Fein: U.S.'s immunity determinations flout due process

[TamilNet, Saturday, 08 December 2012, 14:43 GMT]
In the final legal brief filed with the United States Court of Appeals in the case against Sri Lanka's President Mahinda Rajapakse for civil damages on war-crimes charges, appellants, Dr Manoharan et al.'s attorney Bruce Fein asserts that "[n]either the Constitution, nor the Torture Victim Protection Act (“TVPA”), nor customary international law (“CIL”) crowns the Executive with exclusive authority to determine whether a sitting head of state is immune from a TVPA suit founded on the grisly and universally abhorred crimes of torture or extrajudicial killing under color of foreign law," and argues that the Court should reject the U.S. State Department's contention that "when the Executive speaks on immunity, the judiciary is ousted of jurisdiction to interpret the law, [and that the] Adjudication of the case moves from Article III courts to the Article II President."

No United States Supreme Court decision supports such a startling usurpation by the Executive of the customary duty of the judiciary to interpret the law under the Constitution’s separation of powers, the brief said, pointing to Chief Justice John Marshall's forceful statement in Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say what the law is."

Rajapakse attorneys legal response, as happened in the proceedings in the lower court, depended entirely on the Department of Justice's reassertion of the "suggestion of immunity," to save Rajpakse from criminal charges resulting in civil damages.

Dr Manoharan's Reply brief provides supporting arguments for the appellant's position that militates against providing immunity to Rajpakse from the alleged universional crimes. The brief focuses on the following five legal issues:

1. Neither the Constitution, nor the Torture Victim Protection Act (“TVPA”), nor customary international law (“CIL”) crowns the Executive with exclusive authority to determine whether a sitting head of state is immune from a TVPA suit founded on the grisly and universally abhorred crimes of torture or extrajudicial killing under color of foreign law.
2. The TVPA Creates a Cause of Action Against Sitting Heads of State for the Universal Crimes of Torture or Extrajudicial Killing Under Color of Foreign Law.
3. Supreme Court foreign sovereign immunity decisions concerning in rem actions against foreign government vessels have been misinterpreted and misapplied to confer sitting head of state immunity for unspeakable extrajudicial killings in violation of CIL.
4. CIL Rejects the Executive’s Optional Sitting Head of State Immunity Power for TVPA Suits Resting on the Universal Crimes of Torture or Extrajudicial Killing.
5. Unconstitutional Takings. The Supreme Court indicated in Dames & Moore v. Regan, 453 U.S. 654 (1981), that an executive order of the President that extinguished pending legal claims in federal court required payment of just compensation under the Takings Clause of the Fifth Amendment.

Attorney Adam Butschek and Mark Potkewitz assisted Bruce Fein acting for the Plaintiffs-Appellants. Tamils Against Genocide [TAG], a US-based activist organization which seeks legal redress for Tamil victims of Sri Lanka's civil war, serves as power of attorney for the plaintiffs and is the sponsor of the litigation.

The complaint was filed first in 2011 at the District Court for this case alleged 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: