As Beth Van Schaack reported last week, the Supreme Court has called for the views of the Solicitor General in Samantar v. Yousuf, a case raising questions about the immunity of a former foreign official from liability for torture and extrajudicial killing. Samantar was once Defense Minister and then Prime Minister of Somalia, where he was responsible for serious violations of human rights. He has lived in the United States since 1997. Some of Samantar’s victims also fled to the United States, and in 2004 they sued him in U.S. district court under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA). Their claims are not mere allegations. In 2012, Samantar openly admitted liability for torture and extrajudicial killing, and the district court found that “Samantar not only knew about” the human rights violations “but he in fact ordered and affirmatively permitted such violations.”

The stakes are high. The Supreme Court has been chipping away at the ability of human rights victims to find redress in U.S. courts. Foreign corporations are largely shielded from personal jurisdiction with respect to human rights abuses abroad after the Court’s 2014 decision in Daimler AG v. Bauman. All corporations are exempt from claims under the TVPA for torture and extrajudicial killing following Mohamad v. Palestinian Authority in 2012. And the future of human rights suits against U.S. corporations under the ATS depends on how lower courts interpret the cryptic last paragraph of Chief Justice Roberts’s 2013 opinion in Kiobel v. Royal Dutch Petroleum Co. Kiobel left the door open to human rights claims against individuals under the ATS of the type brought in the landmark 1980 case of Filartiga v. Pena-Irala, and the TVPA provides an express cause of action against individuals for torture and extrajudicial killing under color of foreign law. But doctrines of foreign official immunity could extinguish such claims, leaving the victims of human rights violations no recourse in U.S. courts even when, as in Samantar, both the victims and the perpetrator are longstanding residents of the United States.

One might think the Supreme Court has had quite enough of the tangled history of Samantar’s case. As Beth noted, this is the third time Samantar has asked the Supreme Court for review. The first time, in 2010, the Court unanimously rejected his argument that the Foreign Sovereign Immunities Act (FSIA) shielded him from suit. The Court held that the immunity of foreign officials in U.S. courts was governed not by the FSIA but by federal common law. On remand to the district court, the State Department determined in 2011 that Samantar was not entitled to immunity, citing in particular the lack of a recognized government in Somalia and the fact that Samantar was a U.S. resident who “ordinarily should be subject to the jurisdiction of our courts, particularly when sued by U.S. residents.”

On interlocutory appeal, the Fourth Circuit held (1) that State Department determinations of the conduct-based immunity of former officials are entitled to “substantial weight” and (2) that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms (norms like those against torture and extrajudicial killing from which international law allows no departure). When Samantar sought Supreme Court review a second time, the Solicitor General filed a brief arguing that State Department determinations are entitled to absolute deference, not just substantial weight, and that there is no exception to immunity for jus cogens violations. The Solicitor General did not ask the Court to hear the case but rather to grant, vacate, and remand, noting that the United States had now recognized a government in Somalia and that the State Department might revisit its determination that Samantar is not immune. The Supreme Court did not follow the Solicitor General’s suggestion, however, and denied cert. Now, following the entry of final judgment, Samantar has sought review a third time. What happens next?

Will the State Department Issue a New Immunity Determination?

The Justice Department takes the position that determinations of immunity remain binding on U.S. courts until they are changed by the State Department. So the first question is whether the State Department will, in fact, revisit its 2011 determination that Samantar was not immune from suit. There are a number of reasons to think that it will not.

First, although the United States now officially recognizes a government in Somalia, Somalia’s position with respect to Samantar’s immunity remains unclear. Responding to contradictory letters around the time of Samantar’s second cert petition, the Solicitor General told the Supreme Court in a letter dated January 8, 2014 that “further diplomatic discussions” were needed “to clarify the position of the Government of Somalia on the immunity issue.” In April, the Justice Department told the district court in a related case that because of the security situation in Somalia, those discussions had not occurred. See Statement of Interest, Doe v. Ali (E.D. Va.) (filed Apr. 24, 2014).

Second, even if Somalia were to make a clear request to grant Samantar immunity, the State Department should be reluctant to change its position under pressure. The Department has said that it will consider a foreign government’s request for immunity but is not bound by it. See, e.g., Statement of Interest and Suggestion of Immunity at 9, Rosenberg v. Lashkar-e-Taiba (“Notwithstanding such a request, however, the Department of State could determine that a foreign official is not entitled to immunity.”). But changing a determination of immunity based on the request of a foreign government—particularly after a prior determination of non-immunity with respect to the same person—would make it seem that immunity determinations are based entirely on political factors. It would invite greater pressure from more powerful foreign governments in the future. As former State Department Legal Adviser John Bellinger has pointed out, this was the U.S. experience with respect to foreign state immunity prior to the FSIA, and it was not a happy one. Indeed, concerns about politicization of Executive Branch immunity determinations helped drive the move to codify foreign state immunity in the United States.

Third, even if recognition of a Somali government has affected one of the factors cited in the State Department’s 2011 determination, the other factor cited remains the same. Both Samantar and his victims continue to be residents of the United States who should ordinarily be able to turn to U.S. courts to resolve legal disputes. There remains no possibility that Somali courts could provide an alternative forum for the plaintiffs’ claims.

Fourth, another factor has changed since 2011 in a way that reinforces the State Department’s original determination of non-immunity. In 2012, Samantar admitted in open court his liability for torture and extrajudicial killing. The district court later entered final judgment finding on the basis of the evidence presented that “Samantar not only knew about” the human rights violations “but he in fact ordered and affirmatively permitted such violations,” findings that Samantar did not challenge on appeal. This therefore is not a case like Rosenberg (the Mumbai bombing case), in which the plaintiffs have made only conclusory allegations linking a foreign official to human rights violations. The facts in Samantar are undisputed: the defendant is legally responsible for the torture and extrajudicial killings suffered by plaintiffs.

Finally, and relatedly, to revisit the determination with respect to immunity in this case would not shield the defendant from the vexation of having to defend against an ill-founded lawsuit. Final judgment has already been entered after 10 years of litigation. A determination that Samantar is immune would, at this point, serve only one purpose—to absolve an admitted human rights violator and U.S. resident of legal liability for torture and extrajudicial killing, leaving his U.S.-resident victims without relief. How could such an action possibly be reconciled with the White House’s stated resolve to “hold accountable perpetrators of mass atrocities”?

If the State Department were to change its determination and find that Samantar is now entitled to immunity, the proper disposition by the Supreme Court would be a remand to the district court so that it could give “substantial weight” to that new determination under controlling Fourth Circuit precedent. But for the reasons noted above, such a change seems unwarranted and unlikely. It is hard to believe that the State Department would want to grant immunity to an admitted human rights violator, after ten years of litigation and the entry of final judgment, when the only possible explanation for the change would be political pressure from a foreign government.

If the State Department Does Not Change Its Determination, Is the Case Certworthy?

So what happens if the State Department does not change its determination? Is the case worthy of Supreme Court review?

As an initial matter, it is worth noting that Justice Kagan would be recused because of her prior participation as Solicitor General. That means the questions would be determined by less than a full Court, with an increased likelihood of a 4-4 split.

More importantly, despite the claims of Samantar’s lawyers, there is no split among the circuits on the question whether torture and other jus cogens violations may constitute official acts for purposes of conduct-based immunity. The supposedly contrary decisions cited in Samantar’s petition have in fact addressed the separate question of whether to recognize a jus cogens exception to immunity once that immunity has attached. As D.C. Circuit Judge Stephen Williams has aptly noted, the question whether an immunity attaches is “quite distinct” from the question whether to recognize exceptions to an existing immunity. Belhas v. Ya’alon, 515 F.3d 1279, 1292 (D.C. Cir. 2011) (Williams, J., concurring).

There is a weak and shallow split among the circuits on a second question: the level of deference to give State Department determinations of conduct-based immunity. The Second Circuit gives such determinations absolute deference, while the Fourth Circuit gives them “substantial weight.” Resolution of that split would not affect the outcome of this case, however, because the Fourth Circuit ultimately agreed with the State Department’s determination that Samantar was not immune from suit. The Supreme Court does not typically grant cert to correct a lower court’s reasoning. See Chevron, U.S.A. Inc. v. NRDC, 467 U.S. 837, 842 (1984) (“[T]his Court reviews judgments, not opinions.”); see also Brief for the United States in Opposition at 15-16, Rack Room Shoes v. United States, 134 S. Ct. 2287 (2014) (urging denial of cert to correct a court of appeals’ determination of a legal question because there was no “no reason to think that the outcome of the case would have been different”).

If the Supreme Court takes this case, there is good reason to think that it would be less deferential to the Executive than the Fourth Circuit. As Harlan Cohen has pointed out, the Roberts Court has been distrustful of special executive privileges in foreign affairs. In the closely related context of state immunity, Justice Kennedy has argued that “judicial independence . . . is compromised by case-by-case, selective determinations of jurisdiction by the Executive.” Republic of Austria v. Altmann, 541 U.S. 677, 735 (Kennedy, J., dissenting). Chief Justice Roberts could be expected to ask the government precisely where it gets the constitutional authority to make rules governing foreign official immunity. See Medellin v. Texas, 552 U.S. 491, 526-27 (2008) (“Indeed, ‘the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.’” (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952))). This risk alone might be reason for the Solicitor General to think twice about whether to recommend a grant of cert, particularly since the United States agrees with the outcome below. And if the State Department were to change its immunity determination, the Justices’ skepticism about deferring to the Executive would only be likely to grow.

Some—including some former U.S. Attorneys General in this case—have argued that the United States has a reciprocal interest in protecting former U.S. government officials from legal proceedings abroad. But what happens in Samantar will not affect such cases for at least two reasons. First, international law does not require treating jus cogens violations as official acts. Any immunity the United States grants Samantar in this case would be as a matter of comity, not legal obligation. Foreign courts would in no way be bound to give the same immunity to U.S. officials. Second, virtually all the legal proceedings against U.S. officials abroad have been criminal cases, which would be unaffected by what the United States does in a civil case like Samantar. Even countries that grant broad civil immunity to foreign officials do not recognize such immunity in criminal cases (see, for example, the Supreme Court of Canada’s recent decision in Kazemi Estate v. Islamic Republic of Iran, discussed here). In fact, the Solicitor General told the Supreme Court in Samantar I that “foreign official immunity in the civil context does not imply that foreign officials are entitled to immunity in a criminal case brought by the United States.” Brief for the United States as Amicus Curiae Supporting Affirmance at 12 n.6, Samantar v. Yousuf, 560 U.S. 305 (2010). The argument that granting immunity to Samantar is necessary to protect U.S. officials abroad is simply a red herring.

Under normal circumstances, the Solicitor General would try to respond to the Court’s invitation by the end of December, so that the case might be heard this Term. If that timing proves difficult, look for Solicitor General to file his brief in May after the oral arguments for this Term are done but before the Court’s final conference in June. Stay tuned.