DNC v. Wikileaks: Russia Asserts Immunity
Posted on November 13, 2018
In its lawsuit against Wikileaks, Russia, and others, the Democratic National Committee has effected service on Russia under 28 U.S.C. § 1608(a)(4), slowest and most solemn method of service in foreign sovereign cases, and the only one that is more or less guaranteed to work. By diplomatic note, Russia returned the documents that the United States embassy had sent to the Russian foreign ministry by diplomatic note.
The service itself is not legally interesting or exceptional, though I think it does tend to illustrate the lack of a strong reason to stretch the construction of other provisions of § 1608. More interesting is Russia’s assertion of immunity, which it filed, apparently with the help of an unnamed US-trained lawyer. In my prior post, I focused on the question whether the DNC could show that Russia’s acts were in or sufficiently connected to the United States to allow either the commercial activities exception or the noncommercial torts exception to FSIA immunity to apply. Russia has raised an additional major issue, which is the supposedly military nature of its activities. Indeed, the DNC made this argument easier for Russia by describing the military connections of the attackers. A military act is, of course, not a commercial act. The question whether it may be a noncommercial tort seems more complicated to me. Suppose a Russian solider parachutes in to Boston, under orders, and punches me in the face. That’s a battery, but if the solider was acting under lawful orders, then he had a privilege to commit the battery and is not liable in tort. So the case ultimately may present questions like: if the Russian attack was a military activity, was it a lawful military activity? How should we characterize state-sponsored cyber-attacks anyway? I will keep track of this case for you.