Issues
Whether the Foreign Sovereign Immunities Act applies to government officials acting in their official capacities, and if so, whether the individual retains that immunity after he or she is no longer an official of a foreign state.
Numerous plaintiffs filed claims against Mohamed Ali Samantar, the former Prime Minister and Minister of Defense of Somalia, alleging that he was personally liable for a systematic use of torture and killing of civilians by Somali intelligence agencies during the 1980s. The district court found that Samantar was immune to these charges under the Foreign Sovereign Immunities Act (“FSIA”) and dismissed the case. The Fourth Circuit Court of Appeals reversed, holding that the statutory language of FSIA does not cover either current or former government officials. In determining the scope of the FSIA as it relates to individuals, the Supreme Court will have an opportunity to clarify the language of the statute and resolve ambiguities between the FSIA and other immunity statutes. The decision could have a major impact on United States international relations by altering the immunity enjoyed by U.S. officials abroad and influencing the number of international claims in U.S. courts.
Questions as Framed for the Court by the Parties
1. Whether a foreign state's immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state. ??
2. Whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual's former capacity as an official acting on behalf of a foreign state. ?
Facts
Somali government agents, including the National Security Service (“NSS”) and the military police, allegedly subjected disfavored Somali clans and government opponents to widespread, systematic use of torture, arbitrary detention, and extrajudicial killing. See Yousuf v. Samantar, 552 F.3d 371, 373–74 (4th Cir. 2009). During these alleged acts, Petitioner, Samantar, served as Somalia’s Minister of Defense from January 1980 to December 1986, and as Prime Minister from January 1987 to September 1990 during the regime of Mohamed Siad Barre. See Id. at 374. The Plaintiffs here claim that the military government perceived the prosperous and well-educated Isaaq clan as a threat, and, as such, proceeded to adopt measures to hurt the clan politically and economically. See id. at 373.
Plaintiff Bashe Abdi Yousuf, a member of the disfavored Isaaq clan, claims that NSS agents abducted him and tortured him by using electric shock and the “Mig,” a torture method through which Yousuf’s hands and feet were bound together in the air behind him and a heavy rock was placed on his back. See Samantar, 552 F.3d at 374. Plaintiff Jane Doe, another Isaaq clan member, alleges she was abducted by NSS agents, repeatedly tortured and raped, beaten until she could not walk, and was placed in solitary confinement for three and a half years. See id. Plaintiff John Doe II, an Issaq clan member, alleges that in 1988 he was arrested with other Somali soldiers who were also part of the Isaaq clan and was shot in a mass execution style. See id. Doe II survived the shot and hid under a pile of bodies until he could escape. See id. The other Plaintiffs are pursuing claims on behalf of the estates of family members who were allegedly killed by government agents. See id. Plaintiff Aziz Mohamed Deria alleges that soldiers tortured and killed his father and brother because of their connection with the Isaaq clan. See id. Plaintiff John Doe I, an Isaaq clansman, alleges that his two brothers were abducted and executed by government forces. See id.
The Plaintiffs brought this action under the Torture Victim Protection Act of 1991 (“TVPA”) and the Alien Tort Statute (“ATS”), seeking to impose liability and recover damages from Defendant Mohamed Ali Samantar for the alleged acts under a theory of command responsibility, arguing that because Samantar knew, or should have known, about the alleged atrocities, and he nonetheless allowed them to happen, he gave his tacit approval to the atrocities that occurred during his time as a government official. See Samantar, 552 F.3d at 373. The Alien Tort Statute gives district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. The Torture Victim Protection Act provides that an individual who acts under the authority of any foreign nation and subjects someone to torture or extrajudicial killing is liable in a civil action for damages to the victim. See 106 Stat. 73 § 2(a).
Samantar moved to dismiss the action against him, arguing that he was entitled to immunity under the Foreign Sovereign Immunities Act (“FSIA”). See Samantar, 552 F.3d at 375; 28 U.S.C. §§ 1602–1611. The FSIA provides that a foreign state is immune from the jurisdiction of the United States. See 28 U.S.C. § 1604. The District Court of the Eastern District of Virginia agreed, finding that individuals working under the state are included in the term “foreign state,” and the court dismissed the action against Samantar for lack of subject matter jurisdiction. See Samantar, 552 F.3d at 373. However, the Court of Appeals for the Fourth Circuit found that the FSIA does not apply to individuals, and therefore Samantar is not entitled to immunity under it. See id. The Fourth Circuit therein reversed the District Court’s dismissal of the claim, and returned the matter to the District Court for further proceedings to determine Samantar’s potential liability for the atrocities. See id. Samantar petitioned for writ of certiorari, and it was granted on September 30, 2009. See Samantar v. Yousuf, 130 S.Ct. 49 (2009); Petition for Certiorari.
Analysis
The Statute at Issue
The Foreign Sovereign Immunities Act (“FSIA”) provides that “a foreign state shall be immune from jurisdiction” in courts of the United States. See28 U.S.C. § 1604. Under the FSIA, a “‘foreign state’ includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state.” See28 U.S.C. § 1603(a). The statute defines “an agency or instrumentality of a foreign state” as any entity that is a separate legal person, is an “organ of a foreign state,” and is not a United States citizen.See28 U.S.C. § 1603(b).
Does the FSIA Apply to Individuals?
i. The Definition of “Foreign State”
Under the FSIA, a foreign state “includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state” for the purposes of applying immunity in U.S. Courts. See28 U.S.C. § 1603(a). Samantar argues that the use of the word “includes” shows that the definition is meant to be simply illustrative and that a “foreign state” expands beyond just the examples listed in the statute. See Brief for Petitioner at 22–23. Samantar further argues that a government official acting in his official capacity is an “agency” of a state because he has acted on behalf of the state. See Id. at 24. Therefore, he claims the suit against Samantar is really a suit against Somalia, which is strictly forbidden under FSIA. See Id.
The Somali plaintiffs counter that, in both legal and non-legal dictionaries, a “state” is defined solely as a political body, and does not include individuals. See Brief for Respondents at 13–14. The Somali plaintiffs challenge Samantar’s interpretation of “includes,” arguing that it was used in FISA to clarify that political subdivisions and some corporations received immunity, and that it is not designed to leave room for Samantar’s expansive definition. See Id. at 20. The Somali plaintiffs also claim that the Court should be suspicious of statutory readings, such as that suggested by Samantar, which create a “privileged class” that can escape liability for alleged wrongs with impunity. SeeId. at 48.
The Somali plaintiffs argue that Samantar’s interpretation of the FSIA would render other portions of the act overbroad and repetitive: for example, the tort damages portion of the FSIA waives immunity for conduct of “that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.” See Id. at 15. Because the tort damages portion uses the same definition of “foreign state” under the section providing the definitions of the act, the Somali plaintiffs point out that if “foreign state” were indeed interpreted to include foreign officials, as Samantar suggests, then this section of the act would be completely redundant. See Id. The Somali plaintiffs also contend that Samantar’s definition would undermine the Torture Victim Prevention Act (“TVPA”), which was passed after the FSIA. See Id. at 18. The TVPA authorizes suits against individual foreign officials for their use of torture and killing in their official capacity. The Somali plaintiffs argue that Congress clearly focused on individual liability, yet Samantar’s reading would grant immunity for the officials targeted by the TVPA. See Id. at 19.
Samantar makes a similar argument, claiming that the Somali plaintiffs’ interpretation would render superfluous the portion of the FSIA that prevents immunity for torture. See Brief for Petitioner at 41. That portion waives immunity for foreign states as well as officials working on behalf of the state. See 28 U.S.C. § 1605A. Samantar argues that, if FSIA did not apply to individuals, then having a torture exception waiving immunity for individuals would be unnecessary. See Brief for Petitioner at 42.
ii. International Law on the Sovereign Immunity of Individuals
Samantar asserts that FSIA was a codification of the common law of foreign sovereign immunity, meaning that it made the norms of international law on the issue of sovereign immunity into official United States domestic law. See Brief for Petitioner at 24. Samantar, claims that the Supreme Court should read common law codifications, such as FSIA, by looking towards the international common law at the time the law was enacted. See Id. at 25; (citing Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193 (2007)). Samantar argues that, pre-FSIA, U.S. courts granted immunity to an official acting in his official capacity, because the suit was essentially against a foreign state. See Id. at 26. This common law was also recognized in courts outside the United States, including the United Kingdom and Australia. See Id. at 28. Thus, permitting this suit to proceed against Samantar would undermine the purpose of the FSIA. See Id. at 33.
The Somali plaintiffs argue that reference to international law is unnecessary because FSIA itself is clear and Congress is free to depart from customary international law. See Brief for Respondents at 34, 36. Even if international law did apply, the Somali plaintiffs contend that international law distinguishes between the state’s own and “specialized immunities” which protect individuals from suit. See Id. at 39–40. Therefore, if international law provided immunity to individuals acting in their official capacity, other norms such as the “head of state” immunity would be illogically redundant. See Id. at 40. The Somali plaintiffs also argue that, under international law, an individual enjoys immunity for official acts only if a judgment would “enforce a rule of law on the state.” See Id. at 42. They also point out that because the plaintiffs are here suing for monetary damages from Samantar, a United States citizen, a judgment would not have the effect of law on Somalia. See Id. Finally, the Somali plaintiffs note that the Eleventh Amendment of the United States treats states and their officials differently for purposes of immunity. See Id. at 47. Although the court's reading of the FSIA is not bound by the Eleventh Amendment, it is clear that, in choosing to craft its own international policy, Congress would most likely look to and consider analogous domestic situations. See Id.; Brief of Professors at 16–17.
If the FSIA applies to individuals, does it apply to former government officials?
Because Samantar is a United States citizen and no longer a Somali government official, the parties also dispute whether FSIA provides immunity to former government officials. Both parties focus on the Supreme Court’s prior holding in Dole Food Co. v. Patrickson. Brief for Petitioner at 47; Brief for Respondents at 50. In Dole Food, the Court issued two holdings: (1) a corporation is an “instrumentality” of a foreign state if the state is a majority shareholder, and (2) whether an entity is an instrumentality of a foreign “is determined at the time of the filing of the complaint.” See Dole Food Co., 538 U.S. 468, 478 (2003).
Samantar argues that Dole Food is inapplicable in this case because the suit against him concerns acts of a “foreign state” and not an “agency or instrumentality” of the state. See Brief for Petitioner at 47–48. Even if Samantar is an instrumentality, he argues that the Dole Food holding that “instrumentality status is determined at the time of filing of the complaint” was limited to corporate entities and not all instrumentalities. See Id. at 48. Because he is not a corporation, Samantar claims that his status is determined based on the timing of the events alleged in the complaint. See Id.Samantar distinguishes his situation from that of a corporation, explaining that while his actions in office were always on behalf of Somalia and thus acts of state, corporations often are quite distinct from foreign states. See Id. at 49. Samantar argues that the Fourth Circuit’s holding is fundamentally opposed to the principle of sovereign immunity, because it would allow a United States court to adjudicate the actions of a foreign state. See Id. at 50. Finally, Samantar argues that the common law, which was codified in FSIA, granted sovereign immunity to former officials because their acts were acts of the state and always sovereign in nature. See Id. at 30–31.
On the other hand, because the Somali plaintiffs argue that the FSIA does not grant immunity to any individual, they see little reason to differentiate between current and former officials. See Brief for Respondents at 11. The Somali plaintiffs claim that Samantar, a United States citizen, illogically asks for greater immunity than that received by United States politicians in United States courts. See Id. at 48–49. The Somali plaintiffs also note that Congress used the present tense throughout the FSIA, which evinces a Congressional focus on the status of the entity at the time of filing the suit and not on an official status. See Id. at 49–50. Therefore, the Somali plaintiffs argue that the holding of Dole Food applies in the context of former government officials like Samantar. See Id. at 50. Finally, they claim that, contrary to Samantar's assertion, international common law actually focused on the defendant’s status at the time of his suit, and not the timing of his alleged actions. See Id. at 51.
Discussion
This case addresses whether foreign government officials are immune from the jurisdiction of the United States’ courts under the Foreign Sovereign Immunities Act (“FSIA”). If they are granted immunity, the Court must also decide whether the individual retains immunity after he or she is no longer a government official. The FSIA provides that a foreign state is immune from the jurisdiction of the United States. See 28 U.S.C. § 1604. Petitioner, Samantar, argues that he is entitled to immunity under FSIA because the Act extends to foreign government officials acting in their official capacity, and he contends he was acting in his official capacity with respect to his involvement in the alleged acts. See Yousuf v. Samantar, 552 F.3d 371, 375–76 (4th Cir. 2009). Respondents, the Somali plaintiffs, counter that the FSIA applies only to foreign states, that Congress never intended the Act to apply to individuals, and even if it did apply to individual foreign officials, such persons do not retain immunity after they are no longer government officials. See Id. at 377. This case has critical implications for United States’ international relations.
Impact on Reciprocal Immunity for United States Officials Abroad
Former Attorneys General, amici curiae in support of Samantar, believe that failing to grant immunity to Samantar will weaken immunity for U.S. officials abroad. See Brief of Amici Curiae Former Attorneys General of the United States in Support of Petitioner at 9. They believe that the doctrine of sovereign immunity is essentially an exchange of legal protections between nations, and Congress adopted FSIA in order to gain reciprocal benefits for U.S. officials abroad. See Id. at 12–13. The Attorneys General are afraid that taking immunity away from foreign government officials under FSIA will cause other countries to grant less immunity to U.S. officials abroad. See Id. at 13.
However, a group of former United States diplomats, in support of the Somali plaintiffs, counter that, even without reciprocity stemming from recognized sovereign immunity under FSIA, U.S. diplomats are already significantly protected from foreign suits by diplomatic immunity, stemming from the Vienna Convention on Diplomatic Relations. See Brief of Amici Curiae Former United States Diplomats in Support of Respondents at 10, 23. Moreover, they contend that where charges of torture and extrajudicial killing are well founded, the United States should not want to immunize its officials from suit. See Id. at 22.
Impact on Relations and Governance Abroad
The Former Attorneys General also note that, without reciprocal immunity for officials abroad, the “content and quality” of U.S. governance will be stifled; with the potential liability for official actions “chill[ing] officials from taking decisive action.” See Brief of Former Attorneys General at 4. They believe that predictable immunity principles allow government officials to make difficult decisions in the best interests of U.S. policy, without having to also take into account what civil liability they might incur on a personal level. See Id. at 14.
Retired military professionals, in support of the Somali plaintiffs, are concerned that granting Samantar immunity in this case would cast aspersions on the U.S.’s own commitment to accountability. See Brief of Amici Curiae Retired Military Professionals in Support of Respondents at 8. They argue that the creation of an impression increases the risk of torture and abuse of our own troops, prisoners of war, and civilians abroad. See Id. Amici also refute Samantar’s argument that denying immunity would risk serious reciprocal implications for U.S. officials, pointing out that that “the reciprocity on which our military depends is the reciprocity of accountability, the foundation of the law of war and the prohibitions on abusive treatment.” See Id. at 19. Amici argue that this sort of reciprocity—not a freedom from liability—is what is most essential to national security. See Id.
Impact on U.S. relations with Israel
Supporters of the State of Israel are very concerned with the effects this ruling may have on their own government officials. The Zionist Organization of America, among others, discuss the danger of “Lawfare,” a strategy implemented by Israeli’s enemies of bringing unfounded lawsuits against present and former Israeli government officials. See Brief of Amici Curiae Zionist Organization of America, et al. in Support of Petitioner at 2. Amici contend that these frivolous lawsuits are directed at Israeli officials in a retaliatory fashion, with the hopes of dissuading Israeli government officials from taking decisive action when they are making decisions in their official capacities. See Id. at 8. They believe that this type of lawsuit has been infrequent in the U.S. up until now, in large part because of the system of reciprocity under the FSIA. See Id. at 2, 8. They argue that denying Samantar immunity would open the floodgates to this type of frivolous litigation. See Id. at 2. Amici also note that if foreign government officials are vulnerable to suit in U.S. courts, it would be very difficult for Israeli government officials, who are so frequently targets of “Lawfare,” to visit the U.S. since they could be subjected to service of process once they entered U.S. territory. See Id. at 10.
Impact on the Torture Victim Protection Act
The most overwhelming concern for supporters of the Somali plaintiffs has been that if the FSIA is interpreted to afford immunity to former officials, the Torture Victim Protection Act (“TVPA”) will essentially be rendered void. The TVPA creates a statutory cause of action against an individual who commits torture under actual or apparent authority, or under color of law, of any foreign nation. See Brief of Amici Curiae Dolly Filártiga, et al. in Support of Respondent at 6. Amici Professors writing in support of the Somali plaintiffs argue that Congress passed the FSIA in response to concerns involving foreign states themselves, and that if Congress intended for a suit against an official to be treated as the equivalent of a suit against a the sovereign itself, it would have made explicit note of this in the statute. See Brief of Amici Curiae Professors of International Litigation and Foreign Relations Law ("Professors") in Support of Respondents at 4. The Professors also contend that extending the FSIA to provide immunity to foreign officials would generate conflict between the FSIA and the TVPA. See Id. at 20. The TVPA’s clear language shows that the TVPA is limited to individuals, and the FSIA’s plain language demonstrates that it is limited to foreign states. See Id. In addition, torture victim Dolly Filártiga, among others, argue that based on principles of statutory construction, if two statutes are capable of coexisting, the courts should regard both as effective. See Brief of Amici Curiae Dolly Filártiga, et al. at 10.
Conclusion
This case will determine whether the FSIA applies to individuals, specifically former government officials acting in their official capacity. The Supreme Court will resolve a circuit split caused by ambiguous statutory language and strong policy arguments on both sides. The Court’s decision could seriously impact the sovereign immunity enjoyed by foreign officials in the United States and U.S. officials abroad. Because of the potentially large political repercussions of the decision, the Court may choose to narrowly decide the case in order to avoid stepping into an arena typically reserved for Congress and the Executive Branch.
Written by
Edited by
Acknowledgments
We would like to thank Professor Jens Ohlin for his time and helpful insight on this case.