William S. Dodge and Ingrid Wuerth have published a post at Just Security on United States v. Assa Co., a Second Circuit FSIA case I noted recently. Assa is the case holding that the FSIA does not forbid a court from exercising jurisdiction in rem over property of a foreign sovereign in a civil forfeiture case.
Dodge and Wuerth made the same point I made about the possible inconsistency of the decision with customary international law. But they also make a very interesting point about the FSIA itself. They argue that the decision is inconsistent with the statute, because the statute does not just provide a shield from jurisdiction, but also from attachment and execution. True, but the Second Circuit held that § 1609, the statute on attachment and execution, applied to quasi in rem cases, not to true in rem proceedings. There is some support for this in the legislative history, but Dodge and Wuerth point out that § 1610(d) of the statute, which provides that property may be subject to a prejudgment attachment if it is for the purpose of security rather than for the purpose of obtaining jurisdiction, deals with the issue.
I’m not sure what I think about the issue, but I commend the article to you—it’s very well-done.