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Analysis: An elusive immunity issue


With no dissent, the Supreme Court on Tuesday removed one potential immunity shield for foreign officials when sued in U.S. courts over claims that they carried out or allowed human rights abuses to occur in other countries.  A 1976 law that gives foreign governments’ immunity to many lawsuits in American courts, the Court declared, does not provide immunity to lawsuits aimed at current or former officials of foreign nations.  (The only disagreement among the Justices in the case was over the uses of legislative history to prove legal points.)

The Court’s ruling left open, without resolution at this point, the possibility that foreign officials may yet be able to assert some form of immunity to claims about atrocities committed overseas.  That will have to be sorted out first in the lower courts, the Court said in deciding Samantar v. Yousuf (08-1555), a case that grew out of the turmoil in the African nation of Somalia.

The case involves Mohamed Ali Samantar, a former high official of the Somali government who now lives in Virginia.  He was sued by a group of former Somali citizens or their families, asserting that Samantar and his military aides conducted a reign of terror among members of the Isaaq clan in Somalia during the 1980s.   Samantar was sued under the Alien Tort Statute, which dates to 1789, and the Torture Victim Protection Act of 1991, which authorize some lawsuits in U.S. courts for human rights abuses abroad.  Samantar argued in response to the lawsuits that he had legal immunity on his own, as a former official of Somalia, and on behalf of his government as its agent for any action she took while in office.  The Fourth Circuit Court rejected his immunity claim.

Justice John Paul Stevens, writing for the Court, stressed the narrowness of the ruling, saying that the Court was only deciding that such an immunity claim was not even covered by the Foreign Sovereign Immunities Act of 1976.  When Congress wrote that law, to codify an official U.S. practice of limiting foreign nation’s immunity to U.S. lawsuits, it uttered not “so much as a word spelling out how and when individual officials,” as opposed to foreign governments, would be covered by the legal shield.

While Samantar claimed that he also had immunity under traditional law not codified in a statute (that is, in the common law) or in customary international law, the Court said Congress did not incorporate either of those concepts in the 1976 Act.   Whether they would now provide immunity to the former Somali official, Stevens wrote, was beyond the scope of Tuesday’s ruling; Samantar can now make those claims, and offer any other legal defenses he may have, in the District Court when the case returns there.

The main opinion relied both on the language of the Act as it came from Congress, as well as on the legislative history as Congress considered the Act, and on the state of international law at the time the Act was adopted.   Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas each objected to Stevens’ reliance on the use of legislative history, so each wrote separately; all of them, however, supported the result — denying Samantar immunity under the 1976 law.

In discussing the possibility that Samantar may have a form of immunity under the common law, the Court, while not deciding that, used language that might point in both directions for lower courts in considering that specific assertion.  On the one hand, the Court said that there is an argument that the common law gave individual officials the same immunity that foreign governments themselves had, when the officials acted on behalf of such a government.  On the other hand, the Court said there is an argument that an individual official would have immunity only if a lawsuit against such an individual would actually impose some obligation on the foreign government.

But, Justice Stevens said, the Court was not accepting either argument at this point.  The opinion discussed those theories only in the context of saying that neither one of them justified finding immunity in the 1976 Act dealing with foreign governments’ immunity to U.S. litigation.

[Disclosure:  Akin Gump and Howe & Russell represented the respondents in the case, but the author of this post operates independently of those firms.]