Foreign Dictators in U.S. Courts

From Augusto Pinochet to Jiang Zemin and Ferdinand Marcos, foreign dictators have for decades faced a range of claims in U.S. courts over property stored in the United States, torts, human rights, breach of contract, and sanctions violations. It may be unsurprising that dictators face these kinds claims as defendants, especially because they routinely violate human rights and private property protections around the world. But, perhaps more unexpectedly, there is also a line of cases in U.S. courts involving dictators as plaintiffs. For instance, Fidel Castro’s Cuba filed a case in the early 1960s seeking funds stemming from sugar sales. And Mao Zedong’s China litigated against the Kuomintang in the 1950s over Chinese funds deposited in U.S. banks. Still, it makes sense that in commercial or debt disputes, foreign authoritarian governments may be obligated to use our courts.

But a more worrisome development in dictator cases has taken place in the last decade. On the back of a global democratic recession, authoritarian governments from China, Russia, Turkey, and Venezuela have used the U.S. judicial system to file frivolous claims against political opponents. And these claims appear to be mainly a harassment technique against dissidents and media outlets based in the United States.

Take the case of one of the most notorious and brutal recent dictators—Venezuela’s Nicolas Maduro. In 2016, a high-ranking official in the Venezuelan regime sued the Wall Street Journal over a newspaper article linking him with drug trafficking. The defamation case was clearly frivolous, but its goal was to impose costs on (and intimidate) the Wall Street Journal over its reporting in Venezuela. The Chinese Communist Party has been much more open about their goals, declaring a “multidimensional legal war” against Chinese dissidents in the United States and even using proxy companies to file frivolous claims against political targets here.

In a University of Chicago Law Review article titled, Foreign Dictators in U.S. Court, I expose how foreign authoritarian governments are increasingly filing claims in U.S. courts against political dissidents and newspapers. The paper seeks to do three things:

First, the Article provides the first systematic assessment of foreign dictatorships in U.S. court. While much of the literature is siloed by substantive area of law—focusing on contexts like human rights or property expropriations—this Article treats dictators as a trans-substantive category of litigants, worthy of special analysis.

Second, the Article exposes how foreign dictators are increasingly taking advantage of U.S. courts and comity doctrines, especially as plaintiffs. In a misguided effort to promote harmonious foreign relations, courts have provided foreign dictators an array of protections and privileges that dictators are eagerly exploiting.

Finally, 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.

The main doctrinal issue at the heart of the article is the following: (1) when victims sue foreign dictatorships, they run headlong into a series of barriers—the “act of state” doctrine, the Foreign Sovereign Immunities Act, and common law immunities; but (2) when foreign dictatorships sue political opponents or newspapers, they have easy access to U.S. courts. This creates an asymmetry that helps foreign authoritarian regimes. As the Article describes it: “foreign dictators and their proxies can access our courts as plaintiffs to harass their opponents, but their regimes are, in turn, immune from lawsuits here.”

To be sure, as I acknowledge in the paper, this asymmetry applies to every foreign country and is not specific to any regime type. Nonetheless:

[T]he asymmetry has particularly worrisome consequences in dictator-related cases because foreign authoritarians go on the offense against democratic opponents, newspapers, and dissidents in the United States. Return to the example above: Venezuela can sue the Wall Street Journal for a legitimate article on the government’s narcotrafficking links. But U.S. journalists, non-governmental organizations, Venezuelan dissidents, or former Venezuelan citizens cannot easily sue the Venezuelan government in the United States because of sovereign or official immunity (as well as jurisdictional limits).

Take another example involving Russia. When the Democratic National Committee sued Russia over cyberattacks during the 2016 election, a district court dismissed the claim as barred under the FSIA. That may well be a legitimate application of sovereign immunity. The article acknowledges that, to be sure, the FSIA serves important purposes that are necessary in foreign relations. The problem, however, is that at the same time as Russia avoided undesirable litigation, it used proxy plaintiffs to file claims in U.S. courts against enemies of Vladimir Putin. Even if these claims are dismissed as frivolous, they still impose significant costs on defendants and intimidate opponents of a foreign dictator. This can even chill speech and dissent within the United States.

My paper criticizes this asymmetry as unnecessary and anachronistic. Precedents that force U.S. courts to offer free access to foreign regimes are outdated in a “world that is dealing with widespread democratic recession, and that is so globalized that foreign dictators can extend their tentacles into the United States.” Simply stated, U.S. courts should not serve the interests of foreign dictatorships if they can avoid it. And, as the article argues at length, they can avoid it because there is no obligation on U.S. courts—statutory, constitutional, or under international law—to provide doctrinal privileges and protections to foreign dictators.

Although the article seeks to convince U.S. courts that they can discriminate against foreign dictatorships, it later concludes that such an anti-dictatorship standard would be ill-advised for a few reasons. First is the administrability problem: there is simply no easy way for courts to distinguish among the word soup of names for these regimes, including competitive authoritarian, hybrid regimes, semidemocracy, transitioning democracy, illiberal democracy, and soft authoritarianism. Courts might even have difficulty determining whether a foreign dictator is a U.S. ally or rival. Second is a potential category error: dictatorships may not be the right group to target. The problem with dictatorships is that they challenge fundamental liberties and human rights. But democratic governments can do that, too. Moreover, judging all dictatorships for purposes of all claims would be substantively over inclusive in a variety of ways, excluding them from litigating legitimate breach of contract or tort cases.

Because of these difficulties, Part III of the Article takes a different approach, offering a set of changes to foreign relations doctrines that advantage foreign dictators. Advantage foreign dictatorships The four proposals are as follows:

To improve the dictators-as-plaintiffs side of the asymmetry, (1) the sovereign privilege of bringing suit should be subjected to the robust procedural protections of a new federal anti-SLAPP statute so that defendants can quickly move to dismiss political harassment claims filed by any sovereign—democracy or dictatorship—or its proxy. . . .

To improve the dictators-as-defendants side of the asymmetry, courts should (2) narrow the act of state doctrine; (3) limit the scope of foreign official immunity; and (4) interpret existing FSIA exceptions broadly, allowing more claims against foreign dictators.

As a whole, the paper begins a discussion about the broader phenomenon of transnational oppression and the projection of power by foreign dictatorships. After shielding our judicial system from frivolous claims, reformers should examine how foreign dictators take advantage of other U.S. institutions, including real estate markets, banks, social media, universities, and so on.

Photo credit: S. Baker © 2005 (CC BY 2.0)