaraguan dictator Somoza 'may be a son of a bitch, but he's our son of a bitch.'"

Even if courts could discern among the worst types of dictators—Kim Jong-Un would be an easy one—they may often disagree with other courts or with the executive, bringing disuniformity to our foreign affairs.

In addition to the separation of powers and administrability problems, there's a potential category-error in this entire effort:

The problem with dictatorial acts is that they fundamentally challenge basic human rights and liberties. But democratic governments can do that, too. That is why U.S. courts have previously refused to enforce libel awards from the United Kingdom … Singapore's authoritarian government may respect certain rights more than Brazil's backsliding democracy. It would therefore be underinclusive to discriminate against foreign dictatorships but allow similarly egregious acts performed by democracies in U.S. courts….

Judging all dictatorships for purposes of all claims would also be substantively overinclusive. There is no need to prevent dictatorships from litigating non-political claims like contract disputes or embassy hit-and-run accidents…. Suppose that Venezuela's authoritarian government enters into a series of contracts with an American construction company that include choice of law and choice of forum clauses that point to U.S. courts. Suppose the company then refuses to perform under the contract but nonetheless retains payment. Surely, U.S. courts should be available for such a claim, even if it is filed in the name of Venezuela's dictator. This is the type of claim where the United States retains an interest in disciplining domestic companies and enforcing the relevant contract laws.

For those who still wish courts could create an anti-dictatorship standard, another reason to be skeptical is that courts actually tried but failed to implement something like it in the context of extraditions. Bilateral extradition treaties allow signatories to "demand and obtain extradition of an accused criminal." But the so-called "political offense exception" allows courts to refuse extradition on the grounds that a foreign sovereign has charged the defendant with "offenses … of a political character."

For decades, some courts and commentators argued that this political offense exception was "designed to protect the right to rebel against tyrannical governments." In other words, it allowed democracies to refuse extradition of political dissidents when a dictatorship requested it. As Thomas Carbonneau argued, "[b]y invoking the political offense exception when confronted with extradition requests from despotic governments, democratic States could proffer protection to political dissenters and thus indirectly promote democratic tendencies."

Some courts tried to operationalize this into a test, looking at whether a dissident's acts "were blows struck in the cause of freedom against a repressive totalitarian regime." Unfortunately, this approach has faltered in recent decades. Indeed, the Ninth Circuit rejected it entirely because it did not "believe it appropriate to make qualitative judgments regarding a foreign government or a struggle designed to alter that government." Instead, the Ninth Circuit has favored an analysis that protects dissident acts that are "political."

The story of the political offense exception counsels, then, that an anti-dictatorship standard may be inappropriate and also unnecessary if there are alternative ways to get at the same problem.

Tomorrow, I sidestep these concerns and propose an array of suggestions that may allow courts to refuse the benefit of international comity to most foreign dictators in an administrable way.

NEXT: Today in Supreme Court History: May 6, 1776

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  1. Hang on, what? What was the point of the last three posts then if you don’t agree with the argument that follows from what they advance? I’m somewhat confused.

    1. The prescriptions in the paper try to solve the problem without strictly discriminating by regime type.

  2. Almost all tort litigation is frivolous, fraudulent, extortionate, harassing, and unjustified. Foresseabulity is a supeenatural power attributeed to God, as is the power to prevent accident. If that is the requirement for all torts, then they all violate thr Establishment Clause. That is a Catholic doctrine, albeit expounded by an indoctrinated, lawyer d-wprd Jew on the Supreme Court, a Sephardic one at that, like the clown Borat.

    Hey lawyer d-word, the Lotto number for today is? More likely to be right than predicting an accident at the most dangerous intersection in the country, d-word.

  3. So far, we haven’t been told of a genuine problem and we have been told that any direct approach to solving the non-problem is, for good reason, unavailable. I look forward to what will fall by the wayside next.

    1. You are free to believe that dozens of lawsuits filed by Russia, China, Venezuela, and Turkey against U.S. newspapers, dissidents, and others with the sole aim of political harassment is . . . not a problem. The State Dept. and others certainly think it is a problem that China declared a multidimensional legal war aimed at using U.S. courts to achieve political ends: https://www.wsj.com/articles/china-corruption-president-xi-communist-party-fugitives-california-lawsuits-us-courts-11596032112

      1. Hundreds, if not thousands, of lawsuits by all sorts of people brought in federal courts with the sole aim of harassment are, of course, a problem, but our courts are good at handling them. Why, for example, a lawsuit brought by, say, the King of Morocco is more of a problem than dozens or hundreds of lawsuits from Americans claiming Moorish citizenship and allegiance to him, and why special rules are necessary to deal with one but not the other remains to be shown.

        1. Because vast areas of law are premised on the idea that sovereigns are different. When a sovereign does it you are now in the realm of foreign relations, diplomacy, and maybe even war. We have an entire field called “Foreign Relations Law” that studies sovereign-specific statutes and doctrines like act of state, FSIA, foreign official immunity, etc. Sovereigns also implicate the separation of powers, obligations under international law, and potential retaliatory moves.

          1. The law already says sovereigns are different. That is why we have a Foreign Sovereign Immunities Act when sovereigns are defendants. So why don’t we have a statute for when sovereigns are plaintiffs?

            1. Because we don’t need one?

  4. One potential solution would be to amend the Alien Tort Claims Act (or pass an analogous statute) to allow jurisdiction for counterclaims of torts in violation of a US Treaty or International Law even when those acts don’t occur in the United States. In other words, the presumption against extraterritoriality would still generally apply, but it would be inapplicable if the foreign government chooses to avail themselves of US courts to sue their own citizens. In those cases, the foreign dictator would do so at their own risk because they would risk getting sued themselves.

    1. Exactly!!!

      And would it actually have to be Congress that did it?

      From Nobamacare being a tax to Title IX covering trannies, courts have done worse…

  5. We should allow the State Department to block a foreign leader from proceeding as a plaintiff. That puts the political question where it belongs.

    1. State Department is Executive Branch. Any separation of powers problem?

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