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