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

March 3, 2010 -- 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.

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.

Court to Decide on Case by June

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."

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.