Analysis: An elusive immunity issue
on Mar 3, 2010 at 3:04 pm
Analysis
Showing some hesitancy to leave it to the State Department to decide when foreign government officials can be sued in U.S. courts for human rights abuses, the Supreme Court on Wednesday struggled to figure out what Congress wanted courts to do with such lawsuits. Not one of three lawyers who argued in Samantar v. Yousuf, et al. (08-1555) seemed to make a convincing case, thus leaving the Justices to work out a decision, unaided by much beyond their own perceptions, in coming weeks. The Justices’ puzzlement began in the opening minute of the argument, and remained throughout.
A former high-ranking official of the dictatorial regime in Somalia, now living in Fairfax, VA, is seeking to head off a claim for damages by members of a Somali clan and their relatives that he was responsible for torture, rape and other atrocities during years of repression in the east African nation. For the Court to rule for him at this stage, however, it appeared that the Justices would have to accept a simple premise: his government would have been immune to a damages lawsuit, so he was, too, since what he did were official acts. The Justices, though, appeared to regard the issue as notably more complex than that.
The ex-official from Somalia, Mohamed Ali Samantar, fled the country when the regime collapsed nine years ago. Sued in a federal court in Virginia by Somali expatriates, Samantar is now seeking immunity under a 1976 federal law that supposedly clarified U.S. policy on when a foreign government would be given immunity from lawsuits in American courts. The law makes no mention of the legal status of present or former officials of a foreign government, but the Supreme Court took his case to clear up a dispute among lower courts on whether, despite that silence, the Foreign Sovereign Immunities Act would insulate individual foreign officers — present or former — from liability.
Samantar’s lawyer, Shay Dvoretzky of Washington, had barely finished his opening sentence when Justice Anthony M. Kennedy wondered how the Court was to sort out that law, and one passed 15 years later (The Torture Victims Protection Act), subjecting foreign officials to lawsuits in the U.S. if they had engaged in torture. Even assuming immunity for foreign officials under FSIA, Kennedy asked, why was that not overridden by the TVPA? Dvoretzky said the later law had to take into account the “background immunity principles” reflected in FSIA and predating it. Congress, the lawyer contended, never took away that earlier immunity understanding.
But the response did not clear up the uncertainty that was evident on the bench. Justice Ruth Bader Ginsburg, for example, wondered if any lawsuit against a foreign officer for wrongdoing would ever be able to survive a claim of immunity. Dvoretzsky said there could be cases under exceptions written into FSIA, or if the foreign state waived immunity for the official — something Ginsburg suggested would never happen.
Chief Justice John G. Roberts, Jr., also protested the lawyer’s attempt to pare down the importance of the 1991 law allowing lawsuits based on torture claims. And Ginsburg returned to the fray, suggesting that the lawsuit against Samantar was seeking money from him, not from a foreign government, so that lawsuit was not the equivalent of a suit against the government as such. The lawyer countered that the issue was not who would pay, but whether the acts at issue were acts on behalf of a government, and that makes them legally immune.
Justice Samuel A. Alito, Jr., then questioned how courts would be able to decide whether an official’s actions were the official acts of a foreign state, Dvoretzky suggested several ways, but insisted that it was not a difficult inquiry anyway.  That led several Justices off into an exploration of other forms of legal immunity, leaving the impression that the Justices were having difficulty sorting out different levels of immunity in the diplomatic and foreign policy context, thus intimating further that Congress may not have spoken clearly enough to guide the courts.
Next, Justice Stephen G. Breyer introduced a further complexity — how to determine immunity if the foreign official no longer was in government or the foreign government simply “disappeared,” with either case perhaps changing the legal equation.  That led Dvoretzky into what seemed like a concession: if the foreign government had ceased to exist, he said, the former official probably could be sued. He sought to explain: what immunity was all about was foreign government immunity. That explanation, though, merely served to take Breyer and other Justices off into an exploration of another form of immunity: the so-called “act of state” doctrine.
Justice Scalia moved to bring the argument back to FSIA’s immunity concepts as embodied in its actual text, and in the process undercut Dvoretzky’s alternative argument that, if Samantar is not directly immune because he was acting as the state, he was immune because he qualified as an agent of the Somali government. Justice Alito also challenged the lawyer’s overall argument about individual liability, noting that “it’s something of a mystery that the FSIA doesn’t say anything at all about this form of [individual] immunity: doesn’t codify it, doesn’t abrogate it, doesn’t preserve the preexisting law.” Dvoretzky insisted that the issue went unmentioned because it was not in question in 1976.
Before Dvoretzky sat down, the argument moved on briefly to a point that would later emerge with greater clarity: what role the Court should expect, or allow, for the U.S. State Department in advising courts on the concept of foreign governments’ or individual officials’ immunity.
The meandering nature of the argument while Dvoretzky was at the podium continued when the Somali expatriates’ lawyer, Patricia A. Millett of Washington, took her turn. She immediately sought to use the 1991 anti-torture law as a way to bolster her clients’ claims against Samantar, but promptly encountered comments by Chief Justice and Justice Scalia suggesting that it made little sense for Congress to have barred lawsuits against foreign governments but not for the officials who acted for such a government. “The only way a state can act,” the Chief Justice said, “is through people.” Scalia added that it “seems very strange” to write a law giving a government immunity but not its “principal officers,” adding: “I guess you could write it that way, but I don’t know why anybody would want to write it that way.”
Justice Breyer picked up on that point, and suggested that, if a foreign official did not share his government’s immunity, all that lawyers for someone suing the official would have to do was to rewrite the lawsuit to target the individual, for the very same conduct, so the lawsuit could then go forward. When Millett said that would put the lawsuit outside the immunity grant of FSIA, Breyer retorted that, if that is true, the FSIA law “does nothing whatsoever.” Unsatisfied, Breyer persisted: “I cannot imagine any complaint that isn’t open to that because…a state can only act through an individual….What you are saying [is that FSIA] is only good as against a bad lawyer, because any good lawyer would simply fill in the right names.”
Breyer then moved on to test what “principle” would govern whether a given present or former foreign official was, in fact, immune to a lawsuit. He obviously was seeking guidance on what mechanism the courts would use to settle that issue. Millett responded with a series of variable factors to consider, but did not lay out a governing principle. She insisted that Congress had provided “a framework” for sorting out individual liability.
The Chief Justice picked up on Breyer’s point, then moved the discussion into what Congress had in mind about the Executive Branch’s role, when courts are pondering whether immunity should be recognized in a given case against foreign wrongdoing. Congress, Roberts suggested, passed the FSIA “to get the Executive Branch out of the business” of picking and choosing when immunity should be allowed, and when not. He went on to note that, in this very case, the Executive Branch was arguing that courts should revive the practice of asking the State Department whether immunity existed in a given case. “It seems to me,” Roberts told Millett, “the whole reason you have the FSIA is undermined by the position you are listing today.”
Justice Scalia joined in, suggesting that FSIA was passed in order to “take away from the Executive” the determination of immunity, and handed it to the courts. Millett, however, said that the Executive had to remain involved, because of the “foreign relations implications” of immunity questions. Late in Millett’s argument, Justice Ginsburg probed whether she was “in sync” with the Executive Branch’s argument that it was up to that Branch to tell the courts when to acknowledge or deny immunity to a foreign official. The courts, the lawyer said, should give “respectful deference” to the government’s view, but not “rubber-stamp” it.
Scalia then commented that “the State Department wants to be able to decide whether individuals will be held liable.” He also said that he would “find it much more acceptable to have the State Department say that a particular foreign country should be let off the hook” than to let that Department decided whether “an individual human being shall be punished.” Justice Kennedy chimed in with a note of his own skepticism about the State Department’s role.
Those exchanges set the stage for a fairly rough time for the federal government’s lawyer, Deputy Solicitor General Edwin S. Kneedler.  He had only begun when Justice Sonia Sotomayor asked him to discuss the “practical implications” of the government’s position so far as it would allow some lawsuits against individual foreign officials with the State Department continuing to have a role in advising the courts on immunity. If a lawsuit were filed, and the lawyer kept it alive against an immunity claim by naming specific officials, “would not grind the courts to a halt” [presumably, while awaiting advice on whether immunity applied].
Kneedler conceded that courts would have to work out the immunity issue at the outset, in order to determine if they had authority to decide the case. When Justice Breyer took a turn probing how immunity disputes would be resolved when individual foreign officials were sued, the government lawyer sought to show that Congress did not want to oust the Executive Branch from advising courts on when immunity for an individual should be recognized. Using the complex situation that has since developed in Somalia, where there now is no functioning government, Kneedler strove to make a case for a continuing role for the State Department in dealing with “the sensitivities of foreign official immunity.”
But, when Justice Ginsburg tried to nail down whether the U.S. government now considered Samantar to be immune, Kneedler said the government was not taking a position on that now, and noted that further proceedings remain in lower courts.
