Amidst all the recent activity (and non-activity) at the Supreme Court this term, it might have been missed that the Court invited the Solicitor General to express the views of the United States in connection with Mohamed Ali Samantar’s third petition for certiorari. We’ve covered the Samantar case in some depth here as well as related issues concerning foreign official immunity more broadly (here and here) and efforts in the African Union to secure immunities for its “senior state officials” (here).
The Fourth Circuit Proceedings
Our Samantar coverage left off at the point at which Samantar’s assertions of the right to both species of immunity—head of state immunity for acts committed while Prime Minister of Somalia in the 1980s and foreign official immunity by virtue of holding several additional high-level government posts—had been rejected by the Fourth Circuit on grounds that there was no recognized government of Somalia to assert Samantar’s immunity and, in any case, he was not entitled to immunity for violations of jus cogens norms, because such acts are never legitimate official acts. (A longer case history is available here).
The U.S. government had weighed in at this stage, noting that the State Department had determined that Samantar was not entitled to any immunities on two independent grounds:
- There was no recognized government to waive or request immunity on Samantar’s behalf, including by expressing a position on whether the acts in question were committed in an official capacity. Indeed, there were competing submissions on the immunity question emanating from Somalia itself: the Transitional Federal Government had sought to assert immunity on behalf of Samantar whereas the government of the Republic of Somaliland had sought to waive any residual immunity.
- U.S. residents like Samantar, who enjoy the protections of U.S. law and have a binding tie to this country, ordinarily should be subject to the jurisdiction of U.S. courts, particularly when sued by other U.S. residents.
In its brief, the government argued that its views were entitled to decisive weight, particularly because it took an “express position” in the case:
[T]he Executive Branch continues to play the primary role in determining the immunity of foreign officials as an aspect of the President’s responsibility for the conduct of foreign relations and recognition of foreign governments. Accordingly, courts today must continue to defer to Executive determinations of foreign official immunity.
The Government thus invoked not only the Executive Branch’s Article II, § 3 recognition powers, but also its more plenary foreign relations powers.
In rejecting immunity for Samantar, the 4th Circuit respectfully demurred on the issue of deference, reasoning that the Government’s views were entitled to “substantial weight” but were not controlling given that foreign official immunity turned on the nature of Samantar’s acts rather than on his recognized status. By comparison, the 4th Circuit indicated that a head-of-state-immunity determination would be binding.
Petition for Certiorari #2
Samantar petitioned again for certiorari. While this petition was pending, the U.S. government in January 2013 recognized the Somali government for the first time in several decades following national elections. The elections were made possible by the deployment of an African Union peacekeeping mission (AMISOM), extensive foreign assistance, and United States counter-terrorism operations that helped push Al Shabaab militants out of key territory and enable the consolidation of a national government after years of Somalia being the quintessential “failed state”. In February 2013, the then-Prime Minister of Somalia wrote to Secretary Clinton in support of Samantar’s immunity claim, affirming that the defendant’s alleged acts were undertaken in his official capacity.
The Supreme Court again called for the views of the United States. The Government’s brief argued that the Court should grant, vacate, and remand (GVR) in order to give the Executive branch a chance to assess the impact of such “changed circumstances” prior to the Court exercising its plenary review. The recognition issue had already been complicated by the fact that the Parliament was about to pass a no-confidence motion that would remove from power the very Prime Minister who had weighed in on Samantar’s entitlement to immunity and who also had been central to creating the “New Deal Compact” with international donors and partners that led to Somalia’s rehabilitation as a state. In addition, someone describing himself as a Legal Advisor to the Somali President had submitted a letter purporting to rescind the Prime Minister’s request for immunity on Samantar’s behalf. Email and epistolary correspondence apparently ensued about whether this letter had been authorized or was ultra vires. In any case, the “official” Somali position was unclear.
Although it advocated for GVR, the U.S. Government brief nonetheless took the opportunity to criticize the 4th Circuit’s ruling on the degree of deference to be accorded to the views of the United States when foreign official immunity is at issue and on the “categorical” jus cogens “exception” to immunity. The latter ruling should not be left standing, it was argued, because it threatens negative consequences for the United States’ foreign-relations interests and was inconsistent with prior Executive branch practice. The United States claimed that it had accorded immunity in the past for defendants alleged to have committed jus cogens violations, but all the post-Samantar cases cited appear to have involved head-of-state, rather than foreign-official, immunity.
In any case, rather than GVR, the Court denied cert in January 2014, most likely because the immunity issue was before the 4th Circuit on an interlocutory appeal. The district court had declined to stay the proceedings pending the appeal, which it deemed “frivolous.”
Back in the District Court
In a stunning move on the eve of trial, Samantar voluntarily accepted a default judgment, did not contest damages, and then fully accepted responsibility for the acts alleged in open court. (Samantar had previously declared bankruptcy in a vain effort to stay the proceedings.) The district court accordingly entered a final judgment in favor of the plaintiffs in August 2012, awarding $21 million in compensatory and punitive damages.
Petition for Certiorari #3
Inexplicably, Samantar later had a change of heart, reasserted his claim to immunity, and appealed the default judgment on jurisdictional grounds (all other grounds having been waived by the default). Nonetheless, the 4th Circuit affirmed. Samantar thus filed his third cert petition, which is currently before the Court. In it, he channels the U.S. government and challenges the Fourth Circuit’s “categorical” exception to common-law immunity when plaintiffs sue for alleged violations of jus cogens. The new government of Somalia has weighed in again, affirming Samantar’s plea for immunity and finding his acts were taken in his official capacity.
Cert may be marginally more likely this time around given that the Fourth Circuit’s opinion is in some tension with Matar v. Dichter, 563 F.3d 9 (2nd Cir. 2009), which held that the former head of the Israeli Security Agency was entitled to immunity notwithstanding allegations of jus cogens violations, and Ye v. Zemin, 383 F.3d 620 (7th Cir. 2004) (same w.r.t former President of China). That said, to the extent that there is a circuit split it is an oblique one, because both those cases predated the Supreme Court’s 2010 decision in Samantar. As such, they address genus claims to “foreign sovereign immunity” at a time when that concept operated as catch-all immunity claim. Post-Samantar, litigants must be more precise about whether “foreign official immunity” or “head of state immunity” (or potentially both depending on the timeline of events) is at issue. Moreover, as Bill Dodge has astutely noted, the 2nd Circuit and the 4th Circuit are answering different questions, with the Second Circuit concerned with whether a jus cogens exception to immunity exists and the 4th Circuit determining that immunity never attached in the first place. Thus, given that the lower courts are still exploring the scope of common law immunities, the Court might do well to leave this case alone for now, especially since the split is not exactly on all fours.