The opinion of the court was delivered by: Mathew Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs are practitioners of Falun Gong, a spiritual movement of Chinese origin, and are either current or past residents of China.*fn1 Defendants are Jiang Zemin, the former President of the People's Republic of China, and the Falun Gong Control Office, an agency Jiang allegedly established for the purpose of suppressing the Falun Gong movement. The complaint alleges horrific human rights abuses suffered by plaintiffs A, B, C, D, E, and F at the hands of Chinese officials carrying out the dictates of the Falun Gong Control Office. Plaintiffs Wei Ye, a Chinese citizen residing in Illinois, and Hao Wang, a United States citizen residing in Massachusetts, allege defendants violated 42 U.S.C. § 1985 by attempting to obstruct their attempts to travel from the United States to Iceland in June 2002. Plaintiffs Page 2 allege that defendants did so in order to prevent them from attending protests against China's persecution of Falun Gong practitioners during Jiang Zemin's visit to Iceland.
Plaintiffs contend that the Court has jurisdiction of the case pursuant to the Alien Tort Claim Act, 29 U.S.C. § 1350, which confers original jurisdiction in the district courts over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."*fn2 They maintain that jurisdiction exists because they allege violations of both customary international law and jus cogens norms as well as treaties the United States has ratified. Specifically, the complaint contains claims for torture; genocide; violation of the right to life; violation of the right to liberty and security of the person; arbitrary arrest and imprisonment; violation of the right to freedom of thought, conscience, and religion; and conspiracy to commit violations of civil rights within the United States.
Defendants have not responded to the complaint, and plaintiffs have moved for entry of an order of default. The case is before the Court for consideration of preliminary jurisdictional matters. The United States government has intervened as an amicus curiae pursuant to 28 U.S.C. § 517, which permits the government to "attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States." In its amicus submission, the government suggests that Jiang is immune from suit based on his status as China's former head of state. Alternatively, the government urges the Court to vacate an order entered Page 3 by another judge of this Court, acting as emergency judge, which authorized plaintiffs to serve Jiang by alternate means, or to quash service because of alleged defects. Thirty-eight members of the United States Congress have also submitted an amicus brief urging the Court to exercise jurisdiction over defendants.
The complaint alleges the following factual background. In March 1993, defendant Jiang assumed the offices of President of the People's Republic of China and Chair of the country's Central Military Committee. In 1997, he also became the Secretary General of the Central Committee of the Chinese Communist Party, which for over fifty years has been the dominant political party in China.*fn3 In November 2002, Jiang resigned his post as head of the Party, and on March 15, 2003, he stepped down as president of China
Plaintiffs contend that in June 1999, Jiang embarked on a campaign to eliminate the practice of Falun Gong in China. To this end, on June 10, 1999 Jiang established the Falun Gong Control Office, which plaintiffs claim is a subdivision of the Chinese Communist Party. They claim Jiang created this entity, known as "Office 6/10" in commemoration of the date of its inception, to organize and direct the suppression of Falun Gong throughout China. Office 6/10 has local branches in each province and city of China. Plaintiffs allege that according to the charter of one local office, the regional branches' responsibilities include "implement[ing] the decisions from the Central Committee of the Chinese Page 4 Communist Party regarding preventing and dealing with Falun Gong and other evil cults." Compl. ¶ 30 (quoting local charter) (internal quotation marks omitted). In July 1999, Jiang is claimed to have issued an edict outlawing Falun Gong as a threat to the Chinese government and people and ordering it suppressed by any means. Plaintiffs allege that he caused the Ministry of Public Security to issue a list of prohibitions that made illegal many activities engaged in by Falun Gong practitioners, including speaking out in defense of the movement. Jiang also allegedly ordered China's legislative body, the National People's Congress, to pass a series of retroactive laws ostensibly legitimizing this crackdown. Plaintiffs allege that the suppression has been marked by atrocities — arrest without trial, execution, rape, disappearance, forced labor in work camps, and torture of thousands of Falun Gong practitioners.
Plaintiffs filed this lawsuit under seal on October 18, 2002. Knowing that Jiang would be visiting Chicago on October 22 and 23, 2002, plaintiffs moved ex parte for leave to effect service on defendants by alternate means. Judge William J. Hibbler, acting as emergency judge in our absence, granted the motion and entered an order permitting service to be achieved by delivering a copy of the summons and complaint "to any of the security agents or hotel staff helping to guard" Jiang during his stay in Chicago. Order of Oct. 21, 2002. Plaintiffs contend that they properly effectuated service by delivering the documents to a Chicago Police commander stationed at Jiang's hotel and to agents of the United States Secret Service assigned to guard Jiang.
A. Head-of-State Immunity
In its amicus submission, the government suggests that Jiang is immune from the jurisdiction of Page 5 the Court because he is China's former head of state. Citing Supreme Court precedent that the Court discusses below, the government maintains that courts are bound by the Executive Branch's determinations of immunity. Plaintiffs argue that although such deference was once the rule, courts are no longer bound by suggestions of immunity and that immunity is not appropriate in this case because head-of-state immunity does not shield former heads of state. The enactment of the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1602 et seq., altered the practice of court deference to the Executive Branch's immunity suggestions on behalf of foreign states. See Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 486-88 (1983). Whereas under traditional practice immunity determinations were made by the Executive Branch, the FSIA placed that responsibility — at least with regard to states — in the courts. 28 U.S.C. § 1602 ("Claims of foreign states to immunity should henceforth be decided by courts of the United States. . . ."). Although plaintiffs acknowledge that the FSIA does not govern the immunity claims of individuals, they maintain that "the principle embodied in the FSIA to treat [immunity] claims through the judicial process rather than diplomatically [also applies] to immunity claims raised by government officials." Pls.' Mem. on Preliminary and Jurisdictional Issues at 2 (hereinafter Pls.' Mem.).
The Court has recently considered the deference that must be accorded the Executive Branch's suggestions of immunity for heads of state as well as the effect that the FSIA's enactment had on the immunity-suggestion procedure. The following discussion is taken largely from the Court's opinion in Abiola v. Abubakar, 267 F. Supp.2d 907 (N.D. I11. 2003).
Under traditional common law, a foreign head of state was absolutely immune from suit in United States courts. The Supreme Court articulated this principle of customary international law in its Page 6 1812 decision, The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812).*fn4 Although The Schooner Exchange held merely that an armed ship of a friendly foreign state was exempt from the jurisdiction of United States courts, the decision "came to be regarded as extending virtually absolute immunity to foreign sovereigns." Verlinden, 461 U.S. at 486. Sovereign immunity was premised on the notions of comity and the equal dignity of nations. A ruler could not be seen to "degrade the dignity of his nation by placing himself or its sovereign rights within the jurisdiction of another." The Schooner Exchange, 11 U.S. (7 Cranch) at 137. A head of state's immunity was premised on the concept that a foreign state and its ruler were one and the same; the "prince" was deemed to be the personification of the sovereign state. The Schooner Exchange reflects this conflation; throughout the opinion Chief Justice Marshall makes no distinction between the sovereign as state and the sovereign as ruler.
As the principles articulated in The Schooner Exchange evolved into a general doctrine of foreign sovereign immunity, the courts consistently "deferred to the decisions of the political branches — in particular, those of the Executive Branch — on whether to take jurisdiction over actions against foreign sovereigns and their instrumentalities." Verlinden, 461 U.S. at 486. The Supreme Court articulated the rationale for such deference:
[I]t is a guiding principle in determining whether a
court should exercise or surrender its
jurisdiction . . ., that the courts should not so
act as to embarrass the executive arm in its conduct
of foreign affairs."In such cases the judicial
department of this government follows the action of
the political branch, and will not embarrass the
latter by assuming an antagonistic jurisdiction." It
is therefore not for the courts to deny an immunity
our government has seen fit to allow, or to allow
an immunity on new grounds which the government has
not seen fit to recognize.
Republic of Mexico v. Hoffman, 324 U.S. 30
, 35 (1945) (quoting United States v. Lee, 106 U.S. 196, 209 ...