From: "Bellinger III, John B." <John.Bellinger@apks.com>
Date: 4 May 2017 at 15:35:05 GMT+3
To: Marlene Mazel <MarleneM@justice.gov.il>
Cc: "Anderson, Reeves" <Reeves.Anderson@apks.com>, David.GoldfarbFW <David.Goldfarb@mfa.gov.il>
Subject: RE: Dogan v. Barak - Plaintiffs' Request for Consent to Submit Amicus Briefs

Hi Marlene/David:

 

Unfortunately, I agree.   I am familiar with all of these groups and have either litigated or been on panels with them about ATS cases.

 

I’m a bit surprised that they have decided to file amicus briefs in this case.   Barak is not exactly an infamous human rights abuser.  I would have thought they would have picked other battles.   But they are very hard-left groups and want to preserve the ATS, so they may want to file in every case.

 

I do think that the Ninth Circuit is likely to allow the briefs in anyway, so you might as well consent.   We may end up seeing amicus briefs in our DC Circuit case as well.

 

As for briefs on your side, I assume the USG will file a Statement of Interest supporting you.   That is really all you need.   But Sidley could ask a group of international lawyers or former USG officials to file an amicus brief on the immunity point; the difficulty will be finding a way to pay for those briefs.  Israel is not permitted to pay for them.   There are a couple of conservative legal groups that might be willing to organize and draft a brief.

 

John  

 

From: Marlene Mazel [mailto:MarleneM@justice.gov.il]
Sent: Thursday, May 04, 2017 8:20 AM
To: Bellinger III, John B.
Cc: Anderson, Reeves; David.GoldfarbFW
Subject: FW: Dogan v. Barak - Plaintiffs' Request for Consent to Submit Amicus Briefs

 

Hi John,

 

What are your thoughts on the email below? We are inclined to consent.

 

Do you have any thoughts on whether there should be amici filed to support our position and if so by which types of individuals or organizations? I plan on scheduling a call with Sidley and would like you (and Reeves) to join the call if possible.

 

Marlene

 

From: Goldfarb David [mailto:David.Goldfarb@mfa.gov.il]
Sent: Thursday, May 04, 2017 3:11 PM
To: Egleson, Christopher M.; Marlene Mazel
Cc: Stanislawski, Howard J.; Axel, Douglas A.
Subject: RE: Dogan v. Barak - Plaintiffs' Request for Consent to Submit Amicus Briefs

 

Hi Chris,

 

I accept your recommendation. Marlene?

 

From: Egleson, Christopher M. [mailto:cegleson@sidley.com]
Sent: Wednesday, May 03, 2017 7:13 AM
To: Marlene Mazel; Goldfarb David
Cc: Stanislawski, Howard J.; Axel, Douglas A.
Subject: Dogan v. Barak - Plaintiffs' Request for Consent to Submit Amicus Briefs

 

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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