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Cablegate: Avian Influenza Lawsuit Against Usg: Request For

VZCZCXRO3050
OO RUEHCHI RUEHCN RUEHDT RUEHHM
DE RUEHJA #1656/01 2460931
ZNR UUUUU ZZH
O 020931Z SEP 08
FM AMEMBASSY JAKARTA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 9949
INFO RUEHZS/ASSOCIATION OF SOUTHEAST ASIAN NATIONS PRIORITY
RUEHGV/USMISSION GENEVA PRIORITY 7818
RUEHBY/AMEMBASSY CANBERRA 2979
RUEHKA/AMEMBASSY DHAKA 1216
RUEHNE/AMEMBASSY NEW DELHI 2175
RUEHKO/AMEMBASSY TOKYO 2441
RUEHWL/AMEMBASSY WELLINGTON 3016
RUEHHK/AMCONSUL HONG KONG 2926
RUEHPT/AMCONSUL PERTH 1090
RHMFIUU/BUMED WASHINGTON DC
RHHJJPI/USPACOM HONOLULU HI
RHHJJPI/PACOM IDHS HONOLULU HI
RUENAAA/SECNAV WASHDC
RUEKJCS/SECDEF WASHDC
RUEAWJB/DEPT OF JUSTICE WASHDC
RULSAAV/NAVMEDRSCHCEN SILVER SPRING MD
RHEHNSC/NSC WASHDC
RUEAIIA/CIA WASHDC
RHEFDIA/DIA WASHINGTON DC

UNCLAS SECTION 01 OF 02 JAKARTA 001656

SENSITIVE
SIPDIS

DEPT FOR P, EAP, EAP/MTS, EAP/MLS, EAP/RSP, G/AIAG,
OES/IHA, L, L/DL FOR DICKERSON
USAID FOR ANE/CLEMENTS AND GH/CARROLL
DEPT PASS TO HHS/WSTEIGER/ABHAT/MSTLOUIS AND HHS/NIH
DEPT PASS TO USDA/FAS/OSTA BRANT, ROSENBLUM
DOJ FOR OFL/HOLLIS
DOJ FOR OFL/HERRUP
GENEVA FOR WHO/HOHMAN
NSC FOR E.PHU
SECDEF FOR USDP/ISA/APSA D.WALTON

E.O. 12958: N/A
TAGS: PGOV TBIO KFLU KLIG ID
SUBJECT: AVIAN INFLUENZA LAWSUIT AGAINST USG: REQUEST FOR
GUIDANCE ON COURT APPEARANCE

REF: A. USDOJ-JAKARTA EMAILS
B. STATE 86555
C. JAKARTA 1504 AND PREVIOUS

JAKARTA 00001656 001.2 OF 002


1. (U) This message is Sensitive but Unclassified--Please
handle accordingly.

2. (U) This message provides recommendations as requested in
REF A and requests Department,s guidance by September 10.
Please see para 10 for action request.

3. (SBU) SUMMARY: Legal proceedings are scheduled to begin
in the Central Jakarta District Court on September 17 in the
avian-influenza lawsuit against the USG and the World Health
Organization (WHO). Mission recommends that USG appear in
court on September 17 via local counsel to request that the
suit be dismissed on the grounds of sovereign immunity. A
key contact has told us that the Indonesian Department of
Foreign Affairs is prepared to support such a request.
Mission requests front channel guidance by September 10 and
authorization for the Ambassador to grant local counsel the
power of attorney. END SUMMARY.

RECOMMENDATION REGARDING APPEARANCE

4. (SBU) On August 13, Mission sent a Diplomatic Note to the
Indonesian Department of Foreign Affairs (DEPLU) asserting
sovereign immunity, as instructed by Washington (REF B).
Following the assertion of immunity, the Department of
Justice (DOJ) requested Mission's recommendation as to
whether USG, through locally hired counsel, should appear and
offer legal defense, in the event DEPLU is unable to
intervene on our behalf.

5. (SBU) During an August 27 meeting with the Ambassador,
Frans Winarta, the DOJ-hired local counsel, explained that if
the USG, or its agent, does not appear at the September 17
proceeding, the court could regard the absence of the
defendant as the USG,s acknowledgment of the plaintiff,s
claim and render a default judgment. Winarta recommended
that he be authorized to appear at the September 17
proceeding to assert USG sovereign immunity and other grounds
for dismissal. In order to assert sovereign immunity at this
proceeding, Winarta will require the power of attorney to act
on behalf of the USG in an Indonesian court.

6. (SBU) The Indonesian courts operate on a "three strikes,
you're out" rule under which a court does not issue a default
judgment until the defendant has received three summons and
failed to appear for all three summons. According to
Winarta, the USG would be considered to have received two
summons so far: to appear on April 22 and May 13. The
September 17 court date would constitute a third strike under
Indonesian legal practice. According to Winarta, the
validity of the service of those summons might have no
bearing on the count, in the court's view.

7. (SBU) On September 2, DCM, Poloff and DOJ Resident Legal
Advisor (RLA) met with Arif Havas Oegroseno, Director of
DEPLU's Office of Political, Legal and Regional Treaties.

JAKARTA 00001656 002.2 OF 002


Oegroseno stated that he would send Mission's diplomatic note
asserting sovereign immunity to the court and would consider
appending "a statement of interest" from DEPLU recognizing
USG's immunity. Additionally, he would also have an informal
conversation with the court. Oegroseno stressed that the
court must conduct a proceeding on September 17 in order to
dismiss the case.

8. (SBU) Winarta recommends avoiding a default judgment, as
such a judgment could be seen as a lack of respect for the
Indonesian courts and generate negative publicity toward the
United States.

INFORMATION FROM WHO

9. (SBU) Embassy officers met with representatives of the
World Health Organization (WHO), which is the co-defendant in
the suit, in Jakarta on August 27. According to the Jakarta
WHO office, no United Nations (UN) agency has ever appeared
in court in Indonesia or any other country. WHO's note
verbale had requested that DEPLU inform the courts of WHO's
immunity. However, WHO had not received any acknowledgment
of the note and was not taking any active steps to request
DEPLU intervene on WHO's behalf. WHO maintained that it had
not been properly served and that it was immune. DEPLU
contacts in Oegroseno's office told Embassy officers on
September 2 that their office had not received the WHO note
asserting immunity.

ACTION REQUEST

10. (SBU) Mission recommends that local counsel attend the
court proceedings on September 17 and assert the USG's claim
of sovereign immunity. Mission also requests authorization
for the Ambassador to sign a letter of power of attorney
allowing Winarta, as local counsel, to appear in court on
behalf of the USG. Finally, Mission requests the
Department's guidance as to which specific points to make in
its claim of sovereign immunity.

HUME

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