WASHINGTON (CN) – In a case closely watched by foreign officials, the immunity of a former Somali prime minister involved in widespread killing, torture, and rape was put to question in the Supreme Court Wednesday. The ousted official had fled to the United States and was then sued in Virginia by his victims.
Defendant Mohamed Ali Samantar held several prominent positions in the oppressive Somalian government during the 1980s, serving as the vice president, as the minister of defense and as the prime minister. When the government was overthrown in 1991, Samantar fled to Kenya, then Italy, and finally settled in the United States, where he was sued by torture victims.
They claimed rape, murder and torture that involved electrocution, withholding of food and water, and extended solitary confinement.
The court must now decide whether the Federal Sovereign Immunities Act of 1976 includes foreign officials when it immunizes “agencies and instrumentalities” of a foreign country from being sued. And if foreign officials are immune under that act, the question would still turn on whether the Torture Victim Protection Act passed later would undo those immunities.
Lord Nicholas Phillips, president of the recently forged Supreme Court in the United Kingdom, attended the arguments.
Shay Dvoretzky, a partner at Jones Day, represented Samantar. He argued that the immunity of “agencies and instrumentalities” of a foreign country includes foreign officials because they act on the state’s behalf. He said this means the laws applied to the country and its officials are indistinguishable.
“U.S. courts are not the ultimate arbiters of foreign law,” he said.
Patricia Millett, a partner at Akin Gump Strauss Hauer & Feld, represented the victims, and was supported by the Obama administration. She said that foreign officials are not immune from being sued because the immunities act is only meant to protect the foreign country, not individuals. And she said that the vulnerable Samantar is liable under the torture victim act.
Justice Stephen Breyer challenged the victims’ arguments, saying that if the victims could simply make their claims against government officials, the law would undo the protection set up for foreign governments.
Chief Justice John Roberts followed up.
“The only way a state can act is through people,” he said to Millett. “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 work.”
Justice Antonin Scalia pointed to a torture case that Spanish courts heard last year against six Bush administration officials, including former Secretary of Defense Donald Rumsfeld. “And what you say is that that’s perfectly okay?” he asked the victims’ lawyer.
“I think it’s a pretty empty statute to interpret the Foreign Sovereign Immunities Act to immunize the Department Of Defense, but not the secretary of defense,” he told the victims’ lawyer.
But Scalia did not clearly favor one side. He joined other justices in suggesting that Samantar can be tried in an American court.
“It defines agency or instrumentality in a way which, it seems to me, does not include private individuals,” Scalia said of the immunity act.
Justice Sonia Sotomayor referenced other laws granting specific foreign immunity to make her point.
“That doesn’t make any sense to me,” she said in criticizing the argument that officials fall under the immunity of foreign nations. “Why would we have had the creation of all of these common law immunities attached to foreign individuals like consular and diplomatic and heads of state if state sovereign immunity was going to cover them naturally?”
Justice Ruth Bader Ginsburg also drew a distinction between a government and one of its officials. “This is a case seeking money out of the pocket of Samantar and no money from the treasury of Somalia, she said, “so why is the suit against the officer here equivalent to a suit against the state?”
Justice Anthony Kennedy addressed a clash between the immunity act and the torture victims act allowing the courts to judge people who assisted in torture in a foreign country. “Let’s assume there is immunity,” he said. “Why isn’t it just overridden by the later enactment of the Torture Victims Protection Act?”
Dvoretzky replied that the torture act creates a cause of action, but is silent on immunity, meaning the immunity act should be consulted.
The district court granted Samantar’s motion to dismiss the case, holding that claims against a foreign official equate to claims against the country, but the 4th Circuit reversed. It held that holding that individuals are not immune and if they were, Samantar is not because he is no longer a member of the Somali government.