In May 2017, protests in Washington, D.C., against Turkish President Recep Tayyip Erdogan ended in violence by Turkish security officials. Now, two different groups of anti-Erdogan protesters have brought civil suits against Turkey, and one of those suits relies on the Justice Against Sponsors of Terrorism Act (JASTA) to overcome foreign state immunity and to recover treble damages. Although a government’s effort to maintain security at its own diplomatic premises in another country is not what one normally thinks of as “international terrorism,” the plaintiffs have a surprisingly strong (if ultimately unconvincing) argument that Turkey’s conduct fits the statutory definition.

Factual Background

During a state visit by Erdogan on May 16, 2017, protestors gathered at the residence of the Turkish ambassador to voice opposition to Turkish policy on the Armenian genocide, the government’s treatment of Kurds, and the government’s crackdown on civil liberties and democratic institutions. Supporters of Erdogan, some of whom apparently hoped to see or to meet him, also gathered. For a time, the event was peaceful, but it then became violent. Anti-Erdogan protesters were kicked and beaten, sometimes by Turkish security officials and sometimes by private individuals who supported the Turkish government. The New York Times has outstanding coverage of the event (with video clips), including an analysis of exactly how the violence started. The state-run Turkish news agency gives its version of the events here. It describes (also with video clips) the anti-Erdogan protesters as the aggressors, details the harm inflicted on Erdogan supporters and criticizes the level of protection provided by the D.C. police.

Two U.S. citizens who supported Erdogan have pleaded guilty to assault in the Superior Court of the District of Columbia. Fifteen members of the Turkish security team were indicted in federal court, but 11 of those indictments have been dismissed for reasons that are not clear. The other four indictments are unlikely to go forward because the defendants have left the country.

Two Civil Suits Against Turkey

Protesters filed two civil suits against Turkey in May 2018. The suits differ somewhat in their political focus and legal basis. Plaintiffs in the first suit, Kurd v. The Republic of Turkey, are citizens of the U.S. and other countries. All are of Kurdish heritage, save one who is identified as an editor who opposes alleged Turkish persecution of Kurds. The complaint details human rights abuses in Turkey—especially the failure to respect the rights to speech and assembly—and it also alleges discrimination and bias by the Turkish government against the Kurdish minority, including the removal of Kurdish elected officials and closing of Kurdish newspapers, television and radio stations, as well as killings, torture and enforced disappearances. It further asserts that some of the conduct by security personnel was ordered by Erdogan himself as he sat in a black Mercedes-Benz outside the residence of the Turkish ambassador.

Entitlement to relief is based on various torts, a hate crime statute and violations of the Alien Tort Statute (ATS). The ATS allegations are unusual and are likely to be dismissed. Plaintiffs claim that Turkey has violated international law and the ATS by exercising “enforcement jurisdiction” in the United States—apparently meaning that through the aggression against the protestors, Turkey was enforcing its laws in the United States and interfering in the United States’s internal affairs.

The second suit, Usoyan v. Republic of Turkey, alleges that the attacks on the protesters were acts of terrorism that formed just one component of a crackdown on speech and civil discourse in Turkey and elsewhere. The purpose of the violence against the protesters was, according to the complaint, to chill protest against Erdogan in both the United States and Turkey. This complaint, too, alleges personal involvement by Erdogan and various torts, but instead of violations of the ATS, the Usoyan suit alleges violations of JASTA. The Republic of Turkey has filed motions to dismiss in both cases; the plaintiffs have yet to respond.

Immunity: Tort Exception

The complaints assert jurisdiction over Turkey based on the tort exception to the Foreign Sovereign Immunities Act (FSIA). Indeed, in Kurd v. The Republic of Turkey, that exception is the only basis for jurisdiction (amended complaint, ¶ 2). As many readers know, foreign states are immune from suit under the FSIA, and the federal courts accordingly lack subject matter jurisdiction, unless an exception to immunity applies. In this case, there is no question that Turkey is a foreign state under the FSIA. The FSIA exception for a forum or noncommercial tort (28 U.S.C. § 1605(a)(5)) provides, however, that a foreign state is not immune for personal injury occurring in the United States and “caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.” To the extent that alleged violence was that of an official or employee within the scope of employment, the forum tort exception applies. Except—and here is the most important bit for these cases—there is an exception within the exception for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.”

Whether the discretionary function exception within the noncommercial tort exception applies in this case is not entirely clear. This is where the immunity issues get interesting, even aside from JASTA. The discretionary function exception applies if a foreign state was making a choice or judgment that involved social, economic or political policy. See Restatement (Fourth) of Foreign Relations Law § 457, Reporters’ Note 4 (2018).

Turkey’s motion to dismiss argues that the Turkish security officials faced an increasingly dangerous security situation that involved the safety of their head of state, and that the security officials had to make split-second policy decisions about how to respond. Federal courts in the District of Columbia accepted a similar argument and conferred immunity in a case against the United States based on comparable statutory language about discretionary functions. That case, Macharia v. United States, involved alleged security problems at the U.S. Embassy in Nairobi, Kenya. The court reasoned that embassy security involved various policy questions with an impact on foreign relations. Macharia did not involve a protest nor was the suit based on the FSIA, and there are reasons to avoid analogizing the immunity of the United States to the immunity of foreign states when it comes to discretionary functions. See Restatement (Fourth) of Foreign Relations Law § 457, Reporters’ Note 4 (2018).

Courts have, however, generally interpreted the FSIA broadly to confer immunity on foreign states when they are dealing with security-related issues. Under the commercial activity exception (28 U.S.C. § 1605(a)(2)), for example, many contracts for services are deemed commercial, meaning there is no immunity for claims based upon them. But this exception does not include contracts involving the security and safety of foreign government officials. A recent case from New York, Figueroa v. The Ministry of Foreign Affairs of Sweden, is illustrative. The district court held that serving as a driver for the Swedish ambassador and his family was not commercial conduct because:

A sovereign's decisions on how best to address the safety concerns of government officials are peculiarly sovereign because the failure to protect or safeguard a sovereign representative, such as an ambassador or a titular head of state, can have extremely adverse consequences for the sovereign nation. See Butters v. Vance Int'l, Inc., 225 F.3d 462, 465 (4th Cir. 2000)

Although Figueroa involves a different exception to immunity under the FSIA, it illustrates courts’ general willingness to confer immunity on foreign states for conduct related to state security.

Turkey has an additional hurdle to overcome, however. The exception within an exception does not generally apply to criminal acts. In other words, there is an exception within the exception within the exception. The doctrine, which is not based on the text of the statute, was first articulated in the 1980 case Letelier v. Republic of Chile, in which the plaintiffs alleged that Chile had assassinated the country’s former ambassador to the U.S. as he drove to work in Washington, D.C. The court held that the discretionary function exception did not apply because “there is no discretion to commit, or to have one's officers or agents commit, an illegal act” and because there is “no ‘discretion’ to perpetrate conduct designed to result in the assassination of an individual or individuals, action that is clearly contrary to the precepts of humanity as recognized in both national and international law.”

Turkey correctly points out that the mere possibility that the conduct alleged might violate a criminal law should not be enough to make the act nondiscretionary. For example, just because a building renovation for diplomatic purposes might violate D.C. zoning laws does not make the discretionary function exception inapplicable. If the criminal-acts reasoning is based on the likelihood that the conduct was criminal, plaintiffs have a strong case, both because of the indictments of many Turkish security officials and because the allegations are of conduct that is clearly criminal. The criminal-acts reasoning might depend instead on whether the alleged criminal conduct is “serious,” as suggested in the district court’s opinion in Doe v. Federal Democratic Republic of Ethiopia, a standard that plaintiffs’ allegations may well satisfy given the severity of the harm involved.

Resolution of the “criminal act” issue will depend on how broadly the court reads Letelier but also on how broadly it frames the applicable conduct. If the security of diplomatic premises is generally a discretionary function, an alleged isolated assault or battery that occurred during security-related activity should not be enough to deny immunity. At the same time, in this case the violence and harm to the plaintiffs was significant, participants were indicted, and plaintiffs allege that Turkey has engaged in a long-term pattern of violent acts at home and abroad specifically intended to shut down criticism of President Erodgan.

Interestingly, the Kurd complaint does not allege a pattern of conduct that extends to Turkey, perhaps out of concern with the “entire tort” rule. As discussed here and here, some courts have held that if the tortious intent is formed outside the United States, the tort exception does not apply. By contrast, the Usoyan complaint does allege a pattern extending to Turkey (see complaint ¶¶ 8, 29) in an effort to come within the statutory definition for terrorism, as discussed below, but leaving open the theoretical possibility that the noncommercial tort exception is inapplicable because the tortious intent was formed elsewhere. That possibility is theoretical because Turkey has characterized the conduct as occurring entirely in the United States as part of its argument that the terrorism statutes do not apply (Defendant Republic of Turkey’s Substitute Motion to Dismiss, p. 72).

Justice Against Sponsors of Terrorism Act (JASTA)

The Usoyan complaint alleges that Turkey is not immune from suit under the exception to immunity created by JASTA (28 U.S.C. § 1605B(b)) and that Turkey is liable to the plaintiffs for treble damages under the cause of action created by JASTA (28 U.S.C. § 1605B(c)). The key question under both parts of JASTA is whether the allegations against Turkey satisfy the statutory definition of “international terrorism.” JASTA incorporates the definition from another anti-terrorism statute, 18 U.S.C. § 2331(1), which provides in relevant part that “international terrorism” means violent acts that are violations of state or federal criminal law, that “appear to be intended – (i) to intimidate or coerce a civilian population,” and that “transcend national boundaries” in terms of “the means by which they are accomplished” or “the persons they appear intended to intimidate or coerce.” JASTA lifts immunity and provides a cause of action against foreign states for injury caused by “an act of international terrorism in the United States.”

The plaintiffs allege that the definition is satisfied because Turkey’s actions against the demonstrators “sent a clear message to protestors in the United States, Turkey, and throughout the world, the anyone who has temerity to oppose President Erdogan shall face arbitrary beatings, or worse” (Usoyan complaint, ¶ 1). Turkey has committed, according to the complaint, a pattern or practice of “violent acts of hate, hostility, abuse, and invidious discrimination” in order to repress and intimidate those who do not support President Erdogan (complaint, §§ 5, 8). Thus, plaintiffs argue, Turkey’s actions are designed to intimidate or coerce civilians and the actions transcend national boundaries, meeting the statutory definition of “international terrorism.”

The definition of “international terrorism” was not originally crafted to apply to the violent, repressive actions of foreign governments that coerce civilians by limiting their free speech and other civil liberties. Indeed, the definition in 18 U.S.C. § 2331 did not originally apply to foreign states at all, and the definition is not incorporated into the state sponsors of terrorism exception to immunity in 28 U.S.C. §1605A. JASTA itself, enacted in 2016, was drafted primarily to provide relief to the victims of the airline hijackings on Sept. 11, 2001, and with Saudi Arabia as its target. The language of JASTA is broader, of course, and there is no textual reason to conclude that “coerce a civilian population” could not reach a foreign government’s treatment of its own citizens, even if we do not normally think of such conduct as terrorism. But the plaintiffs seek recovery based on Turkey’s actions in Washington, D.C., and it is not clear that those actions were intended to intimidate or coerce civilians as opposed merely to ending the anti-Erdogan protests. Cases interpreting 18 U.S.C. § 2331 have applied an objective test to determine whether an action “appeared to be intended” to coerce a civilian population, meaning that the subjective intentions of Turkish officials are not relevant, only whether they objectively appear intended to coerce civilians. The plaintiffs’ factual allegations in support of the coercion claim refer back to the general pattern or practice of repressive conduct by the Turkish government, most of which took place in Turkey.

The statutory definition of international terrorism also requires that the violent actions transcend national borders. It is not clear that this requirement is satisfied by allegations that Turkey repressed dissent at home primarily against its own people, coupled with the acts of violence against protestors in the U.S. Turkey argues that it was just responding to a dangerous situation in Washington, D.C.; that the relevant events were entirely within the United States; and that they thus do not transcend national boundaries. To this extent, Turkey tries to have it both ways. In terms of assessing the threat posed by the anti-Erdogan protesters, Turkey relies extensively on domestic events in Turkey, especially the actions of Kurdish political groups and various attempts on Erdogan’s life. Yet in assessing the objective impact of the violence against the protestors in Washington, D.C., Turkey sees the events in purely local terms.

More broadly, however, Turkey is certainly correct that the plaintiffs’ arguments invite—or even require—courts to make determinations about political events inside Turkey. Indeed, Turkey also argues that the cases should be dismissed based on international comity and the political question doctrine. As awful as Erdogan’s policies are, plaintiffs’ claim under JASTA opens the door to terrorism litigation that relies heavily on allegations of repression by a foreign government of its own citizens at home. President Obama vetoed JASTA, in part out of concern that it would allow private litigants to drive U.S. foreign policy, threatening relationships with allies and complicating negotiations with countries that support or engage in terrorist attacks in the United States. As sympathetic as the protestors are, allowing cases such as Usoyan to go forward under JASTA only magnifies the potential problems created by JASTA.

International Law

Turkey does not argue that international law requires the United States to confer immunity in these cases. International law, like the FSIA, has an exception to immunity for tortious conduct in the forum state (the “forum tort” or “territorial tort” exception), as the International Court of Justice (ICJ) described in Germany v. Italy (Jurisdictional Immunities). The FSIA may confer more generous immunity under the exception than international law requires. For example, Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties does not include the “entire tort” requirement that courts have applied under the FSIA. Nor does it include an explicit exception within the exception for discretionary functions. To be clear, the U.N. Convention is not in force and may not represent customary international law, although it is often cited.

Turkey could argue that it is entitled to immunity for its sovereign acts (acta jure imperii) even if they otherwise fall within the forum tort exception. The ICJ has noted (Jurisdictional Immunities ¶ 64) that national legislation with a territorial tort exception does not support the argument that acta jure imperii should generally be excluded from the exception. In the end, however, the court explicitly left open the question “whether there is in customary international law a ‘tort exception’ to State immunity applicable to acta jure imperii in general” (Jurisdictional Immunities ¶ 65). If there is not, then the denial of immunity to Turkey could violate international law because the security of the head of state and the ambassador’s residence may well be characterized as acta jure imperii. The success of such an argument is far from clear, however.

The protestors’ suits against Turkey raise interesting legal questions about the immunity of foreign states and the definition of international terrorism. They also raise interesting questions about the optimal scope of foreign state immunity as a matter of policy. On the one hand, violent attacks on protestors in the United States will curtail criticism of Erdogan—an unfortunate result given the nature of his regime and the value of open speech generally. On the other hand, diplomatic and head-of-state security are important to all governments, including the United States. Finally, when it comes to immunity, the question is not whether Turkey’s actions were lawful or legitimate—issues that can be addressed in part through diplomatic negotiations—but instead whether those questions should be resolved through private litigation.