The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiffs seek to compel the testimony of a third-party, the former President of Colombia Alvaro Uribe ("respondent"), in connection with pending litigation in the United States District Court for the Northern District of Alabama. See Giraldo v. Drummond Co. Inc., 7:09-cv-1041 (N.D. Al.). At this Court's request, the United States has submitted a Statement of Interest in this matter and suggests that respondent is immune from testifying to the extent that plaintiffs "seek information (i) relating to acts taken in his official capacity as a government official; or (ii) obtained in his official capacity as a government official." United States' Statement of Interest ("SOI") [Docket Entry 13] at 1. Plaintiffs primarily argue that they can compel respondent's testimony because they only seek information related to illegal actions, and illegal actions are by definition not official actions. For the reasons set forth below, this Court will deny plaintiffs' motion to compel respondent's testimony.
"Plaintiffs are all lawful legal representatives for and . . . beneficiaries of the 113 decedents . . . who were [allegedly] executed by the Juan Andres Alvarez Front of the Northern Block of the United Self Defense Forces of Colombia ("AUC")." Second Am. Compl. (N.D. Al. No 7:09-cv-1041) at 1-2. In the underlying suit, plaintiffs "bring claims for war crimes, extra-judicial killings and crimes against humanity under the Alien Tort Statute ("ATS") and for extra-judicial killing under the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350," against Drummond Company, Inc., one of its wholly owned subsidiaries, and three of its employees. Id. at 2. In this Court, plaintiffs seek to "compel non-party [respondent] to appear for a deposition." Pls.' Mot. to Compel [Docket Entry 1] at 1.
Specifically, plaintiffs seek to depose former President Uribe regarding his knowledge of and relationship with the AUC and Drummond. Pls.' Resp. to the SOI ("Pls.' Resp.") [Docket Entry 16] at 6. At all relevant times, however, respondent was serving as a government official, either as President of Colombia or as Governor of Antioquia. See id. Primarily, plaintiffs seek to depose him regarding his actions during his presidency, including his alleged "illegal collaboration with and support of the AUC"; "cooperation with illegal drug smuggling"; "use of the Columbian military to assist the AUC"; "targeting [of] some of [p]laintiffs' decedents for execution"; and "acceptance of payments from Drummond in exchange for illegal services performed by the Colombian military." Id. Plaintiffs also seek to depose respondent regarding his role, while governor of Antioquia, "in helping to start the [AUC]." Id.; Pls.' Mot. to Compel. Ex. H, at 3.
Following respondent's refusal to appear at a scheduled deposition, plaintiffs filed a motion with this Court to compel his testimony. The Court in turn requested a Statement of Interest from the United States. The United States "suggests that former President Uribe enjoys residual immunity from this Court's jurisdiction insofar as Plaintiffs seek information (i) relating to acts taken in his official capacity as a government official; or (ii) obtained in his official capacity as a government official." SOI at 1. Although plaintiffs do not contest that this Court should follow the United States' suggestion of immunity, they argue that the information they seek is consistent with the government's suggestion because only lawful acts are official acts, and they only seek testimony related to respondent's "illegal acts," which "are not within official immunity." Pls.' Resp. 1.
The Supreme Court has recently explained that foreign official immunity is governed by common law. See Samantar v. Yousuf, 130 S. Ct. 2278 (2010). According to the common law of foreign official immunity, immunity is determined through "a two-step procedure." Id. at 2284. The official can "request a suggestion of immunity from the State Department." Id. (internal quotation marks omitted). If the State Department grants the request, the "district court surrenders its jurisdiction." Id. If, however, the State Department takes no action, "a district court ha[s] authority to decide for itself whether all the requisites for such immunity exist." Id. (internal quotation marks omitted).
In this case, the State Department has granted respondent's request for a suggestion of immunity and suggests that former President Uribe enjoys residual immunity as to information relating to acts taken or obtained in his official capacity as a government official. SOI at 1. Plaintiffs do not take issue with this standard for determining respondent's immunity. Rather, they contend that they seek "to depose [respondent] only with respect to events that occurred before he was President or that constitute illegal acts that are not within his official immunity." Pls.' Resp. 1. But although plaintiffs seek information "with respect to events that occurred before [respondent] was President," that information still relates to information he received and acts he took in his official capacity as a government official-here, the Governor of Antioquia. Id. Moreover, mere allegations of illegality do not serve to render an action unofficial for purposes of foreign official immunity.
The only issue that plaintiffs specifically claim is unrelated to respondent's presidency is "his role, prior to becoming President, in helping to start the [AUC]." Pls.' Resp. 6. Elsewhere in their submissions to this Court, however, plaintiffs reveal that any alleged conduct related to "the establishment [of the AUC] in Antioquia" occurred during respondent's time "[a]s governor."
Pls.' Mot. to Compel. Ex. H, at 3. And, as with all other suggested deposition topics, plaintiffs never claim that such information is unrelated to respondent's service as a government official. Indeed, plaintiffs readily admit that they only seek to depose respondent about "the relationship between him, his government, and the AUC" because their "claims under the TVPA" require a showing that "the AUC was acting under color of authority of the Colombian government." Pls.' Resp. 9 & n.4.
Plaintiffs further contend that "illegal acts . . . are not within official immunity." Pls.' Resp. 1. But such a rule would eviscerate the protection of foreign official immunity and would contravene federal law on foreign official immunity. To be clear, plaintiffs do not argue that respondent engaged in garden-variety "crimes . . . in violation of his position and not in pursuance of it." Jimenez v. Aristeguieta, 311 F.2d 547, 558 (5th Cir. 1962). Rather, they assert that former President Uribe committed "acts that violate international jus cogens human rights norms."*fn1 Pls.' Reply in Support of Mot. to Compel [Docket Entry 8] at 18. Again, plaintiffs seek to depose respondent in order to show that "the AUC was acting under color of authority of the Colombian government." Pls.' Resp. 9, n.4.
The D.C. Circuit has rejected the argument that jus cogens violations defeat foreign official immunity in the context of the Foreign Sovereign Immunities Act ("FSIA"). Prior to the Supreme Court's recent ruling that foreign official sovereign immunity is governed by the common law, many courts, including the D.C. Circuit, had found that foreign official immunity was governed by the FSIA. In Belhas v. Ya'alon, the D.C. Circuit found that the "FSIA contains no unenumerated exception [to foreign official immunity] for violations of jus cogens norms." 515 F.3d 1279, 1287 (D.C. Cir. 2008). Because the court decided the issue under the FSIA, that holding does not squarely govern the issue here regarding the effect of a jus cogens violation on foreign official immunity for purposes of the common law. But as the Supreme Court noted in Samantar, rules that appellate courts developed for foreign official immunity under the FSIA "may be correct as a matter of common-law principles." Samantar, 130 S.Ct. at 2291 n.17. And the D.C. Circuit's reasoning in Belhas is instructive. The court explained that, without "something more nearly express" from Congress, it would not adopt a rule that would require federal courts to "assume jurisdiction over the countless human rights cases that might well be brought by the victims of all the ruthless military juntas, presidents-for-life, and murderous dictators of the world, from Idi Amin to Mao Zedong." 515 F.3d at 1287. As the court observed, "[s]uch an expansive reading . . . would likely place an enormous strain not only upon our courts but, more to the immediate point, upon our country's diplomatic relations with any number of foreign nations." Id. (quoting Princz v. Fed. Repub. of Germany, 26 F.3d 1166, 1174 n.1 (D.C. Cir. 1994)).
Not only would such a rule place a strain upon our courts and our diplomatic relations, but it would also eviscerate any protection that foreign official immunity affords. As Judge Williams explains in his concurrence in Belhas, a jus cogens exception "merges the merits of the underlying claim with the issue of immunity." 515 F.3d at 1292-93. As soon as a party alleged a violation of a jus cogens norm, a court would have to determine whether such a norm was indeed violated in order to determine immunity- i.e., the merits would be reached. When the foreign official is the defendant, there will effectively be no immunity- a civil action by definition challenges the legality of the official's acts. But as the D.C. Circuit has explained, "sovereign immunity is an immunity from trial and the attendant burdens of litigation, and not just a defense to liability on the merits." Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990) (citation omitted). Indeed, both the Second and Seventh circuits have found "[t]he Executive Branch's determination that a foreign leader should be immune from suit even where the leader is accused of acts that violate jus cogens norms is established by a suggestion of immunity." Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. 2009) (citing Ye v. Zemin, 383 F.3d ...