Dear Justice Gorsuch: There’s No Reason to Worry About the Remand in Halkbank
May 3, 2023
In Turkiye Halk Bankasi A.S. v. United States (Halkbank), the Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) does not apply to criminal proceedings. The Court remanded the case to the Second Circuit to reconsider Halkbank’s claim of common law immunity.
Justice Gorsuch, joined by Justice Alito, wrote a partial dissent. He would have held that the FSIA applies to criminal proceedings but that the case against Halkbank falls within the act’s commercial activity exception. Justice Gorsuch also expressed concern about the Court’s decision to remand the question of common law immunity. “Many thorny questions lie down the ‘common law’ path,” he wrote, “and the Court fails to supply guidance on how to resolve any of them.”
In this post, I suggest that the answers to these questions are relatively straightforward. There is no reason to worry, Justice Gorsuch, about the remand in Halkbank.
Following the Executive or Customary International Law
“Right out of the gate, lower courts will have to decide between two very different approaches,” Justice Gorsuch writes. “One option is to defer to the Executive Branch’s judgment on whether to grant immunity to a foreign sovereign …. The other option is for a court to make the immunity decision looking to customary international law and other sources.”
Since the Supreme Court’s decision in Samantar v. Yousuf (2010) holding that the FSIA does not govern the immunity of foreign officials, the executive branch has consistently taken the position that courts in the United States are required to follow its determinations of immunity in specific cases. It made the same argument below in Halkbank. Ingrid (Wuerth) Brunk has observed, however, that “the power that the government seeks is not ‘deference’ but instead obedience from the courts.” As Justice Gorsuch notes in his Halkbank dissent, the government’s position raises serious separation of powers concerns, “relegating courts to the status of potted plants, inconsistent with their duty to say what the law is in the cases that come before them.”
Shortly after Samantar, Ingrid made the case against blindly following the State Department on questions of foreign official immunity. More recently, Chimène Keitner and I looked at the question again and came to the same conclusion. The case against obeying the executive branch is perhaps even stronger for criminal proceedings than for civil suits against foreign officials. In federal criminal proceedings, the prosecutor is the executive branch. To say that a federal court must follow the executive branch’s determination that the defendant lacks common law immunity is to say that there is no such immunity in federal criminal proceedings. The better answer, as I explain below, is that the executive branch is entitled to deference, based on its expertise about international law, but is not entitled to blind obedience.
In the context of foreign official immunity, Second Circuit precedent holds that courts must blindly follow immunity determinations by the executive branch. But there is good reason for the Second Circuit to reconsider its position in this case. The court of appeals previously rejected Halkbank’s claim of immunity partly on the ground that, “at common law, sovereign immunity determinations were the prerogative of the Executive Branch; thus, the decision to bring criminal charges would have necessarily manifested the Executive Branch’s view that no sovereign immunity existed.” If the Supreme Court agreed, it could easily have affirmed on that basis. But, instead, the Court remanded the question of common law immunity. Presumably it intends the remand to be meaningful.
Applying Customary International Law
“[A]pplying customary international law,” Justice Gorsuch writes in his Halkbank dissent, “comes with its own puzzles.” The first is determining the content of customary international law. But this inquiry is not beyond the capacity of U.S. judges, particularly with input from the State Department, which has expertise on customary international law. Just as the executive branch’s interpretation of treaties “is entitled to great weight,” so too should its interpretation of customary international law be. Unlike the blind obedience on which the executive currently insists, this would be true deference that does not make judges “potted plants” and respects the separation of powers.
In Halkbank, the customary international law question is not hard. As Section 102(2) of the Restatement (Third) of Foreign Relations Law states, “[c]ustomary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.” There is no general and consistent practice of extending immunity to corporations like Halkbank, engaged in non-sovereign banking activities, based simply on ownership by a foreign state. To my knowledge, the United States is the only country to provide immunity to foreign corporations based on ownership. It does so in the FSIA, which of course does not apply here. Justice Gorsuch suggests disagreement on the substance of customary international law by juxtaposing two amicus briefs. But in fact, Roger O’Keefe’s brief and the one filed by Mark Feldman and Chimène Keitner agree that a state-owned corporation is not entitled to immunity unless it is exercising a sovereign function.
The second “puzzle” is “on what authority federal courts might develop and apply customary international law.” Citing Curtis Bradley and Jack Goldsmith on the one hand and Harold Koh on the other, Justice Gorsuch suggests that “whether customary international law survives as a form of federal common law after Erie is a matter of considerable debate among scholars.” “Must lower courts confront this long-running debate,” he asks, “to resolve a claim of foreign sovereign immunity in criminal cases?”
Of course not. Lower courts must simply recognize that immunities required by customary international law are an appropriate basis for making federal common law rules. Although the Supreme Court is generally disinclined to create federal common law, it has recognized that “foreign relations” are one area in which federal rules may be “necessary to protect uniquely federal interests.” A leading example is the federal act of state doctrine. Indeed, the argument for treating foreign state immunity as federal common law is stronger than for the act of state doctrine because foreign state immunity is required by customary international law, whereas the act of state doctrine is not.
The Supreme Court’s decision in Samantar also serves as a precedent for federal common law making with respect to immunity. There, the Court held that the FSIA does not apply to foreign officials, whose immunity “is properly governed by the common law.” Even my friend Curt Bradley understands this to mean federal common law.
Still, federal courts should proceed cautiously when recognizing claims of immunity under federal common law. In the context of foreign official immunity, Chimène and I have argued that federal courts should not recognize more immunity than customary international law requires. That is the prerogative of Congress, not the courts. The same is true of immunities from criminal prosecution.
Binding State Courts
Finally, Justice Gorsuch worried about “what constraints remain on state prosecutions of foreign sovereigns.” The possibility is not fanciful. During the pandemic, for example, Missouri brought a civil action against various entities associated with the Chinese government. It is not hard to imagine a state attorney general attempting to generate headlines by indicting a foreign state or one of its agencies in a similar situation.
But creating federal common law immunities to give effect to customary international law solves this problem. Just like the act of state doctrine, the federal common law rules of immunity from criminal prosecution would bind state courts under the Supremacy Clause.
The Supreme Court came to the right conclusion in Halkbank, holding that the FSIA does not apply to criminal proceedings. It is now up to the Second Circuit to reach the right conclusions on remand. The court of appeals should not blindly obey a determination of immunity by the executive branch, but it should give significant weight to the State Department’s reasoned explanation of customary international law. The court should create federal common law rules of immunity from criminal prosecution if, but only if, customary international law requires such immunity. In Halkbank’s case this means no immunity from criminal proceedings. Although Halkbank is state-owned, customary international law does not require immunity based simply on state ownership when the defendant is not performing a sovereign function.
That is not to say that the prosecution of Halkbank should go forward. There are serious extraterritoriality problems with the charges that the district court largely ignored, problems that I will discuss in a future post. Unlike the immunity questions, however, the district court’s rejection of Halkbank’s extraterritoriality arguments is not immediately appealable, and an ad hoc interlocutory appeal under 28 U.S.C. § 1292(b) seems unlikely in light of the district court’s dismissive attitude. Thus, it may be only after Halkbank is tried and convicted that the extraterritoriality issues are likely to receive the attention they deserve.