Because of the unique facts underlying the present matter and the
substantial public policy issues implicated therein, the Court finds that
the Government's interests may be characterized as sufficiently strong to
sustain a motion to intervene.
First, it would be entirely untenable to assert that the Government's
interests in this matter are minimal. Rather, the importance of the
Government's interests here are confirmed by the procedural mechanism,
endorsed by statute and case law and implemented in this case, of
accepting a Suggestion of Immunity from the Government.*fn10 This
Court's acceptance of this procedural mechanism was an outright
recognition that the Government was not only interested in this matter
from a philosophical standpoint, but also that its interests were
inextricably linked to the controversy in such a way that the Court
should entertain a formal submission from the Government and, with
respect to some claims, accord great weight to its views. Thus, by virtue
of this procedural device, the interest analysis must begin with the
recognition of the Government's rightful place in this dispute.
Second, it is relevant that the Government has both specific and
general interests that overlap. The sequence of events leading up to the
Decision began with the service of process upon Mugabe and Mudenge.
Because all defendants failed to answer or respond in any way, Plaintiffs
moved for a default judgment, which the Court granted as to ZANU-PF. The
Government takes issue with that aspect of the Decision, claiming that
the service of process on Mugabe and Mudenge was defective for the
reasons discussed in Part I, supra. In light of these events, the
Government's interests are implicitly two-fold: the Government may be
said to have a specific interest in quashing the service of process on
Mugabe and Mudenge because of its purported interference with United
States foreign relations vis-a-vis Zimbabwe; and the Government may have
a broader interest, the one more clearly advanced by counsel, in
fashioning a rule of law that does not jeopardize international comity or
foreign relations with other visiting heads of state. Viewed this way,
both the specific and general interests provide a sound basis for
intervention for the limited purpose of appeal.
Finally, the Court notes that the Government's interests are not merely
sanctioned by statute, case law and public policy considerations. The
Government's right to be heard here has an additional constitutional
underpinning. The United States Constitution does not expressly or
exclusively grant authority to conduct foreign relations to any one
branch of the Government, but it is beyond dispute that under Article
II, section 2 and other statutory and common law provisions, the
Executive Branch, acting through its subsidiary agencies, has substantial
responsibilities with regard to this country's foreign relations. Taking
into account all of these factors, the Court finds that the unique
circumstances presented here and the Government's express and implied
interests support a basis for intervention.
As to the remaining criteria, the Court finds no substantial dispute.
The conduct of the named defendants, or lack thereof, leaves no doubt as
to the inadequacy of the
representation of their interests. Because defendants have deliberately
chosen to ignore the Plaintiffs' grievances in this action, the service
of process upon them and the motion for judgment against them, the only
opposition to Plaintiffs' claims has come from the Government.
Furthermore, in light of the Court's discussion of substantial interests
above, the Court also finds that the Government is in fact situated in
such a way that the ultimate disposition of this case could affect those
Government interests. A decision affecting, as perceived by the
Government, the treatment of heads of state or foreign ministers visiting
the United States, particularly under the circumstances present here, may
have some potential to implicate United States foreign relations in a
manner that the Government could legitimately seek to mitigate by appeal
of this Court's Decision.
Having established the four criteria set forth in Butler, the Court
grants the Government's motion to intervene pursuant to Rule 24(a)(2)
for the limited purpose of appeal.
CONCLUSION AND ORDER
For the reasons discussed above, it is hereby
ORDERED that the Government's motion for reconsideration of the Court's
Decision and Order dated October 30, 2001 is DENIED; and it is further
ORDERED that the Government's motion to intervene for the limited
purpose of appealing the Decision is GRANTED.