Álvaro Uribe Vélez, the former president of Colombia, had just finished a lecture at Georgetown University in late 2010 when a person confronted him, tossing papers. Uribe didn’t stop to pick up the documents — a subpoena for his testimony in a federal civil suit.
The plaintiffs in a human rights case want to sit down with Uribe to talk about allegations that the Colombian government illegally collaborated with the United Self-Defense Forces of Colombia, a foreign terrorist organization in the eyes of the U.S. State Department.
The suit, against coal producer Drummond Co. Inc., alleges the company took sides to help finance the United Self-Defense Forces in a long, bloody conflict with another organization. The complaint contends the Uribe administration’s alleged support of the paramilitary group benefited Drummond, which is accused of committing crimes under the color of law to advance business interests in Colombia. Uribe is a potential witness, not a defendant.
Uribe’s lawyers, including former White House counsel Gregory Craig, contend he is immune from testifying under long-standing principles that shield sitting and former heads of state from questions about official government acts. The U.S. Justice Department is backing Uribe, arguing he cannot be compelled to speak about official decisions made while he was in office.
But how far does that protection reach? That’s the question for a federal appeals court in Washington. Uribe, who led Colombia from 2002 to 2010, should not be allowed to dodge questions about alleged unlawful acts committed during his presidential administration, contends Terrence Collingsworth of Conrad & Scherer’s Washington office, who represents the plaintiffs in the suit against Drummond in U.S. District Court for the Northern District of Alabama. Collingsworth on October 10 asked the U.S. Court of Appeals for the D.C. Circuit to overturn a Washington judge’s decision allowing Uribe to sit on the sideline.
“If the Court of Appeals permits the Justice Department to cover with immunity any acts committed by former President Uribe while he was president, regardless of whether the acts violate established norms of international law, then virtually any war criminal could get immunity as long as he retained the title of president while engaging in criminal acts,” Collingsworth said via email.
Courts across the country have long grappled with questions about immunity. In many cases, unlike in the Uribe matter, the foreign official is a named defendant. The DOJ in September asserted immunity in a case against former Mexican president Ernesto Zedillo that’s pending in U.S. District Court for Connecticut.
Earlier this month, the U.S. Court of Appeals for the Tenth Circuit upheld the dismissal of a wrongful-death suit against Rwandan President Paul Kagame, who was represented by a team from Arent Fox. Senior Judge Bobby Baldock, writing for the appeals court, said “we must accept the United States’ suggestion that a foreign head of state is immune from suit — even for acts committed prior to assuming office.”
Uribe’s chief lawyer, Craig, a litigation partner in the Washington office of Skadden, Arps, Slate, Meagher & Flom, said during the D.C. Circuit hearing that Uribe is not a “mere witness” in the underlying action against Drummond. Uribe, Craig said, would be drawn into the litigation to substantiate — or refute — ties between the Colombian government and a terrorist group. Craig declined to comment following the hearing.
Drummond’s lawyers, who include William Jeffress Jr. of Baker Botts’ Washington office and William Davis III of Starnes Davis Florie in Birmingham, Ala., contend in the civil suit that the company is not liable for the alleged acts of a subsidiary. The subsidiary, the lawyers argue, was responsible for daily operations in Colombia, including the selection and payment of security contractors.
The appeals court, Craig argued, pointing to the DOJ immunity statement in support of Uribe, has no role in questioning the State Department decision to protect Uribe. “It’s a separation of powers issue,” Craig told the panel judges. “The government of the United States — the executive branch — has the responsibility to carry out the foreign policy of the United States.”
Arnold & Porter partner John Bellinger III represents Colombia in the dispute. The D.C. Circuit decision, Bellinger said in court papers, could affect the treatment of U.S. government officials who get tangled up in litigation overseas.
“Former heads of state are especially attractive targets for lawsuits abroad,” Bellinger said. “In light of the risk that former heads of state will be subjected to harassing suits and subpoenas by those who wish to use the courts of a particular nation as a vehicle for political statements, all countries must safeguard the full extent of immunities reserved to former heads of state.”
Bellinger called the presumption of immunity an “empty guarantee” if a mere allegation of wrongdoing can trump immunity. On the other side, Collingsworth argued in the appeals court, the federal government should not be allowed on its own to decide the merits of a foreign official’s alleged criminality. He urged the appeals court to allow a hearing in the trial court.
“Who gets to decide whether Mr. Uribe collaborated” with an alleged terrorist group?” Collingsworth said in court. “That’s a case-turning point — who gets to decide the facts?”
Senior Judge A. Raymond Randolph of the D.C. Circuit questioned the foundation of the allegations against Uribe, calling the charges of illegal conduct “incredible” and lacking detail.
“The charge that you’re making is a charge of illegal conduct — criminal conduct — against the former president of Colombia,” Randolph said. “There’s no sworn affidavit to that effect.”
Randolph pressed DOJ appellate lawyer Mark Stern about the government’s position on whether a foreign official who commits an illegal act can enjoy immunity. “Is that official conduct subject to immunity or is it something else?” the judge asked. The State Department, Stern replied, did not explore that issue. Randolph seemed incredulous, saying that the question isn’t a hard one to address. “Nobody would say Adolf Hitler had immunity,” he said.
Stern did not respond to a request for comment.
Ultimately, even if Uribe is forced by court order to sit for a deposition, enforcing the subpoena poses a problem for the plaintiffs in the case against Drummond. Uribe is a resident and citizen of Colombia.
“At the end of the day, Mr. Uribe will have to ask himself, “Do I ever want to come to the United States again?’ ” Collingsworth said.
Mike Scarcella can be contacted at email@example.com.