                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-3989
WEI YE, HAO WANG, DOES,
A, B, C, D, E, F, and others similarly
situated,
                                                Plaintiffs-Appellants,
                                  v.


JIANG ZEMIN and FALUN GONG
CONTROL OFFICE, a/k/a OFFICE 610,
                                               Defendants-Appellees.

                          ____________
           Appeal from the United States District Court for
          the Northern District of Illinois, Eastern Division.
            No. 02 C 7530—Matthew F. Kennelly, Judge.
                          ____________
      ARGUED MAY 27, 2004—DECIDED SEPTEMBER 8, 2004

  Before BAUER, MANION and KANNE, Circuit Judges.
   MANION, Circuit Judge. The appellants are practitioners of
Falun Gong, a spiritual movement of Chinese origin. Most
of the appellants are current or past residents of the People’s
Republic of China. In addition, two of the appellants are
United States citizens and a third is an alien resident of
Illinois. The appellants appeal from a decision of the United
States District Court for the Northern District of Illinois
dismissing their lawsuit against the former President of
China, Jiang Zemin, and an office of the Chinese Communist
2                                                       No. 03-3989

Party (the “Party”) allegedly established by Jiang for the pur-
pose of suppressing Falun Gong. We affirm.


                                  I.
  Jiang Zemin served as President of China for approxi-
mately ten years, from March 1993 to March 15, 2003. Dur-
ing part of his tenure as President, he also served as the
Secretary General of the Central Committee of the Chinese
Communist Party (the head of the Party). President Jiang
stepped down as head of the Party on November 15, 2002.
  Beginning in 1999, the Chinese government and the Party
                                             1
took steps to crack down on Falun Gong. Falun Gong,
formed in 1992 by a former Chinese soldier, Li Hongzhi,
“combin[es] traditional Buddhist teachings and predictions
about the end of the world with meditation and martial arts
discipline as a prescription for physical and spiritual
well-being. Falun Gong teaches that illness stems from evil
and that by following the principles of ‘truth, compassion
and forbearance,’ one can attain clairvoyance and other pre-
                       2
ternatural faculties.” The Chinese government and the
Party see things differently. They have denounced the move-
ment as a cult and have accused it of seeking to subvert or


1
  We accept, for present purposes, as true the appellants’ alle-
gations. We further note that the United States intervened below
only to assert President Jiang’s immunity and has not taken issue
with the veracity of the claims of the appellants. In its brief to this
court, the United States draws our attention to remarks of
President George W. Bush and State Department Reports con-
demning the types of practices alleged by the appellants.
2
  John Pomfret and Michael Laris, “China Outlaws Nonconformist
Spiritual Sect; Group Had Organized Protests Across Nation,”
Wash. Post, July 23, 1999, at A1.
No. 03-3989                                                      3
                                                                  3
overthrow the government and the Party’s grip on power.
According to at least one news report, President Jiang him-
self declared that suppressing Falun Gong was one of the
                                             4
“ ‘three major political struggles’ of 1999.”
  To that end, on June 10, 1999, President Jiang established,
as part of the Party’s apparatus, the Falun Gong Control
Office. The Office is known as “Office 6/10” after the date
of its creation. In July 1999, President Jiang issued an edict
outlawing Falun Gong. This edict was followed by mass
arrests, allegedly farcical trials, torture, forced labor, “re-ed-
ucation,” and the killing of members.
  The appellants filed this lawsuit against President Jiang
and Office 6/10 on October 18, 2002. The appellants’ com-
plaint, recites, inter alia, claims of torture, genocide, arbitrary
arrest and imprisonment, as well as other claims related to
the appellants’ freedom of conscience, movement, and
religion. The appellants argued that the district court had
jurisdiction to hear their case pursuant to the Alien Tort
Claim Act, 28 U.S.C. § 1350, as well as, in part, 28 U.S.C.
§§ 1343(4) and 1331.
   Because President Jiang was scheduled to be in Chicago
on October 22 and 23 on his way to visit with United States
President George W. Bush in Washington, D.C., the ap-
pellants moved ex parte for leave from the district court to
effect service on President Jiang (and by extension Office
6/10) while he was in Chicago. The district court granted
this motion and entered an order permitting service by de-
livery of a copy of the summons and complaint “to any of the
security agents or hotel staff helping to guard” President


3
    Id.
4
  John Pomfret, “China Girds For a Battle Of the Spirit; Ruling
Party Fears Religious Challenge,” Wash. Post, Jan. 10, 2000, at A1.
4                                                     No. 03-3989
      5
Jiang. The appellants contend that service was complete
when they delivered a copy of these documents to a Chicago
police officer and agents of the United States Secret Service
detail stationed at the hotel at which President Jiang was
staying in Chicago.
  Neither President Jiang nor a representative of the
Chinese government or Office 6/10 responded to the com-
plaint, and the appellants moved for an entry of default. The
United States, however, intervened pursuant to 28 U.S.C. §
517 and moved to vacate the service order or, in the alterna-
                                                            6
tive, to assert head-of-state immunity for President Jiang.
The United States further argued that President Jiang was
personally inviolable and, therefore, incapable of being


5
  We express some concern at the enlistment of agents of the
Executive Branch, particularly those charged with providing
security for President Jiang’s visit, to effectuate service. Our con-
cern is grounded in separation of powers principles as well as the
policy ramifications inherent in requiring a Secret Service agent
to serve simultaneously as a security guard for a foreign digni-
tary and a de facto process server. Given the outcome of this case
we need not thoroughly explore the matter, however, as the
problem should not recur.
6
  The United States included with its motion before the district
court a letter from William H. Taft, IV, Legal Adviser to the
Department of State to Robert D. McCallum, Jr., an Assistant
Attorney General with the Department of Justice. In that letter,
Taft stated that “[t]he Department of State recognizes and allows
the immunity of President Jiang from this suit.”
   Further, the United States’ “amicus” brief to this court appears
to be a collaborative effort of the State Department and the
Department of Justice. We take the statements in this brief
concerning the potential impact of the current suit to be more
than simply the advocacy position of the government. We regard
it as the official position of the Executive Branch.
No. 03-3989                                                   5

served in any capacity. Specifically, the government argued
that President Jiang could not be served as an agent of
Office 6/10.
  The district court accepted the United States’ assertion of
head-of-state immunity on behalf of President Jiang and
dismissed the appellants’ claims against him. The district
court rejected, however, the government’s argument of
personal inviolability. Instead, the district court found that
service of process on Office 6/10 could not be achieved
through President Jiang because the appellants had not
shown that President Jiang was either an agent or an officer
of Office 6/10. Further, the district court held that, even as-
suming service of process on Office 6/10 could be effectu-
ated through President Jiang, it lacked personal jurisdiction
to hear claims against it. The district court, therefore, dis-
missed the appellants’ complaint in its entirety. This appeal
followed.


                              II.
  The appellants raise three issues on appeal. First, they
argue that the district court erred when it accepted, as con-
trolling, the United States’ assertion of head-of-state immunity
on behalf of President Jiang. Second, the appellants argue
that the district court erred when it determined that Presi-
dent Jiang could not be served as an agent of Office 6/10.
Finally, the appellants argue that the district court erred
when it held that it lacked personal jurisdiction over Office
6/10.


A. Head-Of-State Immunity—Some Background
  The appellants’ first argument relates to the assertion by
the United States, which the district court took as disposi-
6                                                  No. 03-3989

tive, that President Jiang was immune from the appellants’
suit. The appellants argue that the actions President Jiang is
accused of amount to violations of “jus cogens” norms of
international law and that immunity may not be conferred
upon a person accused of violating these norms.
  The Supreme Court recognized the immunity of foreign
sovereigns from suits brought in United States courts nearly
200 years ago. In Schooner Exchange v. McFaddon, 11 U.S. (7
Cranch) 116 (1812), Chief Justice Marshall reasoned that
although “the jurisdiction of the United States over persons
and property within its territory ‘is susceptible to no
limitation not imposed by itself,’ . . . as a matter of comity,
members of the international community had implicitly agreed
to waive the exercise of jurisdiction over other sovereigns in
certain classes of cases, such as those involving foreign
ministers or the person of the sovereign.” Republic of Austria v.
Altman, 541 U.S. ___, slip op. at 9 (2004) (quoting McFaddon, 11
U.S. at 136). Following McFaddon, courts have been expected
to “defer[ ] to the decisions of the political branches—in
particular, those of the Executive Branch—on whether to
take jurisdiction over actions against foreign sovereigns and
their instrumentalities.” Verlinden B.V. v. Central Bank of
Nigeria, 461 U.S. 480, 486 (1983).
  For most of the next 165 years, the Executive Branch deter-
mined whether a foreign nation was entitled to immunity. The
practice during this period was that the State Department
would provide a court with a “suggestion of immunity.” On
reception of this “suggestion,” courts would dismiss a suit,
or any claims brought in a suit, against a foreign nation.
  In 1952, the State Department adopted the “restrictive”
theory of sovereign immunity. See Verlinden, 461 U.S. at 486-
87. “Under this theory, immunity is confined to suits
involving the foreign sovereign’s public acts, and does not
extend to cases arising out of a foreign state’s strictly
No. 03-3989                                                         7

commercial acts.” Id. at 487. The restrictive theory was often
honored in the breach: “On occasion, political considerations
led to suggestions of immunity where immunity would not
have been available under the restrictive theory.” Id.
   In 1976, Congress enacted the Foreign Sovereign Immuni-
ties Act of 1976 (the “FSIA”), 28 U.S.C. §§ 1602 et seq. As an
initial matter, the FSIA provides a foreign state with im-
munity from suit in courts of the United States or of any
state. 28 U.S.C. § 1604; Saudi Arabia v. Nelson, 507 U.S. 349,
355 (1993) (“Under the [FSIA], a foreign state is presumptively
immune from the jurisdiction of United States courts . . . .”).
Such immunity is subject, however, to international agree-
ments to which the United States was a party in 1976, as
well as certain exceptions set forth in the FSIA. Id. These ex-
ceptions codify the restrictive theory of immunity. The re-
sponsibility for determining whether an exception applies
is left to the courts. See United States v. Noriega, 117 F.3d
1206, 1212 (11th Cir. 1997) (“[The FSIA] codified the State
Department’s general criteria for making suggestions of
immunity, and transferred the responsibility for case-by-
case application of these principles from the Executive
Branch to the Judicial Branch.”). Insofar as a foreign state is
concerned, therefore, the pre-1976 practice of courts reflex-
ively deferring to the Executive Branch’s immunity determi-
nations has been eliminated.
  The FSIA does not, however, address the immunity of
foreign heads of states. The FSIA refers to foreign states, not
              7
their leaders. The FSIA defines a foreign state to include a
political subdivision, agency or instrumentality of a foreign

7
  In this way, the FSIA does not recognize (as McFaddon clearly
did) the classical conflation of a head of state with the state itself
(succinctly stated by King Louis XIV of France, “L’etat, c’est
moi.”).
8                                                 No. 03-3989

state but makes no mention of heads of state. 28 U.S.C. §
1603(a). Because the FSIA does not apply to heads of states,
the decision concerning the immunity of foreign heads of
states remains vested where it was prior to 1976— with the
Executive Branch. Noriega, 117 F.3d at 1212. (“Because the
FSIA addresses neither head-of-state immunity, nor foreign
sovereign immunity in the criminal context, head-of-state
immunity could attach in cases, such as this one, only
pursuant to the principles and procedures outlined in
[McFaddon] and its progeny. As a result, this court must
look to the Executive Branch for direction on the propriety
of Noriega’s immunity claim.”).


B. The Present Case
  In this case the Executive Branch entered a suggestion of
immunity. The appellants argue, however, that the Executive
Branch has no power to immunize a head of state (or any
person for that matter) for acts that violate jus cogens norms
of international law. We have explained jus cogens norms
before:
    A jus cogens norm is a special type of customary in-
    ternational law. A jus cogens norm “ ‘is a norm accepted
    and recognized by the international community of states
    as a whole as a norm from which no derogation is
    permitted and which can be modified only by a subse-
    quent norm of general international law having the
    same character.’ ” See Siderman de Blake v. Republic of
    Argentina, 965 F.2d 699, 714 (9th Cir. 1992) (quoting Vienna
    Convention on the Law of Treaties, art. 53, May 23,
    1969, 1155 U.N.T.S. 332, 8 I.L.M. 679). Most famously,
    jus cogens norms supported the prosecutions in the
    Nuremberg trials. See Siderman, 965 F.2d at 715 (9th Cir.
    1992) (“The universal and fundamental rights of human
No. 03-3989                                                   9

    beings identified by Nuremberg—rights against geno-
    cide, enslavement, and other inhumane acts . . .—are the
    direct ancestors of the universal and fundamental
    norms recognized as jus cogens.”).
Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1149-
50 (7th Cir. 2001).
   The appellants’ position, therefore, is that, in at least a
particular class of cases (those involving jus cogens norms),
a court cannot defer to the position of the Executive Branch
with respect to immunity for heads of states. The Supreme
Court has held, however, that the Executive Branch’s sug-
gestion of immunity is conclusive and not subject to judicial
inquiry. See Ex Parte Republic of Peru, 318 U.S. 578, 589 (1943)
(“The certification and the request that the vessel be de-
clared immune must be accepted by the courts as a conclusive
determination by the political arm of the Government that the
continued retention of the vessel interferes with the proper
conduct of our foreign relations.”) (emphasis added);
Compañia Española de Navegacion Maritime, S.A. v. The
Navemar, 303 U.S. 68, 74 (1938) (“If [a claim of immunity by
a foreign government] is recognized and allowed by the
Executive Branch of the government, it is then the duty of the
courts to release the vessel upon appropriate suggestion by
the Attorney General of the United States, or other officer
acting under his discretion.”) (emphasis added); see also Spacil
v. Crowe, 489 F.2d 614, 617 (5th Cir. 1974) (“The precedents are
overwhelming. For more than 160 years American courts
have consistently applied the doctrine of sovereign immu-
nity when requested to do so by the executive branch. More-
over, they have done so with no further review of the
executive’s determination.”); Isbrandtsen Tankers, Inc. v.
President of India, 446 F.2d 1198, 1201 (2d Cir. 1971) (“The
State Department is to make [an immunity determination]
in light of the potential consequences to our own interna-
10                                                    No. 03-3989

tional position. Hence once the State Department has ruled
in a matter of this nature, the judiciary will not interfere.”);
Rich v. Naviera Vacuba S.A., 295 F.2d 24, 26 (4th Cir. 1961)
(“[W]e conclude that the certificate and grant of immunity
issued by the Department of State should be accepted by the
court without further inquiry. We think that the doctrine of
the separation of powers under our Constitution requires us
to assume that all pertinent considerations have been taken
into account by the Secretary of State in reaching his con-
                                         8
clusion.”) (internal citations omitted).
  The appellants present their argument as one of inter-
national law—under customary international law, a state
cannot provide immunity to a defendant accused of vio-
lating jus cogens norms. Our first concern, however, is to
ascertain the proper relationship between the Executive and
Judicial Branches insofar as the immunity of foreign leaders
is concerned. The obligation of the Judicial Branch is
clear—a determination by the Executive Branch that a
foreign head of state is immune from suit is conclusive and
a court must accept such a determination without reference
to the underlying claims of a plaintiff. See Spacil, 489 F.2d at


8
  As the foregoing citations show, many cases concerned with
foreign sovereign immunity involve libel actions or other actions
involving commercial marine vessels rather than a head of state.
This distinction does not make a difference to the question at issue:
whether a suggestion of immunity by the Executive Branch is
dispositive. These authorities support the conclusive nature of the
Executive Branch’s determination of immunity with regard to
heads of state. Courts appropriately accept an immunity de-
termination as conclusive when it involves ships out of concern
that the court might otherwise interfere with the foreign policy
objectives of the Executive Branch. Clearly such concerns would
be greater when the suggested immunity involves a foreign
leader.
No. 03-3989                                                    11

618 (“[W]e are analyzing here the proper allocation of
functions of the branches of government in the scheme of
the United States. We are not analyzing the proper scope of
sovereign immunity under international law.”).
  Our deference to the Executive Branch is motivated by the
caution we believe appropriate of the Judicial Branch when
the conduct of foreign affairs is involved. Cf. Republic of
Mexico v. Hoffman, 324 U.S. 30, 35 (1945) (“[I]t is a guiding
principle in determining whether a court should [recognize
a suggestion of immunity] in such cases, that the courts
should not so act as to embarrass the executive arm in its
conduct of foreign affairs. ‘In such cases the judicial depart-
ment of this government follows the action of the political
branch, and will not embarrass the latter by assuming an
antagonistic jurisdiction.’ ”) (quoting United States v. Lee, 106
U.S. 196, 209 (1882)); Spacil, 489 F.2d at 619 (“Separation- of-
powers principles impel a reluctance in the judiciary to
interfere with or embarrass the executive in its constitu-
tional role as the nation’s primary organ of international
policy.”). The determination to grant (or not grant) immu-
nity can have significant implications for this country’s
relationship with other nations. A court is ill-prepared to
assess these implications and resolve the competing con-
cerns the Executive Branch is faced with in determining
whether to immunize a head of state. Spacil, 489 F.2d at 619
(“[T]he degree to which granting or denying a claim of
immunity may be important to foreign policy is a question
on which the judiciary is particularly ill-equipped to second-
guess the executive. The executive’s institutional resources
and expertise in foreign affairs far outstrip those of the
judiciary.”).
  Although our decision in Sampson was one of statutory
interpretation, we believe it is also instructive here. In Sampson
12                                                    No. 03-3989
                                                                    9
we held that the FSIA did not include an implied exception
to its general grant of sovereign immunity to foreign states
where a foreign state was accused of violating jus cogens
        10
norms. Id. at 1156. Because the FSIA contained no such
exception, Germany was immune from suit brought by a
survivor of Auschwitz in the Northern District of Illinois.
  Our interpretation of the FSIA confirmed that Congress
could grant immunity to a foreign state for acts that amounted
to violations of jus cogens norms. Just as the FSIA is the
Legislative Branch’s determination that a nation should be
immune from suit in the courts of this country, the immu-
nity of foreign leaders remains the province of the Executive
Branch. The Executive Branch’s determination that a foreign
leader should be immune from suit even when the leader is
accused of acts that violate jus cogens norms is established
by a suggestion of immunity. We are no more free to ignore
the Executive Branch’s determination than we are free to
ignore a legislative determination concerning a foreign state.
Cf. Hoffman, 324 U.S. at 35 (1945) (“It is . . . not for the courts
to deny an immunity which our government has seen fit to
allow, or to allow an immunity on new grounds which the
government has not seen fit to recognize.”). Pursuant to
their respective authorities, Congress or the Executive
Branch can create exceptions to blanket immunity. In such
cases the courts would be obliged to respect such excep-


9
   Section 1605(a)(1) of the FSIA provides an exception to a na-
tion’s sovereign immunity in cases where a “foreign state has
waived its immunity . . . by implication.”
10
  At least three other circuits have reached a similar conclusion.
See Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239,
244 (2d Cir. 1997); Princz v. Federal Republic of Germany, 26 F.3d
1166, 1173 (D.C. Cir. 1994); Siderman de Blake v. Republic of
Argentina, 965 F.2d 699, 719 (9th Cir. 1992).
No. 03-3989                                                   13

tions. In the present case the Executive Branch has recog-
nized the immunity of President Jiang from the appellants’
suit. The district court was correct to accept this recognition
as conclusive.


C. Service of Process on President Jiang to Reach Third Parties
  We turn next to Office 6/10. The appellants maintain that
service on Office 6/10 was complete when President Jiang
was served during his stay in Chicago. As recounted above,
the United States argues that President Jiang’s immunity
extends to service aimed not at him, but at a third party.
   The district court rejected the United States’ immunity
argument but, nonetheless, held that service on President
Jiang was insufficient to reach Office 6/10 because the
appellants had provided only conclusory evidence that
President Jiang was, at the time of service, an officer or
agent of Office 6/10. The district court also held that “even
if Jiang was an agent or officer of Office 6/10 and thus
capable of receiving service on its behalf, such service was
insufficient to confer personal jurisdiction over Office 6/10
because the Office is not subject to the jurisdiction of Illinois
courts.”
  Although the district court reached the correct result, it
erred when it rejected the United States’ argument concern-
ing the scope of President Jiang’s immunity. Because the
Executive Branch has recognized President Jiang’s immu-
nity from suit, President Jiang could not be used as an invol-
untary agent of the appellants to effect service on Office
6/10. We need not therefore consider whether President
Jiang was acting as an agent or officer of Office 6/10 or
whether the district court had personal jurisdiction over
Office 6/10.
14                                                  No. 03-3989

  We agree with the Executive Branch that its power to
recognize the immunity of a foreign head of state includes
the power to preclude service of process in that same suit on
the head of state even where that service is intended to
reach third parties.
  Recognizing the immunity of a head of state and preclud-
ing service of process on a head of state are motivated by
the same concern for the effective conduct of this nation’s
foreign affairs. As emphasized above, this responsibility is
left to the political branches of this government. The
Executive Branch has represented to this court that permit-
ting service of process is often viewed by foreign govern-
ments and their heads of state “as an affront to the dignity
of both the leader and the state.” The Executive Branch has
also indicated that “the potential for insult is the same,
regardless of whether the service relates to the visiting head
of state himself, or to service on the visiting leader in some
purported representational or agency capacity.” Finally, the
Executive Branch has indicated that “[s]uch attacks on the
dignity of a visiting head of state can easily frustrate our
President’s ability to reach this Nation’s diplomatic objec-
tives . . . .” The deference we extend the Executive Branch
with regard to its determination of immunity, see pages 8-13
supra, is equally appropriate here. The Executive Branch is
better equipped than this court or the district court to assess
the consequences for our foreign policy of permitting
service of process on visiting heads of state, and it is the
Executive Branch in its dealings with China that will
confront, in the first instance, the consequences of that
                  11
determination. Cf. Hellenic Lines, Ltd. v. Moore, 345 F.2d


11
  We want to emphasize the narrow reach of our holding. We are
not holding (and the United States did not argue) that Office 6/10
                                                    (continued...)
No. 03-3989                                                       15

978, 980-81 (D.C. Cir. 1965) (holding that the Ambassador of
Tunisia was not properly subject to service directed to Tunisia
after the State Department informed the court that “service
would prejudice the United States foreign relations and
would probably impair the performance of diplomatic
functions.”); see also Spacil, 489 F.2d at 619 (“[I]n the chess
game that is diplomacy only the executive has a view of the
entire board and an understanding of the relationship
between isolated moves. Will granting immunity serve as a
bargaining counter in complex diplomatic negotiations? Will
it preclude a significant diplomatic advance; perhaps a detente
between this country and one with whom we are not on the
best speaking terms? These are questions for the executive,
not the judiciary.”) (internal citation omitted).
  Also important to our decision is the treatment accorded
the President of the United States in his travels abroad. The
Executive Branch has stated that it would be a “great
offense if foreign states and their courts were to encourage
process servers to hound our President when he is abroad
to conduct important negotiations with his foreign counter-
parts.” Such concerns must weigh heavily in our determina-
tion that service of process should not be permitted on
foreign heads of state visiting this country in the circum-
stances of this case.
   The district court pointed to three factors when it rejected
the United States’ argument. First, the district court rea-
soned that service on a head of state where that service is
directed towards a third party does not implicate the jus-
tifications for inviolability and immunity to the same degree

11
   (...continued)
is entitled to immunity from this suit. That issue is not before this
court. We hold only that service on Office 6/10 could not be
effectuated by service on President Jiang.
16                                                No. 03-3989

as service on a head of state when that service is directed
towards the head of state himself. As we have just stated,
however, we believe the Executive Branch is better
equipped to make that determination.
  Second, the district court noted that “the service provi-
sions of the FSIA suggest that personal inviolability does
not present an absolute bar to service in an agency capac-
ity.” The district court reasoned that “[b]ecause the FSIA
does not foreclose the possibility that a diplomat may re-
ceive process as an agent, the statute lends weight to the
proposition that inviolability does not bar service under all
circumstances.”
  We are not concerned here, however, with “all circum-
stances” or whether there is an “absolute bar” to service of
process on a diplomat or a head of state. We are concerned
only with a narrow set of circumstances—whether a head of
state may be the subject of service directed at a third party
where the United States has recognized that head of state’s
immunity from suit in the action the service is related to, and
the Executive Branch has indicated that permitting service
would have a deleterious effect on the conduct of foreign
affairs. There may be circumstances where it is permissible
to serve a visiting head of state. For instance, the Executive
Branch may not choose to recognize the immunity of a
visiting head of state. In that case, service of process on the
head of state would be permissible to reach the head of state
himself and would, we suggest, be permissible where the
service of process is also aimed at a third party (assuming,
of course, an agency or similar relationship between the
head of state and the third party).
  The third factor cited by the district court is that “heads of
state may not be immune in all situations.” Citing
McFaddon’s discussion of the exceptions to the immunity of
foreign heads of state, see McFaddon, 11 U.S. at 145, the
No. 03-3989                                                  17

district court held that “[t]hese limited exceptions to im-
munity presuppose that a head of state is amenable to ser-
vice of process, even in instances when his presence in court
may be required. Service of process therefore cannot be seen
under all circumstances to be an affront to a head of state’s
inviolability.”
  The district court is correct that there are exceptions to the
immunity a head of state (as well as a foreign nation) is
granted in this country’s courts. As we have discussed above,
however, and the district court recognized elsewhere in its
opinion, the determination that these exceptions apply to a
                                                12
head of state is left to the Executive Branch. Likewise, the
determination that service in the circumstances of this case
would be detrimental to the Nation’s foreign policy should
be left to the Executive Branch.


                              III.
  In this case the Executive Branch has recognized President
Jiang’s immunity from the appellants’ suit. We are required
to defer to the decision of the Executive Branch. The Executive
Branch has also determined that service of process by the
appellants on President Jiang in order to reach an intended
co-defendant in the same suit could frustrate this Nation’s
diplomatic objectives. It is appropriate to defer to that
decision as well. Because we do so, service on Office 6/10
could not be effectuated through President Jiang. We need
not reach, therefore, the question of whether President Jiang
was, at the time of service, an officer or agent of Office 6/10
or whether the district court had personal jurisdiction over
Office 6/10.


12
  Under the FSIA, whether an exception applies is determined by
the Judicial Branch. As we have discussed, however, the FSIA
does not apply to heads of state.
18                                               No. 03-3989

  We conclude by stating that we are not unsympathetic
to the appellants’ claims. For the reasons stated above,
however, we cannot permit this suit to go forward. The
Executive Branch has stated it is working to persuade the
government of China to put an end to the human rights
violations it has inflicted on its people for more than half a
century. Success depends on diplomacy, not United States
courts.
                                                   AFFIRMED

A true Copy:
        Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                    USCA-02-C-0072—9-8-04
