Suggested Student Note Topic: How to Promote Accountability for Human Rights Violations By Foreign Government Officials Without Encouraging Frivolous Lawsuits Against U.S. Government Officials?

Human rights advocates often express disappointment (if not anger) that the U.S. Government (and the Obama Administration in particular) is not more supportive of lawsuits in U.S. courts against foreign government officials and military leaders who commit human rights violations in their own countries.  These advocates have been especially frustrated by the State Department’s practice, under both Republican and Democratic Administrations, of asserting immunity -- whether head-of-state immunity, official acts immunity, or diplomatic immunity -- in ATS, TVPA, and other suits against foreign government officials in the U.S.  Human rights litigators have urged both the Executive branch and the courts to recognize a new exception from long-accepted international norms of immunity in cases involving allegations of  jus cogens violations, such as extrajudicial killings, torture, and other serious offenses. From a purely human rights perspective, creating such a new exception would make policy sense.  How can such heinous crimes be considered official acts?  But from the perspective of U.S. Government lawyers, the issues are more complicated.  These officials strongly share the goal of human rights advocates to promote accountability for human rights violations around the world, but they must also respect existing international law rules, avoid unnecessary diplomatic tensions, and serve as the lawyers for the President, the Secretary of Defense, the Secretary of State, and senior military and intelligence officials.  Unfortunately, senior U.S. civilian and military officials are not infrequently accused of human rights violations and even war crimes by critics in other countries who disagree with U.S. policies.  Many officials in the Obama Administration came into office believing that only Bush Administration officials would be accused of such offenses, only to find President Obama and senior Administration officials condemned for war crimes over drone strikes (see, e.g., the “Obama Docket” compiled against President Obama in South Africa). It is especially important for law students who are, very appropriately, working for human rights clinics in law schools to understand the different factors that must be taken into account by the U.S. Government lawyer, especially since many of these students, one hopes, will one day serve in government.  How best to balance these competing interests is the subject of considerable inter-agency discussion in Administrations of both parties. Hence, my suggested note topic.  Assume that you are the Counsel to the President, the Attorney General, or the General Counsel of the Department of Defense or the CIA, or the Legal Adviser of the State Department.  As a policy matter, you want the U.S. Government to continue to promote human rights around the world and to encourage accountability for human rights violations.  But, as a lawyer, you also understand that current international law recognizes immunity for sitting heads of state and government, and for present and former government officials for their official acts.  And you know that your U.S. Government clients would not want to be sued or prosecuted for U.S. Government policies (e.g. drone strikes that critics consider extrajudicial killings).  Should you nonetheless seek to encourage a new jus cogens exception to immunity?  Do you advise the President and the Secretaries of State and Defense that they shouldn’t object if other countries do not recognize their immunities (or create new exceptions to them) because even if their immunities are lifted at the beginning of a case, at the end of the litigation the U.S. will be able to defend them successfully (even if they also have to retain private counsel)?  What legal policy should the U.S. adopt that both encourages accountability for serious human rights abuses by foreign government officials and that continues to protect U.S. Government officials from meritless suits and prosecutions?