FOR THE SOUTHERN DISTRICT OF NEW YORK
V.Z. LAWTON, et al.,
Plaintiffs, Misc. Case No. M8-85
v. [Case No. 02-CV-474 (RBW)
Pending in U.S. District Court
THE REPUBLIC OF IRAQ, for the District of Columbia]
Defendant.
____________________________________
Plaintiffs, by counsel and pursuant to Fed. R. Civ. P. 45(e), respectfully submit this supplemental memorandum in support of their request that the Court issue an order to show cause why Mohammed al-Douri (“al-Douri”) should not be held in contempt for failing to comply with a subpoena duces tecum duly served on him by Plaintiffs. As grounds therefore, Plaintiffs state as follows:
Diplomatic Immunity Does Not Shield Al-Douri.
As this Court noted in its Order of April 7, 2003, a question exists as to whether al-Douri is shielded from discovery by diplomatic immunity. As set forth by Plaintiffs in their initial memorandum, because Iraq is a terrorist state, al-Douri cannot take advantage of these protections.
Plaintiffs’ action against Iraq is brought under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602-1611 et seq. (“FSIA”), as amended. Under the FSIA, foreign states and their representatives are immune from suit unless the action falls within one of the specified exceptions in the statute. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983); 28 U.S.C. § 1330. At the time of the FSIA’s adoption, these exceptions included actions involving (1) “commercial activities carried on in the United States” and (2) property in the U.S. “acquired by succession or gift . . . .” 28 U.S.C. § 1605(a)(2)-(4).
The FSIA was amended in 1996 by the Anti-Terrorism and Effective Death Penalty Act (“Anti-Terrorism Act”), creating another exception to state immunity. The Anti-Terrorism Act lifted the immunity of terrorist states and their representatives.[1] Pub L. No. 104-132, 110 Stat. 1241 (codified at 28 U.S.C. § 1605). As a result, United States courts may exercise subject matter jurisdiction under the Anti-Terrorism Act when a U.S. national has been harmed by an act perpetrated either directly or indirectly by a foreign state. Id. This right is conditioned on whether the foreign state has been designated by the executive branch as a state-sponsor of terrorism. Iraq has been so designated. 22 C.F.R. §126.1(d).
This immunity afforded under the FSIA (and the exceptions) closely track the immunity established for foreign diplomats under the Vienna Convention, ratified in 1972:
‘1. A diplomatic agent . . . shall enjoy immunity from
[the receiving state's] civil and administrative jurisdiction, except in the
case of: . . . (b) an action relating to succession in which the diplomatic
agent is involved as executor, administrator, heir or legatee as a private
person and not on behalf of the sending state; (c) an action relating to any
professional or commercial activity exercised by the diplomatic agent in the
receiving state outside his official functions.’ Moreover, paragraph 2 of
Article 31 states that ‘[a] diplomatic agent is not obliged to give evidence as
a witness.’
In re Application of Alvaro Noboa, Misc. Nos. M18-302, M19-111, 1995 U.S. Dist. LEXIS 14402, *8 (S.D.N.Y. 1995) (Martin, J.) (“Noboa”).
In Noboa, this Court considered immunity from discovery of a defendant claiming diplomatic immunity. The case involved commercial and estate matters of the kind that were exempted from diplomatic immunity. Id. at 9. This Court reasoned that even though the “language of paragraph 2 [of Article 31] appears to be absolute and to admit no exceptions,” a defendant lacking immunity can be the subject of discovery.
[I]f a defendant is not entitled to diplomatic immunity from jurisdiction with respect to a particular type of case, that defendant cannot logically be exempted from the obligation to testify in that same type of case involving his own interests as a private person. The litigation at issue here is of precisely the type that is exempted from diplomatic immunity from jurisdiction by subparagraphs 1(b) and (c) of Article 31 of the Vienna Convention.
Noboa, *9 (citing Aidi
v. Yaron, 672 F. Supp. 516,
518 (D.D.C. 1987) (“if [a defendant] is entitled to diplomatic immunity, he is
likewise shielded from service of process”)).
The FSIA, amended by the Anti-Terrorism Act in 1996, now permits suits against foreign terrorist states and their representatives. While, at this point, Plaintiffs have not named al-Douri as a defendant, there is no bar under the FSIA to their doing so. See note 1, supra. Since al-Douri is not immune to suit, logically, as in Noboa, he should not be immune to discovery. Because Congress has determined that immunity is not to be afforded to terrorist states and their representatives, diplomatic immunity no longer shields al-Douri. Accordingly, al-Douri, who possesses unique information relevant to this case, is a proper subject of discovery. Under the Federal Rules of Civil Procedure and American jurisprudence, Plaintiffs have a right to al-Douri’s evidence.
Moreover, al-Douri has just conceded that the U.S./U.K./Iraqi war is now over, and that his government, notwithstanding its terrorist status, is no longer in existence. Therefore, he is longer a bona fide ambassador from Iraq. (See Attachment 1).
Conclusion
For the reasons above and in Plaintiffs’ initial brief, Plaintiffs respectfully request that the Court issue an order to show cause why al-Douri should not be held in contempt for failing to comply with Plaintiffs’ duly served subpoena duces tecum.
Respectfully submitted,
________________________
Michael G. Dowd
Attorney at Law (Bar No. 8317)
420 Fifth Avenue, 25th Floor
New
York, New York 10018-2729 Telephone: 212-703-5450
Fax: 212-703-5514
Larry Klayman
James F. Peterson
Judicial Watch, Inc.
Suite 725
501 School Street, S.W.
Washington, D.C. 20024
(202) 646-5172
Attorneys for Plaintiffs
FOR THE SOUTHERN DISTRICT OF NEW YORK
V.Z. LAWTON, et al.,
Plaintiffs, Misc. Case No. M8-85
v. [Case No. 02-CV-474 (RBW)
Pending in U.S. District Court
THE REPUBLIC OF IRAQ, for the District of Columbia]
Defendant.
____________________________________
ORDER
AND NOW, this ___ day of _________________, 2003, upon consideration of Plaintiffs’ Motion for Order to Show Cause Re: Subpoena to Mohammed Al-Douri, it is hereby ORDERED that the Motion is GRANTED.
BY THE COURT:
___________________________
[1] While the
FSIA does not directly apply or prohibit liability to defendants who are
natural persons, courts have construed
the section broadly, thus applying the FSIA to individuals for acts performed
in their official capacity on behalf of a foreign state or its agency or
instrumentality. See, e.g., El-Fadl
v. Central Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996), citing Chuidian
v. Philippine Nat'l Bank, 19 F.2d 1095, 1099-1103 (9th Cir. 1990); In re
Estate of Ferdinand E. Marcos Human Rights Litigation, 978 F.2d 493, 496-97
(9th Cir. 1992); Kline v. Kaneko, 685 F. Supp. 386 (S.D.N.Y. 1988); Rios
v. Marshall, 530 F. Supp. 351, 371-72 (S.D.N.Y. 1981), cited in Flatow
v. Islamic Republic of Iran, 999 F.Supp. 1, 11 n.3. (D.C. 1998).