High court considers whether former Somali official can be sued in US by victims of atrocities

Court weighs torture suit against Somali ex-leader

WASHINGTON — Supreme Court justices on Wednesday questioned whether a former prime minister of Somalia can be sued in U.S. courts over claims that he oversaw killings and torture in his home country.

At issue is whether foreign officials, not just countries and their agencies, receive immunity in federal court from being sued for their actions while in power.

Mohamed Ali Samantar was defense minister and prime minister of Somalia in the 1980s and early 1990s under dictator Siad Barre. He now lives in Virginia and is being sued by victims who say he was responsible for killings, rapes and torture, including waterboarding.

The court’s decision could have broad foreign policy implications. Allowing lawsuits against former foreign officials living in the United States could increase the likelihood that U.S. officials would be sued in overseas courts. An increase in the number of U.S. lawsuits dealing with past actions in foreign countries could also affect the United States’ current ties with those countries.

But a decision granting immunity could prevent torture victims from getting their day in U.S. courts when their oppressors have emigrated to the United States, advocates said.

A federal judge threw the case out in 2007, saying Samantar was entitled to the same immunity foreign countries get from lawsuits in U.S. courts. But the 4th U.S. Circuit Court of Appeals said that immunity does not extend to individuals, only to foreign states and their agencies.

“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. I mean, that seems very strange,” Justice Antonin Scalia said.

Congress intended to let victims sue foreign torturers and not to let them escape responsibility by claiming immunity when it passed the Torture Victim Protection Act, lawyer Patricia Millett said.

That law was “Congress’s judgment that … individuals who engage in torture and extrajudicial killing are held personally liable in Congress’s views and in the views of international law. And the Foreign Sovereign Immunities Act doesn’t stop that,” she said.

But Justice Stephen Breyer said, “The trouble I’m having in this case is to work out the principle of when that individual would fall within the FSIA … and when it doesn’t.”

Samantar’s lawyer, Shay Dvoretzky, said there was no question that his client was acting as a government official.

“There is no question that Mr. Samantar was acting in an official capacity, because he is being sued for his actions as a prime minister and as a defense minister, in the midst of what was effectively quelling a secessionist insurgency,” he said.

And the fact that he is now a former government official makes no difference, because a judgment against him would affect future foreign officials, Dvoretzky said. “You enforce a rule of law against a foreign state just as much by threatening to bankrupt an official as soon as he leaves office as you do by issuing an injunction,” he said.

The court will rule later this year.

The case is Samantar v. Yousuf, 08-1555.