Case of the Day: Doğan v. Barak
Posted on October 20, 2016
The case of the day is Doğan v. Barak (C.D. Cal. 2016). This is another case in the “Gaza flotilla lawfare” genre. I previously wrote about Schermerhorn v. Israel, where a motion to dismiss is yet to be decided. The Schermerhorn case is a FSIA case, because the defendant is Israel itself. In today’s case, the plaintiffs, Ahmet and Himet Doğan, both Turkish nationals, were the parents of Furkan Doğan, a US citizen who took part in the Gaza flotilla’s attempt to run the blockade of Gaza and who was killed in the fighting that occurred when the IDF boarded the flotilla vessels after they refused to turn back. They sued Ehud Barak, then Israel’s Minister of Defense, under the Alien Tort Statute, the Torture Victim Protection Act, and the Anti-Terrorism Act. Barak moved to dismiss, supported by the United States, which filed a suggestion of immunity.
The court began by deciding that the question of foreign official immunity was a question of subject-matter jurisdiction to be decided under FRCP 12(b)(1) rather than a merits question to be decided under FRCP 12(b)(6). This question has not yet been addressed by the Ninth Circuit. As a preliminary matter, the court also refused to consider expert legal opinions offered by Dean Chemerinsky (on the political question doctrine) and Professor John T. Chalcraft (on the “structure of governance in the United States”), on the grounds that expert testimony on the law is inadmissible. Dr. Chalcraft’s opinion also purported to describe what happened during the raid and was excluded as hearsay.
On the merits, the court easily held the complaint should be dismissed. Under the doctrine of foreign official immunity, if the State Department makes a suggestion of immunity, the court will defer to the executive and dismiss the case, because “of the Executive’s dominant role in the area of foreign policy, and the concomitant need to avoid embarrassing or antagonizing the Executive in its conduct of foreign affairs.” The judge rejected the plaintiffs’ separation of powers argument, noting that the doctrine of deferring to the Executive was not constitutionally mandated but voluntarily adopted by the Judiciary for reasons of comity and logic. More interestingly, the plaintiffs argued that the court should not defer to the Executive because Barak was a former Israeli government minister, asserting that the doctrine of deference to the Executive stemmed from the Reception Clause (giving the President the power to “receive Ambassadors and other public Ministers”). The judge rejected the argument that the doctrine of deference stemmed from that clause. Finally, the court rejected the notion that there should be an exception to the rule of deference for alleged violations of jus cogens norms. For one thing, the Executive expressly rejects the notion that there is such an exception. For another, if there were such an exception, then the rule of immunity from suit would be vitiated. Last, the judge rejected the argument that the TVPA abrogated the rule of foreign official immunity.
The decision seems clearly correct. The arguments for ignoring the ordinary rule of deference to the Executive in this context were not strong.
My own view of the merits is that, assuming the legality of the blockade (per the Report of the UN Secretary General’s Panel of Inquiry), it’s difficult to see how Doğan’s death, in the midst of armed resistance to Israel’s boarding of the vessels in order to enforce its blockade, could count as torture or terrorism, or a serious violation of international law, though the proportionality of the use of force could be questioned. The flotilla was meant to provoke, and the provacateurs got what they wanted, albeit with an unfortunate loss of life. Israel has learned the lesson of the first flotilla raid: just recently it was able to turn away another group of provocateurs without any violence, though in the latest incident the blockade runners apparently didn’t offer any violence, as the blockade runners in the earlier incident did.