This is (Not) Criminal! Türkiye Halk Bankasi A.S. v. United States & its Limitations on Immunity

In April of 2023, the United States Supreme Court handed down an opinion on a relatively unfollowed but significant case which confused an already confusing issue. In Türkiye Halk Bankasi A.S. v. United States, the federal government indicted Türkiye Halk Bankasi (Halkbank)—a Turkish government owned bank—in 2019. The indictment alleged Halkbank had evaded economic sanctions imposed by the United States on Iran, laundered billions of dollars of Iranian oil through the global and U.S. financial systems, and made false statements to the U.S. Treasury Department.[1] In its defense, Halkbank argued (1) the federal courts had no jurisdiction over it and (2) the FSIA provided immunity in both civil and criminal actions against foreign sovereigns. This piece will focus on Halkbank’s second argument for brevity.
At the center of this case stands the Foreign Sovereign Immunities Act of 1976 (FSIA),[2] a statute passed by the U.S. legislature to remove foreign sovereign immunity decisions from the ever-changing State Department to the supposedly never-changing judiciary.[3] To determine whether a foreign sovereign or its sub-entity is entitled to immunity under the FSIA, a court applies a three-part test.[4] This seems easy enough, but it is plagued with complexity; therefore, I will simply state that Halkbank would traditionally qualify for immunity under the FSIA.
Yet, the case law surrounding the FSIA contains no criminal prosecutions, only civil actions. The two opinions from Halkbank—though different in their reasoning—solidified that precedent for the foreseeable future.
A. The Majority Opinion
Justice Brett Kavanaugh’s majority opinion took a strong textualist’s approach when deciding whether the FSIA’s immunity extended into criminal prosecutions. In fact, the Court leans heavily on how “the FSIA is silent as to criminal matters” and “says not a word about criminal proceedings.”[5] Yet, the Court stresses the importance of interpreting the statute in context, looking at the whole rather than interpreting each individual section.[6] The majority explains that the FSIA creates a carefully calibrated scheme governing venue, removal, procedure, and exceptions to immunity, clarifying that those provisions either expressly state they apply only to civil cases or use terms such as litigants that are ordinarily used in the civil context.[7]
The majority also analogizes Halkbank’s claim with the Court’s Samantar opinion which narrowly held individual foreign officials do not receive FSIA immunity for actions taken in their official capacity.[8] Armed with their textual interpretation and narrowly tailored precedence, the Court ultimately rejected Halkbank’s arguments. Refusing to extend the FSIA’s immunity into criminal proceedings, the Court unequivocally stated, “The FSIA does not provide foreign states and their instrumentalities with immunity from criminal proceedings.” [9] The Court did, however, leave the door open for Halkbank to obtain common-law immunity on remand[10] which is now foreign sovereigns’ only option concerning criminal prosecution.
B. Justice Gorsuch’s Concurring Opinion
In contrast, Justice Gorsuch’s opinion—with Justice Alito joining—concurs only in part and maintains the FSIA’s language is broad enough to cover criminal prosecutions of foreign sovereigns.[11] The justice begins with the majority’s “common ground,” but the opinion shifts when he begins Halkbank’s FSIA analysis.[12] He determines Halkbank is statutorily entitled to FSIA immunity but that one of the statute’s exceptions to that immunity applies: the commercial activities exception.[13] Thus, Justice Gorsuch reaches the same conclusion as the majority, but he reaches it while maintaining the FSIA covers not only civil matters but also criminal.
To support that conclusion, Justice Gorsuch also takes a textualist’s approach. His strongest argument comes from the Court’s prior conduct in interpreting Congress’s statutorily limiting language.[14] The justice specifically wrote, “Normally, when Congress includes limiting language in one section of a law but excludes it from another, we understand the difference in language to convey a difference in meaning (expressio unius est exclusio alterius).”[15] He goes on to call out the majority’s reasoning as hypocritical stating, “Today, the Court does to § 1604 exactly what it recognizes we may not do to § 3231—grafting an atextual limitation onto the law’s unambiguous terms (in this instance, adding a “civil”-only restriction).”[16]
C. Conclusion
While both opinions portray straightforward reasoning, they also leave readers with many questions. One in particular stands out: what approach should courts take for their guidance in determining common law immunity? Options exist, but each provides little encouragement for a streamlined process. Historically, the judiciary depended on the Department of State’s “suggestions of immunity,” but with the passage of the FSIA that method creates a separation-of-powers problem. The courts could independently apply the common law immunity principles, but that would require tremendously complex interpretations of customary international law. With those problematic options in mind, it appears a legislative amendment to the FSIA that expands its immunity to cover criminal prosecutions is the easiest solution. Regardless, the judiciary will have difficulty moving forward without the proper guidance, creating issues for both the executive branch and the foreign sovereigns they prosecute.
[1] Türkiye Halk Bankasi A.S. v. United States, 598 U.S. 264, 267-68 (2023).
[3] H.R. No. Rep. 94-1487, at 6 (1976).
[4] Missouri v. People’s Republic of China, 2022 WL 2643516, at *10 (E.D. Mo. 2022). This is a section of my forthcoming paper, “The Federal Judiciary’s Double Standard: How the FSIA Deters Plaintiffs in Their Search for Justice.”
[5] Halkbank, 598 U.S. at 274.
[6] Id. at 275.
[7] Id. at 273.
[8] Id. at 274-75. See also, Samantar v. Yousuf, 560 U.S. 305, 323, 325 (2010).
[9] Id. at 280.
[10] Id. at 281.
[11] Id. at 281.
[12] Id.
[13] Id. at 282. A foreign sovereign will not receive immunity when its “action is based upon a commercial activity carried on in the United States . . .; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. 28 U.S.C. § 1605(a)(2).
[14] Halkbank, 598 U.S. at 284.
[15] Id.
[16] Id.
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