Justice Stephen Breyer worried about how to separate an individual, acting officially, and the actions of a state. "Sometimes the individual...does count as the state. Sometimes the individual does not count as the state. And the trouble I'm having in this case is to work out the principle of when that individual would fall within the FSIA."
Douglass Cassel, professor of law at Notre Dame Law School, wrote an amicus brief in the case on behalf of some prominent former diplomats. They side with the individuals seeking to sue Samantar. Cassel believes that FSIA should contain an exception for former officials, like Samantar, who are accused of committing horrendous human rights violations.
Cassel points out that there is currently a law -- the Torture Victim Protection Act -- that authorizes victims of torture to sue perpetrators in U.S. courts for money damages. If FSIA immunized such individuals, Cassel argues, "then the 1991 Torture Victim Protection Act would be meaningless."
In his brief, Cassel wrote, "Because of our national interest in holding human rights violators accountable, immunizing all foreign officials sued for torture and extrajudicial execution is particularly unwise."
The justices will decide the issue by late June.