Supreme Court Hears Arguments over Immunity for Foreign Leaders
As reported by Jess Bravin in the Wall Street Journal On Line, the Supreme Court heard arguments on March 3 over whether foreign leaders are entitled to legal immunity in the U.S. for their official acts, in a case that some justices suggested could hold ramifications for former American officials.The court is seeking to reconcile two U.S. laws in apparent conflict.
The Torture Victim Protection Act of 1991 authorizes lawsuits against people who allegedly committed torture or extrajudicial killing "under actual or apparent authority…of any foreign nation" when the home nation lacks adequate remedies for such offenses. But the 1976 Foreign Sovereign Immunities Act exempts foreign governments and their "agencies" and "instrumentalities" from being sued.
The case involves a former Somali official, Mohamed Ali Samantar. Five Somali natives, including two U.S. citizens, claim that they or their relatives were abused or killed by forces under Mr. Samantar's command. Mr. Samantar, who now lives in Fairfax, Va., contends that because he was prime minister or defense minister from 1980 until the Somali regime's 1991 collapse, he was an "instrumentality" of government and thus immune from liability.
In a ruling last year, the Fourth U.S. Circuit Court of Appeals disagreed. The Richmond, Va., court said the Immunities Act was designed to cover entities such as national airlines and other state-owned businesses, not individuals. Other appeals courts have read the Immunities Act more broadly, and the Supreme Court seemed similarly divided over how to construe the law.
Shay Dvoretzky, a lawyer representing Mr. Samantar, said there was no way to distinguish between a foreign government and the individuals who ran it. Congress immunized "foreign officials for acts taken on the state's behalf, because such suits are the equivalent of a suit against the state directly," he told the court.
Patricia Millett, an attorney representing the plaintiffs, said that if Mr. Samantar was right, then the Torture Victim Act "was a very empty statute."
Deputy Solicitor General Edwin Kneedler said the law's ambiguity was intended to leave discretion with the executive branch, which could advise courts whether specific torture lawsuits should be allowed to proceed. "There are a lot of diplomatic sensitivities about whether immunity should be recognized in a particular case or not," Mr. Kneedler said.
Last year, Baltazar Garzon, a Spanish magistrate, opened an investigation into torture allegations against six former Bush administration officials, including former Justice Department lawyer John Yoo.
A decision in Samantar v. Yousuf is expected before July.
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