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Executive overeach to provide immunity to Universal crimes questioned

[TamilNet, Sunday, 15 January 2012 11:09 No Comment]

Bruce Fein, former US Associate Deputy Attorney General Bruce Fein, attorney for the three Tamil plaintiffs who have charged Sri Lanka’s President Mahinda Rajapakse of war-crimes in the District Court of District of Columbia, in response to the "suggestion" of immunity for Rajapakse by the US Justice Department, told TamilNet, that he has asked to court to allow the plaintiffs to file a Memorandum in Opposition, and added "among other deficiencies in the US Government’s legal analysis, we underscored the counter-constitutional proposition asserted by the Executive Branch that it was crowned with judicial power to order the dismissal of lawsuits based on its understanding of the law which federal judges were precluded from second-guessing. Such a putative power in the Executive Branch would blatantly flout the separation of powers enshrined in the Constitution."

Full text of the statement of Bruce Fein, attorney for the plaintiffs, follows:

PDF: State Dept: Status Report on Immunity

PDF: State Dept: Suggestion of Immunity

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Bruce Fein, former US Associate Deputy Attorney General

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Harold Koh, Legal Advisor, Department of State

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District Court Judge Colleen Kollar-Kotelly

Last Friday, January 13, 2012, the Executive Branch filed a Suggestion of Immunity in the outstanding Torture Victims Protection Act (TVPA) lawsuit for extra-judicial killings initiated against Sri Lankan President Mahinda Rajapaksa in the United States District Court for the District of Columbia. The State Department and the Department of Justice outlandishly maintained that the foreign policy of the United States is entrusted solely to the President, without even a cameo appearance for Congress; that the Executive Branch is empowered to decide in lieu of federal courts whether suits under statutes enacted by Congress against sitting heads of state for universal crimes should be permitted; and, that the President had decided in the exercise of his plenary foreign policy prerogatives to direct the District Court to dismiss the TVPA suit for extra-judicial killings orchestrated by President Rajapaksa in violation of international law.

On the day the Suggestion of Immunity was filed, we filed a motion to permit plaintiffs to respond with a Memorandum in Opposition within 45 days.

Among other deficiencies in legal analysis, we underscored the counter-constitutional proposition asserted by the Executive Branch that it was crowned with judicial power to order the dismissal of lawsuits based on its understanding of the law which federal judges were precluded from second-guessing. Such a putative power in the Executive Branch would blatantly flout the separation of powers enshrined in the Constitution. The Suggestion of Immunity also wrongly ignored the congressional decision in the TVPA to expose “any individual” to a lawsuit for damages on account of complicity in extra-judicial killings irrespective of any office the culprit may be occupying. Congress is not required by the Constitution to be an echo chamber of the foreign policy of the President.

We are now awaiting decisions by the District Court in response to the Executive Branch’s Suggestion of Immunity and our motion to permit filing an opposition. In the meantime, we are preparing to amend our Complaint to add Defense Secretary Gotabaya Rajapaksa and former Army Commander Sarath Fonseka as co-defendants for their complicity in the extra-judicial killings of the victims whose legal representatives are the plaintiffs.

[Full Coverage]

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