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Overseas reach of anti-torture law

At 10 a.m. Wednesday, the Supreme Court will hold one hour of oral argument in Samantar v. Yousuf, et al. (08-1555).  Arguing for Mohamed Ali Samantar will be Shay Dvoretzky of Jones Day in Washington. Representing the former Somalis suing Samantar will be Patricia A. Millett of Akin Gump Strauss Hauer & Feld in Washington, sharing 10 minutes of time with the U.S. government, represented by Deputy Solicitor General Edwin S. Kneedler.


Amid rising claims around the world of human rights abuses, the Supreme Court examines whether U.S. law permits lawsuits in U.S. courts against present or former officials of foreign governments who are accused of torture or other atrocities in foreign lands.  The case seeks to clear up a conflict among lower courts on the scope of a law dating back to 1789 — the Alien Tort Statute — as well as an anti-torture law passed in 1991, the Torture Victims Protection Act. The federal government has entered the case to argue against blanket legal immunity for such officials, while seeking to keep a major role for the Executive Branch in monitoring and perhaps limiting such lawsuits.


In Somalia, a strife-torn country in the Horn of Africa, the government under dictator Maj. Gen. Mohamed Siad Barre collapsed in 1991.  Most of the time since then, Somalia has had no functioning government or central authority.  With the overthrow of the Barre regime, most high officials of the government fled the country.  The Barre regime has been accused by human rights activists of alleged torture of native Somalis, especially members of a specific clan that was targeted for severe abuse, including torture, rape and other atrocities.  After some of those Somalis had come to the U.S., they discovered that a former high-ranking official of the regime was now living in Virginia.

That was Mohamed Ali Samantar, who had served in the Barre regime in the 1980s and 1990s as first vice president, prime minister and defense minister.  The expatriate Somalis claimed that Samantar was directly responsible as a member of the regime for the harms done to their clansmen — themselves and relatives tortured or killed during the Barre years.  Bashe Abdi Yousuf, a member of the Isaaq clan, claimed that agents of the government subjected him to electric shock and other torture after accusing him of opposing the regime.  Another member of that clan, a student identified only as Jane Doe, claimed she was repeatedly tortured, sexually mutilated, raped and beaten.  Another clansman identified only as John Doe II, a former member of the Somali army, survived a firing squad mass execution by hiding under a pile of bodies.

They, along with relatives of other Somalis allegedly tortured or killed by the regime, sued Samantar personally for money damages, in federal District Court in Alexandria, Va., relying on the Alien Tort Statute, which gives U.S. District Courts authority to hear any civil action by an alien for a tort committed overseas in violation of the law of nations or of a U.S. treaty, and the Torture Victim Protection Act, which supplies a specific basis for an ATS lawsuit, making those responsible for torture or killing liable for damages in U.S. courts when filed by victims or their family members.

A federal District judge held up the case while waiting to see if the State Department would enter the case to take an Executive Branch position on whether Samantar had immunity from the lawsuit.  After waiting two years for a response, and getting none, the judge went ahead and ruled.  She found that the Foreign Sovereign Immunities Act, a 1976 law barring lawsuits in U.S. courts against a “foreign state” and an agency or “instrumentality” of a foreign state, gave Samantar immunity as a former official of a “foreign state.”

The Fourth Circuit Court reversed, and held in general that present or former officials of foreign states were not immune; the Act, it concluded, was not written to protect individuals.  But, even if the Act did protect current officials, the Circuit Court added, it did not insulate former officials for their prior official acts.  It ordered the case returned to District Court to consider Samantar’s other claims of immunity.   Samantar then took the case on to the Supreme Court.

Petition for Certiorari

Samantar, in a petition filed in June 2009, asked the Supreme Court to grant him immunity from the lawsuit, based solely on the Foreign Sovereign Immunities Act.  His first question posed the immunity claim on the theory that any actions he took were in his official capacity, thus allowing him to share in the foreign state’s immunity.  In the second question, Samantar claimed immunity as a former official at the time the lawsuit was filed, based on acts he allegedly took in his official capacity.

The petition contended that the federal appeals courts were divided on the issue, with the Second, Fifth, Sixth, Ninth and D.C. Circuit Courts extending FSIA immunity to foreign officials, while the Fourth and Seventh Circuits had denied such immunity.   The petition argued that the Fourth Circuit decision “threatens to open the floodgates to claims concerning extraterritorial conduct by foreign nations.”   The exposure of present or former foreign officials to lawsuits in U.S. courts, it added, “threatens to eviscerate FSIA altogether by allowing plaintiffs to obtain federal jurisdiction over virtually any action by a foreign state, simply by suing the responsible officer instead of the state itself.”

The Somali clan members and their relatives countered that the Fourth Circuit was the first, and so far the only, federal court to have decided whether — assuming immunity for government officials — that immunity was lost after they had left their official positions.  Noting that the U.S. State Department had “remained studiously silent” toward the lawsuit for two years, the Somalis asserted that the case “does not strongly implicate the usual concerns that animate the doctrines of governmental and sovereign immunities — international comity and the United States’ ability to conduct foreign policy.”

Without asking the U.S. government for its views, and thus apparently relying on the split in the lower courts, the Supreme Court granted review on Sept. 30 after the Justices’ initial pre-Term Conference.

Merits Briefs

The simple fact, addressed in the two sides’ main briefs on the merits, is that the FSIA says nothing, either way, about whether Congress intended to provide an immunity shield for individuals.  That fact strongly influenced the content of the briefs, with Samantar making mainly policy-based arguments, and the Somalis relying on the text’s omission of individuals as the strongest clue to Congress’s intent.

Samantar’s brief contended that the 1976 law was intended to embrace immunity not only for foreign nations as such, but for those parts of their government that act on behalf of the state.  The twin objectives of the Act — to promote comity among nations and to ensure reciprocal treatment overseas for U.S. interests — can only be served, he argued, by widening the concept of foreign state to include entities through which such a state actually operates.  Any lawsuit against a present or former official, it asserted, must be understood as a suit against the foreign government.

If one finds ambiguity in the wording of the Act’s immunity grant, the Samantar brief went on, it is overcome by reference to the common law as it existed before Congress passed FSIA.  The understanding of the common law was that, acting on behalf of the state, an official shared the immunity that the state itself enjoyed, it contended.

The brief also found confirmation for individual officials’ immunity in laws that Congress passed after FSIA in 1976.  In 1996, it noted, Congress took away the immunity of foreign states that sponsored terrorism, and made clear that this withdrawal applies to officials.  That approach was solidified by a 2008 law, the brief said.  Those two enactments, it concluded, would not have been necessary if FSIA had not conferred immunity on officials.

Since an official’s acts are necessarily the acts of a state when undertaken, the brief went on, the proper timing to judge immunity is when the official took those actions.  Thus, if an official has left the foreign government by the time he is sued, the lawsuit is still an attack on official acts, and thus on the foreign state, it argued.

Finally, the Samantar brief said that taking away FSIA immunity for officials would not leave foreign officials, present or former, with any real protection, under the common law — a potential that the Fourth Circuit implied might exist, although it did not rule on that, referring it back to the District Court.  Resorting to a regime of common law immunity would revive the pre-FSIA diplomatic pressures for recognizing immunity on an individual basis, thus resulting in a lack of uniformity, it argued.

Relying on the FSIA’s silence about individual officials, the Somali expatriates’ merits brief said that Congress had no intention of enlarging immunity beyond a foreign state and its governmental agencies.  That gap in the law’s immunity grant, the brief went on, cannot be filled by a judicial supplement.   Since it is constitutionally a matter for the political branches to decide upon immunity for foreign officials, as part of their management of foreign policy, the only immunity is that which those branches explicitly conferred: that is, on states as states, the brief asserted.

If the Court were inclined to enlarge the immunity grant to cover officials, too, the Somalis contended, that would open a plethora of questions about the type and breadth of immunity, who is eligible for it, what limitations or conditions attach to it, when it is triggered and when it ceases, and whether executives of government-owned corporations were immunized.  “Every one of those decisions,” it added, “is laden with diplomatic-relations cosnequences that should make the Court wary of stepping beyond where the statutory text treads.”

The FSIA, the expatriates’ brief asserted, did not displace a series of specialized immunity grants that vary with different categories of foreign officials.  Congress had no intention of displacing those, it suggested.

As a final, broad-gauged plea, the Somalis’ brief stressed the importance of respecting the decision of Congress and the Presidency to deal with the foreign policy implications of immunity from lawsuits.  It noted that those other parts of the government have denied a safe haven in the U.S. courts for foreign officials “who engage in torture and killing.”  Samantar’s personal concerns about potential diplomatic consequences of narrowing FSIA immunity, the brief said, cannot displace the considered judgment of the political branches.

Whatever reticence kept the Bush Administration from taking any role in the lawsuit against Samantar has ceased with the Obama Administration.  It has directly entered the case as an amicus generally rejecting Samantar’s immunity claim, even while staking a strong claim to an Executive prerogative to shape the development of foreign officials’ immunity.

Its brief opened with a strong condemnation of “grave human rights abuses of the kind alleged” in this case, and stressed the foreign policy interest in promoting safeguards for human rights.

On the merits, the government brief is more nuanced than that of the Somalis.  Although arguing that FSIA’s silence works against any immunity grant for foreign officials directly under FSIA,  it went on to allow for the possibility that the Court might opt to read such an immunity into FSIA.  If the Justices were to do so, it suggested, it should leave a wide range of discretion for Executive officials to determine who is eligible for such immunity, and who is not.

“It is unlikely that Congress, in enacting the FSIA, intended to divest the Executive of the ability to evaluate complex considerations” of the kind that would have to be taken into account in judging whether any particular foreign officials — like Samantar — deserved immunity, the brief said.  For example, for Samantar himself, the brief said the government would consider the fact that he now lives in the U.S., would examine the nature of the atrocities he is accused of condoning or authorizing, would analyze the impact of Congress’s withdrawal of immunity for sponsors of torture and kiling, and would weigh the significance of the fact that there is now no recognized government in Somalia that could say whether Samantar acted in an official or personal capacity.

In any event, weighing whether Samantar himself is entitled to immunity, the government brief said, is beyond the scope of what the Court must decide at this stage, and should be left for lower courts to examine in the first instance, along with any other claims of immunity that Samantar might assert.

Samantar has gained the support in the case of a group of former U.S. attorneys general as amici, arguing that the absence of immunity in such cases will hamper U.S. foreign policy, by groups of pro-Israel organizations and the Anti-Defamation League, expressing concern about potential lawsuits growing out of armed conflict in the Mideast, and by the Saudi Arabian government.  The Anti-Defamation League, urging no specific outcome, joined in the case to suggest some boundaries on such lawsuits.   The Somali clansmen drew the support of a host of human rights and anti-genocide organizations, international law professors and academics specializing in Somali history and affairs, a former Somali foreign minister, three members of Congress, and retired military officers.


Given that the Act says nothing explicit about the individual official’s immunity question, that could be conclusive if the Court makes up its mind solely on the basis of the actual language.  The Court, of course, could look beyond the bare text, but that is a mode of interpretation that is not popular with some of the Justices.  Nor is the idea of adding to the scope of a law by judicial creativity.

If the Court, however, is prepared to take into account policy considerations, the position that the federal government has now placed before the Court is likely to be strongly influential.  This is a Court that tends, most of the time, to defer to the Executive Branch on foreign policy considerations, and there are few diplomatic issues more fraught with complication than whether U.S. courts will be opened to damage lawsuits against foreign officials.   The government has made a strong plea that, whatever scope the Court finds FSIA to have, it should leave much to the discretion of the Presidency and Congress working together to manage this aspect of the nation’s foreign relations.