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Published online by Cambridge University Press: 27 February 2017
A federal grand jury investigating possible criminal violations of the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. §§ 1961 — 1968 (1982)) (RICO) by former Philippine President Ferdinand Marcos and his wife issued subpoenas requiring the Márcoses to provide handwriting and voice exemplars and fingerprints, and to sign forms authorizing the release of confidential banking records. The Márcoses refused to comply with the subpoenas and were held in civil contempt. On appeal, the U.S. Court of Appeals for the Second Circuit (per Cardamone, J.) affirmed the contempt order and held that (1) the current Government of the Philippines had effectively waived whatever head-of-state immunity the Márcoses might have otherwise enjoyed; (2) United States law governed the Márcoses’ privilege against self-incrimination, rather than the arguably broader provisions of Philippine law; and (3) the trial court had the authority to enforce the grand jury’s order requiring the Márcoses to waive foreign financial secrecy laws.
1 The grand jury subsequently indicted the Marcoses as well as numerous other defendants, including Adnan M. Khashoggi, California Overseas Bank and its president and chairman. This indictment, based in part upon the activities of the Marcoses while still in power in the Philippines, raises a number of related questions beyond the scope of this note. See Zagaris, Indictment of Marcos Raises Extraterritorial Jurisdiction and Other International Criminal Law Issues, 4 Int'l Enf. L. Rep. 353 (October 1988).
2 The court assumed, without holding, that any immunity that Ferdinand Marcos enjoyed would extend to his wife, Imelda. 860 F.2d 40, 44.
3 The court noted that the international law of head-of-state immunity is in “an amorphous and undeveloped state.” Id. (citing Note, Resolving the Confusion over Head of State Immunity: The Defined Rights of Kings, 86 Colum. L. Rev. 169, 179 (1986)).
4 Id. at 45. The court also observed that the constitutional authority of the President (to conduct foreign relations) and Congress (“to define and punish … Offenses against the Law of Nations”) counseled against judicial definition of head-of-state immunity. Nevertheless, the court went on to suggest that head-of-state immunity would not likely extend “to a former head-of-state for private or criminal acts in violation of American law.” Id. (citing In re Grand Jury Proceedings Doe No. 700, 817 F.2d 1108, 1111 (4th Cir. 1987) (upholding previous subpoenas to Marcoses issued by a different grand jury), cert, denied, 108 S.Ct. 212 (1987); Republic of the Philippines v. Marcos, 806 F.2d 344, 360 (2d Cir. 1986) (civil case brought by current Government of the Philippines to recover assets from Marcoses), summarized in 81 AJIL 417 (1987), cert, denied, 107 S.Ct. 2178 (1987)).
6 See Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §1605(a)(1) (1982); United States v. Truong Dinh Hung, 629 F.2d 908, 929 (4th Cir. 1980), cert, denied, 454 U.S. 1144 (1982) (discussing possibility of waivers of diplomatic immunity); REstatement (Third) of Foreign Relations Law of the United States §464 comment j (1987) (waiver of immunity).
6 The court suggested that any waiver of head-of-state immunity could not be inadvertent, implied or constructive. 860 F.2d at 46. The text of the Philippine note waiving immunity is reprinted in the court's opinion. Id. at 43.
7 See United States v. Dionisio, 410 U.S. 1 (1973) (privilege does not extend to voice exemplar); Gilbert v. California, 388 U.S. 263 (1967) (privilege does not extend to handwriting exemplar).
8 As the court noted, for the grand jury to do so would violate Fed. R. Crim. P. 6(e), which mandates that grand jury proceedings be kept secret on pain of contempt.
9 The MLAA, signed June 11, 1986, was specifically crafted to govern requests between the Philippine and U.S. Governments for information concerning the Marcoses, and it provides that the law of the requesting party shall govern any such request. See Dep't St. Bull., No. 2113, August 1986, at 92.
10 860 F.2d at 48. The court of appeals also rejected Marcos's argument that the MLAA, which establishes procedures for the exchange of information between the United States and the Philippines, was itself a “request” within the meaning of §1782. The court reasoned that the MLAA merely provided a framework for future requests. Id. at 48–49.
11 See Doe v. United States, 108 S.Ct. 2341 (1988).
12 See id. at 2345 n.3 (noting that defendant in that case had conceded enforceability of validly issued subpoena).
13 Subsequent to the In re Doe decision, the U.S. Supreme Court denied the Marcoses' request for an emergency stay of compliance with the subpoenas at issue. See Marcos v. United States, 109 S.Ct. 387 (1988). Thereafter, the Marcoses complied with the subpoenas, rather than risk being jailed for contempt of court. See Marcos, Wife Give Evidence at FBI Office, L.A. Times, Nov. 20, 1988, at 5, col. 1.
14 860 F.2d at 45. Similarly, the court's reliance on a foreign state's ability to waive its own sovereign immunity has little relevance to a foreign state's waiver of a former head of state's immunity. The court's analogy to diplomatic immunity is somewhat more helpful, although the waiver principles applicable to ministerial employees may well be inappropriate where heads of state are concerned.
15 Cf. Republic of the Philippines v. Marcos, 818 F.2d 1473 (9th Cir. 1987) (dismissing Philippines damages action against Marcos on ground of act of state and political question doctrines), rev'd, No. 86-6091 (9th Cir. Dec. 1, 1988), as amended Dec. 2, 1988 (en banc) (holding that act of state and political question doctrines have no application to case). See also id. (Schroeder, J., concurring in part and dissenting in part) (agreeing that act of state and political question doctrines do not bar suit, but questioning existence of pendent jurisdiction and failure to apply forum non conveniens doctrine).
16 As one student note has commented, permitting suits against former heads of state may “disrupt the Executive's ability to help effect transitions of power abroad.” Note, Ex-Head of State Immunity: A Proposed Statutory Tool of Foreign Policy, 97 Yale L.J. 299, 306 (1987).
17 The court in In re Doe rather strikingly expressed little, if any, deference to the position of the executive branch, which was prosecuting the case. This sharply contrasts with other decisions holding that the President and his representatives have a leading role in matters affecting U.S. foreign policy. See, e.g., Dames & Moore v. Regan, 453 U.S. 654(1981);Haigv. Agee,453 U.S. 280 (1981); but cf. First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972).
18 For this reason, the claim of head-of-state immunity may be unavailing to avert the criminal prosecution of the Marcoses. It has been reported that the Philippines has waived whatever head-of-state immunity the Marcoses might have in connection with the indictment against the couple. See Indictment of Marcos Due Today, Wash. Post, Oct. 21, 1988, at A1, col. 1.
19 See The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812) (sovereign immunity); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) (act of state doctrine); Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (forum non conveniens); Timberlane Lumber Co. v. Bank of America Nat'l Trust & Savings Ass'n, 749 F.2d 1378 (9th Cir. 1984) (jurisdictional rule of reason), cert, denied, 472 U.S. 1032 (1985).