Tamil plaintiffs oppose US Government's stand on Rajapakse immunity

[TamilNet, Friday, 20 January 2012, 01:41 GMT]
Judge Kotelly of District Court of District of Columbia, after considering the Tamil plaintiffs' motion asking the court to allow the plaintiffs to file a response to the United States suggestion of immunity to Sri Lanka's President Rajapakse, issued an order Tuesday granting permission to plaintiffs' attorney Bruce Fein to file the response on or before 3rd February, and to the United States Government to file a reply on a before 13th February. In the process, Judge Kotelly rejected defendant Rajapakse's opposition to plaintiffs request to be permitted to respond to the U.S. Government's suggestion of immunity.

• Opposing Memo from Patton Boggs Attorney

Rajapaskse's attorney Mitchell Berger from Washington lobby firm, Patton Boggs, had earlier asked the Judge to deny any further action by the plaintiffs.

Berger cited US Government's suggestion of immunity, and said the United States had demonstrated that "the Executive Branch has the sole authority to determine the immunity from suit of sitting head of state" and that "[n]o Court has ever subjected a sitting head of state to suit once the Executive Branch has suggested the head of state's immunity."

• Judge Kotelly's Order

Judge Kotelly rejected Berger's argument and set dates for the plaintiff to respond and the US Government to reply.

Plaintiffs' attorney Bruce Fein told TamilNet that while legislative history showed that Courts should give deference to the US Government's position, Congress still gave the Court the authority to make the final determination on the immunity question based on the facts of the case.

Mr. Fein added that the plaintiffs in this case are dealing with a sitting President who has amassed unprecedented power in a State where all dissent is suppressed, and a head of State who is alleged to have committed war-crimes and crimes against humanity. We hope these facts will influence Judge Kotelly's decision on the immunity question, Fein said.

Spokesperson for Tamils Against Genocide (TAG) which is sponsoring the case said, "while we are cognizant of the legal hurdle ahead of us, we are determined to record our opposition to the US Government's stand in suggesting immunity to someone alleged to have committed Universal crimes."

Chronology:

20.01.12  Tamil plaintiffs oppose US Government's stand on R..

15.01.12  Executive overreach to provide immunity to Univers..

14.01.12  US "suggests" immunity to Rajapakse from suit

18.12.11  Rajapakse case, a legal pioneer, reaches historic ..

17.12.11  Rajapakse accepts Court summons, asks US to confer..

04.12.11  War crime litigations reach crucial phase in US co..

23.11.11  Judge Kotelly to decide Rajapakse's legal fate in ..

19.10.11  Rajapakse says will defy Court Order, Shavendra hi..

14.10.11  US Court authorizes use of TamilNet to serve Rajap..

01.10.11  Rajapakse, an enemy of all mankind, filed U.S. Cou..

20.09.11  Rajapakse has no immunity against war crimes prose..

06.08.11  US Court rules Rumsfeld can be sued for torture

27.06.11  Colombo fears judgment against Rajapakse in US Cou..

18.06.11  Hague summons reaches Rajapakse for US Court case

02.06.11  U.S. case: Rajapakse ducks service, Court order so..

09.02.11  DC Court to serve summons to Rajapakse

29.01.11  Ambassador, an honest man sent to lie for Sri Lank..

28.01.11  Rajapaksa sued in US Courts over war-crimes, plain..

23.01.11  TAG to file civil case against Rajapakse in Texas ..

Executive overreach to provide immunity to Universal crimes questioned

[TamilNet, Sunday, 15 January 2012, 03:34 GMT]
Bruce Fein, attorney for the three Tamil plaintiffs who have charged Sri Lanka's President Mahinda Rajapakse of war-crimes in the District Court of District of Columbia, in response to the "suggestion" of immunity for Rajapakse by the US Justice Department, told TamilNet, that he has asked the court to allow the plaintiffs to file a Memorandum in Opposition, and added "among other deficiencies in the US Government's legal analysis, we underscored the counter-constitutional proposition asserted by the Executive Branch that it was crowned with judicial power to order the dismissal of lawsuits based on its understanding of the law which federal judges were precluded from second-guessing. Such a putative power in the Executive Branch would blatantly flout the separation of powers enshrined in the Constitution."

Full text of the statement of Bruce Fein, attorney for the plaintiffs, follows:

• State Dept: Status Report on Immunity

• State Dept: Suggestion of Immunity

• Plaintiffs' Request to allow Opposition Motion

Bruce Fein, former US Associate Deputy Attorney General

Harold Koh, Legal Advisor, Department of State

District Court Judge Colleen Kollar-Kotelly

Last Friday, January 13, 2012, the Executive Branch filed a Suggestion of Immunity in the outstanding Torture Victims Protection Act (TVPA) lawsuit for extra-judicial killings initiated against Sri Lankan President Mahinda Rajapaksa in the United States District Court for the District of Columbia. The State Department and the Department of Justice outlandishly maintained that the foreign policy of the United States is entrusted solely to the President, without even a cameo appearance for Congress; that the Executive Branch is empowered to decide in lieu of federal courts whether suits under statutes enacted by Congress against sitting heads of state for universal crimes should be permitted; and, that the President had decided in the exercise of his plenary foreign policy prerogatives to direct the District Court to dismiss the TVPA suit for extra-judicial killings orchestrated by President Rajapaksa in violation of international law.

On the day the Suggestion of Immunity was filed, we filed a motion to permit plaintiffs to respond with a Memorandum in Opposition within 45 days.

Among other deficiencies in legal analysis, we underscored the counter-constitutional proposition asserted by the Executive Branch that it was crowned with judicial power to order the dismissal of lawsuits based on its understanding of the law which federal judges were precluded from second-guessing. Such a putative power in the Executive Branch would blatantly flout the separation of powers enshrined in the Constitution. The Suggestion of Immunity also wrongly ignored the congressional decision in the TVPA to expose “any individual” to a lawsuit for damages on account of complicity in extra-judicial killings irrespective of any office the culprit may be occupying. Congress is not required by the Constitution to be an echo chamber of the foreign policy of the President.

We are now awaiting decisions by the District Court in response to the Executive Branch’s Suggestion of Immunity and our motion to permit filing an opposition. In the meantime, we are preparing to amend our Complaint to add Defense Secretary Gotabaya Rajapaksa and former Army Commander Sarath Fonseka as co-defendants for their complicity in the extra-judicial killings of the victims whose legal representatives are the plaintiffs.

Chronology:

15.01.12  Executive overreach to provide immunity to Univers..

14.01.12  US "suggests" immunity to Rajapakse from suit

18.12.11  Rajapakse case, a legal pioneer, reaches historic ..

17.12.11  Rajapakse accepts Court summons, asks US to confer..

04.12.11  War crime litigations reach crucial phase in US co..

23.11.11  Judge Kotelly to decide Rajapakse's legal fate in ..

19.10.11  Rajapakse says will defy Court Order, Shavendra hi..

14.10.11  US Court authorizes use of TamilNet to serve Rajap..

01.10.11  Rajapakse, an enemy of all mankind, filed U.S. Cou..

20.09.11  Rajapakse has no immunity against war crimes prose..

06.08.11  US Court rules Rumsfeld can be sued for torture

27.06.11  Colombo fears judgment against Rajapakse in US Cou..

18.06.11  Hague summons reaches Rajapakse for US Court case

02.06.11  U.S. case: Rajapakse ducks service, Court order so..

09.02.11  DC Court to serve summons to Rajapakse

29.01.11  Ambassador, an honest man sent to lie for Sri Lank..

28.01.11  Rajapaksa sued in US Courts over war-crimes, plain..

23.01.11  TAG to file civil case against Rajapakse in Texas ..

Rajapakse case, a legal pioneer, reaches historic milestone, says Fein

[TamilNet, Sunday, 18 December 2011, 15:38 GMT]
An historic legal milestone was passed last Friday in the Torture Victims Protection Act (TVPA) lawsuit against Sri Lankan President Mahinda Rajapaksa for the extra-judicial killings of six Sri Lankan Tamils pending in the United States District Court for the District of Columbia, attorney for the plaintiffs, Bruce Fein said. A lawyer representing President Rajapaksa from the mega-law firm Patton Boggs LLC tacitly acknowledged receipt of the complaint and summons filed by the Plaintiffs in a motion to request the District Court to ask the U.S. Department of State for its views about the lawsuit. "The motion filed by President Rajapaksa formally brings him into the case, where for the first time he will be accountable to the rule of law, not the rule of the jungle," Fein added.

Excerpts from Fein's statement to TamilNet follow:

Bruce Fein, former US Associate Deputy Attorney General

"It can be anticipated that Patton Boggs will launch a massive lobbying effort at the State Department and in Congress in hopes of eliciting executive and legislative opposition to the TVPA lawsuit voiced to the United States District Court. The District Judge, however, has the final word irrespective of the President or Congress.

"We urgently need Tamil expatriates' generous support to launch an ambitious counter-campaign to recruit human rights groups, Nobel Peace Prize winners, former State Department officials who headed its human rights bureau, Members of Congress, and the media in favor of litigating the TVPA claims and against any legal immunity for President Rajapaksa.

"This case is a legal pioneer in several respects, and the legal research and analysis to litigate will be challenging. But if we can prevail on the immunity question, then countless other victims of President Rajapaksa’s signature human rights atrocities could file TVPA suits by piggy-backing on our legal victory. Among other things, President Rajapaksa is claiming act of state, sitting head of state, foreign sovereign immunity, political question, and personal jurisdiction defenses.

"We all know that the Lessons Learned and Reconciliation Commission report is a joke to enable President Rajapaksa to escape accountability for his endless human rights crimes. The pending TVPA lawsuit in the United States is our best hope to foil that ignominious escape," Fein told TamilNet.

Chronology:

18.12.11  Rajapakse case, a legal pioneer, reaches historic ..

17.12.11  Rajapakse accepts Court summons, asks US to confer..

04.12.11  War crime litigations reach crucial phase in US co..

23.11.11  Judge Kotelly to decide Rajapakse's legal fate in ..

19.10.11  Rajapakse says will defy Court Order, Shavendra hi..

14.10.11  US Court authorizes use of TamilNet to serve Rajap..

01.10.11  Rajapakse, an enemy of all mankind, filed U.S. Cou..

20.09.11  Rajapakse has no immunity against war crimes prose..

06.08.11  US Court rules Rumsfeld can be sued for torture

27.06.11  Colombo fears judgment against Rajapakse in US Cou..

18.06.11  Hague summons reaches Rajapakse for US Court case

02.06.11  U.S. case: Rajapakse ducks service, Court order so..

09.02.11  DC Court to serve summons to Rajapakse

29.01.11  Ambassador, an honest man sent to lie for Sri Lank..

28.01.11  Rajapaksa sued in US Courts over war-crimes, plain..

23.01.11  TAG to file civil case against Rajapakse in Texas ..

External Links:

TAG:

Tamils Against Genocide

Rajapakse accepts Court summons, asks US to confer immunity

[TamilNet, Saturday, 17 December 2011, 19:35 GMT]
After avoiding service for more than 9 months, and despite statements by Colombo that Sri Lanka's President Mahinda Rajapakse is not answerable to US Courts, Rajapakse-appointed counsel from the lobby firm of Patton Boggs filed a motion with the District Court of District of Columbia for "enlargement of time to respond to the complaint" related to the legal action, 11-cv-00235, by three Tamil plaintiffs sponsored by Tamils Against Genocide (TAG), a US-based activist group. Legal observers expressed surprise at the filing, which, in addition to effecting waiver of service, also attempts to set the time window for response pleading tied to a discretionary act by Judge Kotelly on seeking view of the US State Department.

• Rajapakse Motion seeking US intervention

Bruce Fein, attorney for the plaintiffs, said that the Court will likely reject the defendant's request, and set a time limit for the defendant to answer the complaint. The judge will independently decide if and when to seek views from the State Department, Fein said.

District Court Judge Colleen Kollar-Kotelly

Mitchell R. Berger, Partner at Patton Boggs

Legal observers said that despite earlier defiance, Rajapaksas may have relented after receiving legal advice from US indicating that failure to respond to the Court summons may result in a default judgement which will likely bar Rajapaksa from entering the US without paying the monetary award if granted by the court.

Spokesperson for Tamils Against Genocide (TAG), said: "This is a landmark development for the expatriate Tamils who are forcing Sri Lanka's President to a neutral court to answer charges of war-crimes. From absolute immunity enjoyed by Heads of State before worldwar II, evolving restricted immunity doctrines within the US's Federal Surveillance and Intelligence Act (FSIA) necessarily demand Rajapakse to present his exculpatory legal or factual arguement to avoid paying damages to the plaintiffs. Tamil lobby groups should work with sympathetic congresspersons to pressure the executive branch not to bail out the perpetrator of dastardly crimes against Tamil civilans," TAG added.

Plaintiff's attorney indicated that once the Court sets a timeline for submission he will review with plaintiffs the legally opportune time to include additional defendants to the case, including Gotabaya Rajapakse.

In addition to seeking the view of the US State Department, Rajapakse filing, even while the verdict on the acceptability of LLRC's work is being debated, disingenuously asserts that "United States Government has endorsed the work of the LLRC in addressing allegations concerning the actions of the combatants during the now-ended conflict" and uses the Assistant Secretary of State, Robert O' Blake's statements as defense to Rajapakse's alleged crimes and the purported US's policy approach to Sri Lanka, legal sources who have studied the Rajapakse motion said.

The future plan of legal defense of Rajapakse as briefly outlined in the Motion includes the following: (a) Court has no personal jurisdiction, (b) Heads of State are absolutely immune from suit in the United States, (c) Senior foreign government officials are entitled to foreign official immunity (d) plaintiffs’ claims raise non-justiciable political question, and (e) U.S. judicial evaluation of alleged sovereign acts within Sri Lanka would violate the Act of State doctrine.

Legal experts said that absent State Department intervention to save Rajapakse, the legal war will center around the restrictive immunity that may arise from the doctrines involving Head of State immunity. "That Patton Boggs would raise Act of State defense for the crimes against humanity alleged against Rajapakse, is unexpected," a legal expert said.

• Text of complaint for case 1:11-cv-00235

The Complaint by the three Tamil plaintiffs alleges multiple violations of the Torture Victims Protection Act (TVPA) based on Sri Lanka's President Rajapaksa’s command responsibility for the extrajudicial killings of Ragihar Manoharan, the son of Plaintiff Dr. Kasippillai Manoharan, of Premas Anandarajah, a humanitarian aid worker for Action Against Hunger, and husband of Plaintiff Kalaiselvi Lavan, and four members of the Thevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.

Chronology:

17.12.11  Rajapakse accepts Court summons, asks US to confer..

04.12.11  War crime litigations reach crucial phase in US co..

23.11.11  Judge Kotelly to decide Rajapakse's legal fate in ..

19.10.11  Rajapakse says will defy Court Order, Shavendra hi..

14.10.11  US Court authorizes use of TamilNet to serve Rajap..

01.10.11  Rajapakse, an enemy of all mankind, filed U.S. Cou..

20.09.11  Rajapakse has no immunity against war crimes prose..

06.08.11  US Court rules Rumsfeld can be sued for torture

27.06.11  Colombo fears judgment against Rajapakse in US Cou..

18.06.11  Hague summons reaches Rajapakse for US Court case

02.06.11  U.S. case: Rajapakse ducks service, Court order so..

09.02.11  DC Court to serve summons to Rajapakse

29.01.11  Ambassador, an honest man sent to lie for Sri Lank..

28.01.11  Rajapaksa sued in US Courts over war-crimes, plain..

23.01.11  TAG to file civil case against Rajapakse in Texas ..

External Links:

LI:

Rajapakse files motion in war crimes case, effectively accepts summons served