Samantar v. Yousuf

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Argued March 3, 2010. Decided June 1, 2010.

Authorship: Lyle Denniston of SCOTUSblog

Docket: 08-1555

Issue: . 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 and 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.

Contents

Briefs and Documents

Decision

AFFIRMED AND REMANDED in a 9-0 decision with an opinion written by Justice Stevens. Justice Alito filed a concurring opinion. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Scalia filed an opinion concurring in the judgment.

Oral Argument

Transcript (March 3, 2010)

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Opinion Analysis

Lyle Denniston originally wrote the following for SCOTUSblog:

Analysis

With no dissent, the Supreme Court on June 1 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.

Oral Argument Recap

Lyle Denniston originally wrote the following for SCOTUSblog:

Analysis

Showing some hesitancy to leave it to the State Department to decide when foreign government officials can be sued in U.S. courts for human rights abuses, the Supreme Court on Wednesday struggled to figure out what Congress wanted courts to do with such lawsuits. Not one of three lawyers who argued in Samantar v. Yousuf, et al. (08-1555) seemed to make a convincing case, thus leaving the Justices to work out a decision, unaided by much beyond their own perceptions, in coming weeks. The Justices’ puzzlement began in the opening minute of the argument, and remained throughout.

A former high-ranking official of the dictatorial regime in Somalia, now living in Fairfax, VA, is seeking to head off a claim for damages by members of a Somali clan and their relatives that he was responsible for torture, rape and other atrocities during years of repression in the east African nation. For the Court to rule for him at this stage, however, it appeared that the Justices would have to accept a simple premise: his government would have been immune to a damages lawsuit, so he was, too, since what he did were official acts. The Justices, though, appeared to regard the issue as notably more complex than that.

The ex-official from Somalia, Mohamed Ali Samantar, fled the country when the regime collapsed nine years ago. Sued in a federal court in Virginia by Somali expatriates, Samantar is now seeking immunity under a 1976 federal law that supposedly clarified U.S.policy on when a foreign government would be given immunity from lawsuits in American courts. The law makes no mention of the legal status of present or former officials of a foreign government, but the Supreme Court took his case to clear up a dispute among lower courts on whether, despite that silence, the Foreign Sovereign Immunities Act would insulate individual foreign officers — present or former — from liability.

Samantar’s lawyer, Shay Dvoretzky of Washington, had barely finished his opening sentence when Justice Anthony M. Kennedy wondered how the Court was to sort out that law, and one passed 15 years later (The Torture Victims Protection Act), subjecting foreign officials to lawsuits in the U.S. if they had engaged in torture. Even assuming immunity for foreign officials under FSIA, Kennedy asked, why was that not overridden by the TVPA? Dvoretzky said the later law had to take into account the “background immunity principles” reflected in FSIA and predating it. Congress, the lawyer contended, never took away that earlier immunity understanding.

But the response did not clear up the uncertainty that was evident on the bench. Justice Ruth Bader Ginsburg, for example, wondered if any lawsuit against a foreign officer for wrongdoing would ever be able to survive a claim of immunity. Dvoretzsky said there could be cases under exceptions written into FSIA, or if the foreign state waived immunity for the official — something Ginsburg suggested would never happen.

Chief Justice John G. Roberts, Jr., also protested the lawyer’s attempt to pare down the importance of the 1991 law allowing lawsuits based on torture claims. And Ginsburg returned to the fray, suggesting that the lawsuit against Samantar was seeking money from him, not from a foreign government, so that lawsuit was not the equivalent of a suit against the government as such. The lawyer countered that the issue was not who would pay, but whether the acts at issue were acts on behalf of a government, and that makes them legally immune.

Justice Samuel A. Alito, Jr., then questioned how courts would be able to decide whether an official’s actions were the official acts of a foreign state, Dvoretzky suggested several ways, but insisted that it was not a difficult inquiry anyway. That led several Justices off into an exploration of other forms of legal immunity, leaving the impression that the Justices were having difficulty sorting out different levels of immunity in the diplomatic and foreign policy context, thus intimating further that Congress may not have spoken clearly enough to guide the courts.

Next, Justice Stephen G. Breyer introduced a further complexity — how to determine immunity if the foreign official no longer was in government or the foreign government simply “disappeared,” with either case perhaps changing the legal equation. That led Dvoretzky into what seemed like a concession: if the foreign government had ceased to exist, he said, the former official probably could be sued. He sought to explain: what immunity was all about was foreign government immunity. That explanation, though, merely served to take Breyer and other Justices off into an exploration of another form of immunity: the so-called “act of state” doctrine.

Justice Scalia moved to bring the argument back to FSIA’s immunity concepts as embodied in its actual text, and in the process undercut Dvoretzky’s alternative argument that, if Samantar is not directly immune because he was acting as the state, he was immune because he qualified as an agent of the Somali government. Justice Alito also challenged the lawyer’s overall argument about individual liability, noting that “it’s something of a mystery that the FSIA doesn’t say anything at all about this form of [individual] immunity: doesn’t codify it, doesn’t abrogate it, doesn’t preserve the preexisting law.” Dvoretzky insisted that the issue went unmentioned because it was not in question in 1976.

Before Dvoretzky sat down, the argument moved on briefly to a point that would later emerge with greater clarity: what role the Court should expect, or allow, for the U.S. State Department in advising courts on the concept of foreign governments’ or individual officials’ immunity.

The meandering nature of the argument while Dvoretzky was at the podium continued when the Somali expatriates’ lawyer, Patricia A. Millett of Washington, took her turn. She immediately sought to use the 1991 anti-torture law as a way to bolster her clients’ claims against Samantar, but promptly encountered comments by Chief Justice and Justice Scalia suggesting that it made little sense for Congress to have barred lawsuits against foreign governments but not for the officials who acted for such a government. “The only way a state can act,” the Chief Justice said, “is through people.” Scakia added that it “seems very strange” to write a law giving a government immunity but not its “principal officers,” adding: “I guess you could write it that way, but I don’t know why anybody would want to write it that way.”

Justice Breyer picked up on that point, and suggested that, if a foreign official did not share his government’s immunity, all that lawyers for someone suing the official would have to do was to rewrite the lawsuit to target the individual, for the very same conduct, so the lawsuit could then go forward. When Millett said that would put the lawsuit outside the immunity grant of FSIA, Breyer retorted that, if that is true, the FSIA law “does nothing whatsoever.” Unsatisfied, Breyer persisted: “I cannot imagine any complaint that isn’t open to that because…a state can only act through an individual….What you are saying [is that FSIA] is only good as against a bad lawyer, because any good lawyer would simply fill in the right names.”

Breyer then moved on to test what “principle” would govern whether a given present or former foreign official was, in fact, immune to a lawsuit. He obviously was seeking guidance on what mechanism the courts would use to settle that issue. Millett responded with a series of variable factors to consider, but did not lay out a governing principle. She insisted that Congress had provided “a framework” for sorting out individual liability.

The Chief Justice picked up on Breyer’s point, then moved the discussion into what Congress had in mind about the Executive Branch’s role, when courts are pondering whether immunity should be recognized in a given case against foreign wrongdoing. Congress, Roberts suggested, passed the FSIA “to get the Executive Branch out of the business” of picking and choosing when immunity should be allowed, and when not. He went on to note that, in this very case, the Executive Branch was arguing that courts should revive the practice of asking the State Department whether immunity existed in a given case. “It seems to me,” Roberts told Millett, “the whole reason you have the FSIA is undermined by the position you are listing today.”

Justice Scalia joined in, suggesting that FSIA was passed in order to “take away from the Executive” the determination of immunity, and handed it to the courts. Millett, however, said that the Executive had to remain involved, because of the “foreign relations implications” of immunity questions. Late in Millett’s argument, Justice Ginsburg probed whether she was “in sync” with the Executive Branch’s argument that it was up to that Branch to tell the courts when to acknowledge or deny immunity to a foreign official. The courts, the lawyer said, should give “respectful deference” to the government’s view, but not “rubber-stamp” it.

Scalia then commented that “the State Department wants to be able to decide whether individuals will be held liable.” He also said that he would “find it much more acceptable to have the State Department say that a particuloar foreign country should be let off the hook” than to let that Department decided whether “an individual human being shall be punished.” Justice Kennedy chimed in with a note of his own skepticism about the State Department’s role.

Those exchanges set the stage for a fairly rough time for the federal government’s lawyer, Deputy Solicitor General Edwin S. Kneedler. He had only begun when Justice Sonia Sotomayor asked him to discuss the “practical implications” of the government’s position so far as it would allow some lawsuits against individual foreign officials with the State Department continuing to have a role in advising the courts on immunity. If a lawsuit were filed, and the lawyer kept it alive against an immunity claim by naming specific officials, “would not grind the courts to a halt” [presumably, while awaiting advice on whether immunity applied].

Kneedler conceded that courts would have to work out the immunity issue at the outset, in order to determine if they had authority to decide the case. When Justice Breyer took a turn probing how immunity disputes would be resolved when individual foreign officials were sued, the government lawyer sought to show that Congress did not want to oust the Executive Branch from advising courts on when immunity for an individual should be recognized. Using the complex situation that has since developed in Somalia, where there now is no functioning government, Kneedler strove to make a case for a continung role for the State Department in dealing with “the sensitivities of foreign official immunity.”

But, when Justice Ginsburg tried to nail down whether the U.S. government now considered Samantar to be immune, Kneedler said the government was not taking a position on that now, and noted that further proceedings remain in lower courts.

Pre-Argument Articles

Argument Preview

The following was originally written for SCOTUSblog.

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.

Background

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 consequences 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 killing, 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.

Analysis

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.

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