Fein: TVPA's plain language interpretation negates Rajapakse immunity

[TamilNet, Sunday, 05 February 2012, 00:52 GMT]
In a forceful rebuttal to the U.S. State Department's suggestion of immunity to Sri Lanka President Rajpakse in the war-crimes charges against him in the case filed in District Court in Washington by three Tamil plaintiffs, Bruce Fein, the attorney for the plaintiffs, said, 'the sitting head of state immunity issue pivots solely on an interpretation of the words “an individual” in the Torture Victim Protection Act (TVPA)," "the plain language of the statute makes no exceptions irrespective of the office an individual might occupy or the circumstances of the crimes universally abhorred," but "[t]he Executive Branch insolently maintains that this Court must obey its directive to dismiss this TVPA case that rests upon universally repugnant crimes in violation of the law of nations," and " [t]o bow to that command would be to permit usurpation of the judicial power by the Executive."

The rebuttal argument was filed with the Court on the 3rd February, and the U.S. State Department is given another 10 days to file a reply to the response.

Mr Fein told TamilNet that the U.S. Justice Department which simply told the judge that suggestion of Immunity is dispositive, ignoring the textual contents of the TVPA, will unlikely put forward any "new" reasoning. "If they do, then he will request the Judge for an opportunity for a "Sur Reply" to respond to any new arguments that Justice Dept. might put forward in the expected 13th February submission," Fein said.

Limits of Executive Power
Fein who routinely gets invited to testify in constitutional questions, drew on his expertise as a Constitutional lawyer to analyze the present case in the context of Justice Robert Jackson view of Executive power in foreign relations in a famous court opinion.mJackson elborated a tripartite analytical scheme for evaluating the President’s claim of constitutional authority in the realm of foreign affairs:
  1. “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” It is in these circumstances that he can be said to personify federal sovereignty, and his acts would be entitled to the widest latitude of judicial interpretation.
  2. “When the President acts in absence of either a congressional grant or denial authority, he can only rely upon his own independent powers.”
  3. “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by,disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
Fein argues that the Plaintiffs’ TVPA case falls into Justice Jackson’s category three, where presidential authority is at its nadir.

Fein adds: "Congress declared “an individual” without exception subject to a civil damages remedy for perpetrating despicable crimes in violation of the law of nations. The Executive Branch butts heads with the congressional enactment in this case by demanding an exception for the notorious sitting head of state of Sri Lanka, whose heinous actions epitomize what Congress aimed to deter by enacting the TVPA.

"Unless the TVPA is unconstitutional—which the Executive Branch does not argue—the will of Congress must prevail and the Suggestion of Immunity must be rejected," Fein argues.

Fein concludes his argument asserting that "any system of justice that bestowed immunity on criminally culpable sitting heads of state for the damages inflicted by their crimes of torture or extrajudicial killing in violation of the law of nations would deserve the odium of all civilized peoples," and adding that, "it strains credulity to believe Congress intended to visit such odium on the United States in enacting the TVPA under the banner of human rights."


External Links:
LS: Plaintiffs file opposition to suggestion of immunity in war crimes case against Rajapakse


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