Letter from Legal Adviser Bellinger Letter
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Attachment 1 TME LEGAL ADVISER DCPA,~TMENT OF" STATE July 24:2006 Hon. Peter D. Keisler Assistant Attorney General Civil Division United States Departmentof Justice Washington, D.C. 20530 Re: Li g/eixttm, et aL v. I3o )filaii No. ! :04CV00649(DDC) DearMr. Keisler: By letter dated February24, 2006, U.8. District Court Judge Richard J. Leon solicited the Departmentof State’s views in connectionwith the above-referencedsuit, whichwas broughtunder tlle Alien "l’or~ Stava*.e (ATS)and the Torture VictimProtection Act (TVPA).Specifically, Judge Leon asked for the Departmentof State position on: (1) whateffect, if zany, adjudicationof tiffs case will haveon the foreign policy of the United States; (2 the applicability of the act of state doctrine; and(3) if the court finds that case is j asticiable, the application of the ForeignSovereign Irranunities Act (FSIA). Judge Leonasked that we respondeither directly or by statement of interest pursuant to 28 U.S.C. §517. A copy of his letter is enclosed (Enclosure A). Wehere provide our viewson the foreign policy consequencesof this litigation and request that this letter be submittedto the court as an attachmentto a Suggestionof Irmmunity_and Statementof Interest addressingthe legal issues. The plaintiffs allege that Clxincs=Minister of CommerceBo Xilai planned and carried out serious humanrights abuses agaEnst practitioners oldie Falun Gongspiritual movement(FLG) in Liaoning Province. All plaintiff:s appear to be Chinese nationals whoreside in r.he People’sRepublic of Chinaor in countries other than the UnitedStates. The~.assert that Minister Bo, acr.ing "undercolor of law" in his formerposition as Governorof Liaoning,is responsible for these violations. All of the acts alleged inthe complaint are said to have occurred within China. at the dire~ion of the Chinese goverranent, against Chinese nationals. Weare unawareof any connection betweenthe underlyingsuit and the UnitedStates. JuI-Z4-OE06:tgpm From-Department of State L/DL & L~ ZOZT367541 T-191P 005 F-557 As Minister of Commerce,Bo Xilai is nowresponsible for Ckina’s commerceand international trade, including international wadepolicy and ncgotiatiun. The attempt to serve process on Minister Bo was made at a time whenhe was Minister of Commerce(no longer Governorof LiaoningProvince) and while he was on official diplomatic travel to the United States as an active memberof the delegation of Chinese Vice Premier WuYi to the U.S.-Ckina Joint Commissionon Commerceand Trade (JCCT)- a bilateral, governmentalconsultative forumthat addresses significant bilateral trade concerns and promotes commercial opportunities between the United States and China. We understand front file Governmentof China that the su.rnxnonsand complaint were physically thrust upon Minister Bo while he was attending a U.S. - China Business Council reception in honor of Vice Premier WuYi and her delegation (see Enclosure B). Withoutreference to the specific allegations in this suit, the Deparlxnentof State has informedCNna, both publicly and privately, olios strong opposition to violations of the basic humanrights of FLGpractitioners in China. Wehave repeatedly called on Chinato respect the rights of all its citizens, including FLOadherents. The Department of State’s critical viewsof China’streatment of the t:LO practitioners are a matter of public record. See, e.g., Departmentof State AnnualHuman Rights Report for 2005. w-ww.state.eov/~drl/rls/hrrpt/2005/61065.htm(especially pages 22-23). Althoughwe oppose the Chinese government’santi-FLO policies, we believe that rids suit should be dismissed.For U.S. courts to exercise jurisdiction over Minister Bo in the circumstancesof this case wouldbe inconsistemwittl international law and expectationsrelating to the immunitiesof sta~es and their official representatives and wouldseriously interfere v, ith the UnitedStates’ ability to conductforeign relations. Moreover,it will undercut the U.S. government’sefforts to engage China on human ri~hts issues, incIuding its treatment of the FLG.It could also adversely affect U.S. engagementwith China on a broad range of other issues, including counter-terrorism, law enforcement, economicsand trade, traf~c~g in persons, adoption, narcotics suppression, and nuclear nonproliferation. Indeed, the instant lawsuit has akeadyhad a chilling effect on U.S.-Chinarelations; I enclose a series of diplomaticnotes and letters that China has sent the United States expressing its deep concernabout it 0~nclosaresB - D). 1. The Departmentof State regards the April 2004 visit of Minister Bo to have been a special diplomatic mission and considers Minister Bo to have been an official diplomatic envoywhile present in the United Srate~ on that special mission. Consistent with the rules of custornary international law recognizedand applied in the UnitedStates and in furtheranceof the President’s authority underArticle II of the Constitution, it is appropriate to recognizethe immunityof a high-level ofiicial on a special diplomatic missionfrom the jurisdiction of UnitedStates federal and state courts in a case such as rahis. In light of these considerations, the Departmentrecognizes and allows the immunity of Minister Bo Xilai fromthe jurisdiction of the UnitedStates District Court, including fromservice of process, duringthe period of his visit to the UnitedStates. The practical wisdomunderlying this immuniwis apparent. Diplomatic relations often turn on the ability of officials fromdifferent states to communicateand meetwith each other without harassmentor distraction. Indeed, the need for unhampered communicationbetween governments is often most critical whenthe disagreements beaveenthem are the greatest. If suits of this kind can be commencedin U.S. courts against a senior foreign governmentofficial present in the UnitedStates for government: to-governmentbusiness, the President will be deprived of an essential foreign policy tool and our ability to pursue our foreign policy objectives effectively will be slgnificantly undermined.The United States must be able to host foreign officials without the prospect that they maybe served with process in a civil suit. Permitting suits like this woulaalso be inconsistent with U.S. views on the assertion of jurisdiction over U.S. governmentofficials by foreign govemmemsand courts. The UnitedStates has madeclear m foreign governmentsthat it objects to service of process on senior U.S. officials traveling overseas; wehave insisted, for example,that requests for documentsand informationabout official acts of U.S. representatives for use in criminal investigations should be madegovernment-to-government through diplomatic or law enforcementchannels, not by attempting to serve or obtain jurisdiction over the officials themselves,particularly whenthey are on temporaryvisits. Permitting this suit against Minister Bo wouldbe inconsistent with our representations to other governments,and could exposeU.S. officials visiting other countries to suits arising from their performanceof official U.S. governmentfunctions. 2. The attemptedassertion of jurisdiction over Minister Bo while he wasin the UnitedStates on official, bilateral busit~essat the invitation of the UnitedStates has had immediateadverse foreign policy consequencesand has directly interfered with the President’s authority, to conductforeign relations, includinghis authority to receive "Ambassadorsand other public ministers" (U.S. Const. Ar~. II, Section 3). The Executive originally invited Vice Premier WaYi to head a delegation to the United States for bilateral consultardonsin an effort to further U.S. - Chinatrade relations. The attempt to serve Minister Bo while he washere on that delegation undercut that effort and elicited strong objections from China~which characterized the purported service as an assault and questionedthe goodfaith of the UnitedStates in hosting the visit. Indeed, China’sLegal Adviserhas madecleat m methat, because of this litigation, he has recommendedthat MiNsterBo not travel to the United States unless his immunitiesfrom jurisdiction will be respected. 3. The foreign policy problemscreated by this case are exacerbatedby the fact that it is, in effect, a suit against Chinaabout acts taken in Chinaagainst Chinese nationals..any lawsuit that challenges the policies and actions of foreign authorities in their ownterritory concerningtheir owncitizens has an inherent potential to cause friction in foreign relations. A reviewof the complaint.inthis case makesclear its ambitionto challenge not only acts attributed to Minister Bo, but also the Chinese Government’santi-FLO policy, in general. S(_~.~, for exampIe,Compl. ~ 1, alleging that Minister Bo’s actions weretaken "in concert with other officials at the highest levels of the national governmentof the People’s Republicof China(PRC) and its ruling Central Jul-Z4-O506:lPpt Frot-Daparttent ef State L/DL & L~ ZOZT367541 T-19} P 005 F-657 Committeeof the Chinese CommunistParty.") The fact that the lawsuit is effectively directed against the Chinese GoverrLrnen~mad its official policies is confirmedwhen it is seen in the conte×t of the large numberof suits the FLGhave iNtiated against high-level Chinese officials in the United States and other countries. The FLGwebsite (flNustice.org) lists over sixty actions agains~ Chinese entities and officials. Lawsuits have been flied in South America, Africa, Asia and Europe (in over ten different Europeancountries), in addition to Canada, w’l~ere multiple suits havc been filed, and the UN~edStates, where Ne websi~e