Page:Türkiye Halk Bankasi A.Ş. v. United States.pdf/22

Rh sovereign is not entitled to immunity when “the action is based upon” certain “commercial activity” in or affecting the United States. In this case, the indictment sufficiently alleges that Halkbank has engaged in just those kinds of commercial activities. See No. 15 Cr. 867 (SDNY, Oct. 1, 2020), App. to Pet. for Cert. 36a–38a. Of course, this case comes to us on a motion to dismiss the indictment, and the question of immunity may be revisited as the case proceeds. But for now, nothing in the law precludes this suit, just as the Second Circuit held.

That the FSIA tells us all we need to know to resolve the sovereign immunity question in this case can come as no surprise. This Court has long acknowledged that “the [FSIA] must be applied by the district courts in every action against a foreign sovereign.” Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 493 (1983). As we have put it, “any sort of immunity defense made by a foreign sovereign in an American court must stand on the Act’s text. Or it must fall.” Republic of Argentina v. NML Capital, Ltd., 573 U. S. 134, 141–142 (2014). It’s a rule that follows directly from the statutory text because “Congress established [in the FSIA] a comprehensive framework for resolving any claim of sovereign immunity.” Republic of Austria v. Altmann, 541 U. S. 677, 699 (2004).

Despite all this, the Court declines to apply the FSIA’s directions governing foreign sovereign immunity. It holds that the statute’s general immunity rule in §1604 speaks only to civil disputes. Any question about a foreign sovereign’s immunity from criminal prosecution, the Court insists, must therefore be resolved under common-law principles. , . In aid of its conclusion, the Court offers three principal arguments. But to my mind, none packs the punch necessary to displace the plain statutory text.