Can Ex-Somali Official Living in U.S. Be Sued for Torture?

Photo: Former Somali official living in Virginia sued for torture: Supreme Court to decide if hes immune

The Supreme Court on Wednesday heard arguments in a case about a Fairfax, Va., retiree who also happens to be the former prime minister of Somalia, accused of tacitly approving gross acts of torture.

Mohamed Ali Samantar served in Somalia from 1971 to 1990 in various high government jobs under Somali President Muhammad Siad Barre. During that period, the United States recognized the government of Somalia but the country struggled through intense and violent civil conflict. In 1991, the Barre government was overthrown and Samantar eventually landed in exile in the United States.

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But five individuals who say they or their family were exposed to torture while Samantar was an official in Somalia want to sue him for monetary damages in U.S. courts.

Bashe Abdi Yousuf, one of the five, claims in court papers that while living in Somalia, he was tortured and subjected to electrocution under the Barre regime. After spending six years in solitary confinement, he fled Somalia and is now a U.S. citizen. He and the other alleged victims claim Samantar was an "active participant in the enforcement" of a system of government that used torture and killing.

The high court will not rule on Samantar's guilt or innocence, but rather on whether he, as a former foreign government official, is entitled to immunity from civil lawsuits under the Foreign Sovereign Immunities Act (FSIA) passed in 1976.

U.S. federal courts have been divided on the issue. The district court dismissed the claims against Samantar, but a federal appeals court considered the claims and ruled that he was not entitled to immunity.

It's now up to the Supreme Court to clarify the immunity of foreign governments and former government officials in U.S. courts.

In court today, Samantar's lawyer, Shay Dvoretzky, argued there was "no question" that his client was acting in his official capacity, and that FSIA was meant to grant him immunity. Dvoretzky argues that if the court found that Samantar was not covered by FSIA, the ruling will harm international relations, open the floodgates to litigation against foreign officials in the U.S. and create "serious implications" for U.S. officials abroad who may seek immunity.

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But Patricia A. Millet, arguing for the five people who tried to sue Samantar, told the justices that the statute was never meant to protect an individual.

Millet faced harsh questions from the justices. Justice Antonin Scalia said of the law, "I would find it extraordinary that it would go out of its way to say that it includes the Department of Defense but would leave up in the air whether it includes the Secretary of Defense."

Chief Justice John Roberts told Millet, "We are talking about insulating state acts. The only way a state can act is through people. And you are saying, 'Well, the state is insulated, but the people who do the acts for the state are not.' I don't see how that can -- can work."

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