The case of the day is Turkiye Halk Bankasi AS v. United States (S. Ct. 2023). I wrote about the case in the District Court. It presents a simple legal question: does the Foreign Sovereign Immunities Act govern the question whether a foreign state, or the instrumentality of a foreign state, is immune from jurisdiction in a criminal case?1
The trouble stems from the literal wording of the statute. 28 U.S.C. § 1604 reads:
Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.
To a certain kind of reader, “shall be immune from the jurisdiction of the courts of the United States” is perfectly plain and must mean what it literally says, period. But that is not a sensible way to read the statute, as the majority of the Court, in an opinion by Justice Kavanaugh, recognized. The statute as a whole, including the grant of subject-matter jurisdiction in § 1330 in cases where there is no immunity, plainly is concerned with civil actions. You have to read the text in its context.
The Court recognized but discounted a few practical reasons against the practical reading of the statute. Of these, the most interesting is the concern that US states could initiate criminal prosecutions of foreign states. It seems that there is a gap in the removal statute, 28 U.S.C. § 1441(d), that probably now needs to be remedied: the statute permits removal only of civil actions against foreign states. But the Court held, correctly, that you have to take jurisdictional statutes as Congress has written them. Moreover, the Court questioned the premise of the concern. Maybe the United States could submit a suggestion of immunity in state courts in appropriate cases. Maybe foreign law would preempt state prosecutions. In any event, maybe the Supreme Court would have jurisdiction to review criminal judgments of state courts in such cases.
Justice Gorsuch, joined by Justice Alito, dissented. He took the view I pooh-poohed above: “the text is the text.” He also sought to cast doubt on the view that the FSIA was addressed only to civil cases, though in my mind not persuasively.
I will not be surprised if the same state governments that have, for example, brought politically relevant civil actions against foreign states, for example, actions against China on account of the COVID pandemic, now decide to bring criminal cases, too. That will likely force the federal government’s hand and lead to some mechanism—whether an amendment to the removal statute or a rule of preemption—to prevent bad foreign policy outcomes.
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