Congressional use of immunity grants after Iran-Contra

SSRN Electronic Journal, 2016

lawsuit. Judicial deference to the Executive on foreign official immunity calls may be proper; blind obedience is not. In fact, such unilateral control ultimately hurts the State Department itself, which must balance complex and countervailing foreign policy interests. So how should the Executive's power play be answered? Despite the Supreme Court's reference to judgemade federal common law in Samantar, this Note argues that the tug-of-war between the executive and judicial branches requires congressional action because the courts are in disarray, with some already having acquiesced to executive control. The current disorder is a striking replay of what happened in the doctrine of foreign sovereign immunity in the late 1950s and 1960s in the aftermath of the 1952 Tate Letter-an earlier dispatch from a different State Department Legal Advisor that sparked such confusion in the federal common law of foreign sovereign immunity that Congress was compelled to intervene with the FSIA. This Note concludes with a model statute that Congress should consider enacting.

The immunity of foreign officials from legal proceedings in U.S. courts has drawn significant attention from scholars, advocates, and judges in the wake of the Supreme Court’s decision in Samantar v. Yousuf, 130 S.Ct. 2278 (2010), which held that foreign official immunity is governed by the common law rather than the Foreign Sovereign Immunities Act (FSIA). The common law of foreign official immunity, which the Samantar Court did not define, operates at the intersection of international law and domestic law, and it implicates the constitutional separation of powers between the executive and judicial branches. Conflicting visions of the substance and process of common law immunity have already emerged in the wake of the Samantar opinion, and will continue to compete until the Supreme Court revisits this issue in a future case. At stake is not only the ability of suits to proceed against foreign officials, but also the relationship between the executive branch and the judiciary in matters affecting foreign affairs. The original research presented in this Article yields two striking observations. First, a claim that the defendant acted in his official capacity did not operate as an automatic barrier to adjudication on the merits; foreign officials who were neither diplomatic officials nor heads of state were “on the same footing” as any other foreigner with respect to their “suability.” Second, the Executive believed that it did not have constitutional authority to instruct a court to dismiss a private suit on immunity grounds. Although twenty-first century advocates might make policy arguments for blanket immunity or absolute Executive discretion, such choices are not consistent with — let alone compelled by — the eighteenth-century practices and understandings recovered here.

2011

2011

The paper on the Iran-Contra Affair will cover the funding of the uprising of the Contras, a paramilitary group of Adolfo Calero Portocarrero, from the CIA and President Reagan's Administration, against the Republic of Nicaragua dictator Anastasio Somoza in the late 70s. The war of the Contra as against the socialist Sandinista's attempting to restore the new Somoza associated factions. The squestions about the ICA and conflict: Why did the U.S. government agencies, i.e., the Reagan Administration and the Central Intelligence Agency(CIA) continously fund and seek funding for the conflict of the Nicaraguan rebels after the overthrow of Somoza? The support of the Contras from the Reagan Admin and the CIA went as far to violate laws stands as irrational behavior and compare with a Banality of Evil, a term of the reasoning behind why good people do atrocious deeds. The United States of America\s governmental powers within the instance of the ICA lie indicative of the colonial mentality that placates covert undermining of States and Countries for political and governmental pwoers and not for the interests of its citizens. The CIA became bartering with its financial life-line and the international discount rate of the Nicaraguan government of Somoza and the new regime over extended its discount rate, a negotiation term of International Affairs of stae diplomacy. Evidence lies within the records of the White House Admin, congressional hearings and investigation committees, and writing from a Mercury News reporter Gary Webb.

The mystery of the Iran-Contra Affair (ICA) stands as the reason for correlated and partitioned incidents of the United States (US) executive branch supporting foreign state-sanctioned human rights violators with illegal financial transactions. Past events of the US Presidential administrations of Jimmy Carter and Ronald Reagan buttressed suspected regimes that the US had either aided groups to sponsor murderous acts, or cooperated drug conspiracies for foreign government change in Nicaragua and an Iran hostage release. The presidential administrations of Carter and Reagan engaged in the grand strategy of off-shore balancing, which consists of utilizing its superior force and hegemon affect to circumvent or deter a potentially hostile government. Enabled by altered government international policies, i.e., the Boland Act, the US carried out criminally suspect financing of foreign state-sanctioned corruption with the National Security Council(NSC) and the Central Intelligence Agency(CIA). The ideological state apparatus of the US coupled detrimental protocols, which led each leader, Carter, Reagan, the Somozas, Lieutenant Colonel Oliver North, and others, to violate their ethical standards.

St John S Law Review, 2012

Indiana International & Comparative Law Review

2019] SUING SPONSORS OF TERRORISM IN U.S. COURTS 307 restrictive theory. 15 This, in turn, required the State Department to "perform a judicial function" for which it was ill-suited, some argued, because, for example, it "lacked the capacity to take factual evidence or afford appellate review," it was constrained in its determinations by "diplomatic and political pressures" outside of the merits of any particular assertion of sovereign immunity, and it therefore produced results that some have labeled "unpredictable" and "sometimes unprincipled." 16 Congress attended to these problems some quarter-century after the Tate Letter by using its powers under Articles II (§ 3, C. 8-to regulate commerce with foreign nations) and III (to define the jurisdiction of the federal courts) to subject to a fully-worked out statutory scheme, rather than ad hoc advice from the State Department, the determination of sovereign immunity for foreign nations in U.S. litigation: In 1976, Congress passed the Foreign Sovereign Immunities Act in order to free theGovernment from the case-by-case diplomatic pressures, to clarify the governing standards, and to "assur[e] litigants that. .. decisions are made on purely legal grounds and under procedures that insure due process," H.R.Rep. No. 94-1487, p. 7 (1976), reprinted in [1976] U.S.Code Cong. & Ad.News 6604. To accomplish these objectives, the Act contains a comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies or instrumentalities. 17 While the FSIA greatly reformed and regularized the process of implementing the modern restrictive theory of sovereign immunity, it still left a fair number of interpretative provisions for the federal courts. More than a few of these FSIA interpretation cases have reached the U.S. Supreme Court.

Law & Society Review, 2016

Notre Dame L., 1962

following popularized investigations into organized crime and subversive activities, more than a score of immunity proposals were introduced and seriously considered by the 82nd and 83rd Congresses.