Marlene, that time works well.  Speak to you then.

 

 

 

Chris,

I would like to have a phone call with you later today to discuss the amicus briefs in the Dogan case. Could we set it for 22:30 Israel time?

I am also asking John Bellinger to be on the call.

 

We can use our dial-in numbers –

From the US: 1-888-236-7573

From Israel: 03-918-0622

The code for all attendees to enter the conference room: 04221#

 

Best,

Marlene

 

Marlene Mazel Director Foreign& Counter-Terrorism Litigation Department

Department of the Deputy Attorney General (international Law)

Ministry of Justice State of Israel

Office: + 972 (0)3 763 4276 | Cell: +972 (0)50 621 7692

Fax: +972 (0)2 646 7799

 

marlenem@justice.gov.il

 

This email is confidential and for the exclusive use of its addressee. If you are not the intended recipient, please delete this message.

 

 

Privileged and Confidential

 

Marlene, David:

 

I hope you’re both well.  We received a call from the lawyers for the plaintiffs.  They are asking for our consent to have three amicus briefs filed.  We recommend giving consent.

 

As you know, interested third parties often file amicus briefs in the US federal appellate courts.  Amicus briefs can be filed without leave of court if both parties give their consent; if any party doesn’t consent, the proposed amicus filer has to file a motion for permission to file.  The courts are liberal in allowing amicus briefs to be filed, and the usual practice is for parties to give consent. 

 

We asked the plaintiffs’ lawyers to identify the proposed amici.  They are the Center for Constitutional Rights; EarthRights International; and a U.S. law professor named William Aceves (other professors may or may not join his brief).  The Center for Constitutional Rights is a well-known progressive legal advocacy group with a long history of litigating under the Alien Tort Statute:  they represented the plaintiff in Filártiga v. Peña-Irala, the Second Circuit’s original decision applying the ATS in human rights cases, and have litigated a number of prominent ATS and Torture Victim Protection Act cases since then.  EarthRights is less well known but from their website appears to frequently represent plaintiffs in ATS cases involving environmental-justice claims.  Professor Aceves’s work deals with issues of international human rights.  He wrote the attached article criticizing the decisions in Matar and Belhas, which are important precedents for us. 

 

From their backgrounds, we would expect that these amici would say in their briefs that it is important that US courts be open to cases like this one.  We would expect that their arguments would generally be coordinated with the plaintiffs’ main arguments and would divide up the major questions between them.  For example, one might urge a broad reading of the ATS, a second might focus on whether there is a jus cogens exception to immunity, and the third might address whether the Anti-Terrorism Act overrides common-law immunity and argue for a broad understanding of what constitutes torture.  The arguments would most likely echo and expand on arguments that the plaintiffs themselves will make in their brief.

 

It is almost certain that the Ninth Circuit will allow briefs like these to be filed.  In light of that, we do not see a benefit in withholding consent.  And there may some minor harm in withholding consent, because it may be perceived as defensive and understood to suggest that we are afraid of a full presentation of views to the Court.  That is why parties in our position generally do give consent, and why we recommend giving consent here.  If you have any concerns about that approach we are happy to discuss.    

 

The other side has asked for our response as quickly as possible, so if you are able to tell us by Thursday your time that would be terrific.  Thanks in advance.

 

Best,

 

Chris 

CHRISTOPHER M. EGLESON
Partner

SIDLEY AUSTIN LLP
555 West Fifth Street
Los Angeles, CA 90013
+1 213 896 6108
cegleson@sidley.com
www.sidley.com

 

 

 

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