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- Ambassador Robert M. Kimmitt, Senior International Counsel, WilmerHale
Charlie Savage, the New York Times Pulitzer Prize winning journalist, has just released his new book, "Power Wars." The book is an examination of the legal issues surrounding the War on Terror as practiced in the Obama Administration. Following up on his earlier examination of the Bush White House, this book takes us behind the scenes into the heart of the legal debates. Readers get a front row seat to watch as President Obama and his lawyers consider whether it is lawful to send a SEAL team strike into Pakistan to hunt down Osama bin Laden. They see the cross currents at play in debates over NSA surveillance and drone strikes in Yemen, and much more.
The attacks by ISIS on the citizens of Paris and the world have again focused attention on the challenges of counterterrorism. In this Teleforum, former U.S. Secretary of Homeland Security Michael Chertoff and prominent French lawyer Francois-Henri Briard addressed issues such as international cooperation on surveillance and intelligence sharing, whether policies on encryption of electronic communications need to be revised, what authorities or international institutions, if any, should be called upon in support of the use of force against ISIS, and the nature of the response from France, the U.S., Russia, and other nations.
On December 1, 2015, the Supreme Court decided OBB Personenverkehr AG v. Sachs. This case concerns the scope of the commercial activity exception to the Foreign Sovereign Immunities Act (FSIA). Under this exception, sovereign immunity does not bar a lawsuit “based on a commercial activity carried on in the United States by [a] foreign state.” In this case Carol Sachs sued the Austrian national railroad when she suffered serious injuries while attempting to board an Austrian train. The question is whether Sachs’ purchase of her rail pass in the United States brought her suit within the commercial activity exception. The U.S. Court of Appeals for the Ninth Circuit held that it did.
By a vote of 9-0, the Supreme Court reversed the judgment of the Ninth Circuit. Chief Justice Roberts delivered the opinion for a unanimous Court, holding that Sachs’ suit was “based on” the railway’s conduct in Austria and therefore outside the FSIA’s commercial activity exception.
To discuss the case, we have Edwin D. Williamson, who is Of Counsel at Sullivan & Cromwell LLP.