On Monday, the US Supreme Court denied certiorari in Samantar v. Yousuf, ending an attempt by the former Prime Minister of Somalia to claim that the torture and extrajudicial killing for which he admitted liability in US court were official acts entitled to immunity. At the end of the case, it is worth looking back at Samantar and considering its lessons — for plaintiffs, for defendants, and for the US government.
The torture and extrajudicial killings in question were committed by agents of the Somali government under Samantar’s command when he served as Defense Minister and Prime Minister of Somalia during the 1980s. Samantar fled Somalia in 1991 and moved to the United States in 1997. Some of his victims had moved to the United States too, and in 2004 they brought suit in federal district court under the Alien Tort Statute and Torture Victim Protection Act. In 2010, the Supreme Court unanimously held that Samantar was not shielded from suit by the Foreign Sovereign Immunities Act (FSIA), which covers only the immunities of foreign states. The Court remanded for the lower courts to consider whether Samantar was entitled to immunity under federal common law.
The State Department determined that Samantar was not entitled to foreign official immunity. The Fourth Circuit agreed but gave only substantial weight to the State Department’s determination, not the absolute deference the executive branch claimed. Rather, the Court of Appeals followed a long line of US decisions holding “that jus cogens violations are not legitimate official acts and therefore do not merit foreign official immunity.” As I have explained previously, that conclusion is correct not just as a matter of federal common law, but also as a matter of customary international law. Samantar petitioned the Supreme Court for certiorari. The executive branch, disagreeing with the Fourth Circuit’s reasoning, asked the Court to grant, vacate, and remand the case, but the Court chose simply to deny cert.
In the meantime, Samantar admitted in open court that he was liable for the torture and extrajudicial killing committed under his command. The district court entered final judgment, finding that Samantar had ordered the human rights violations, a determination that he did not challenge on appeal. Rather, Samantar argued that he should be immune from suit in US court based on his official acts, and he petitioned for certiorari again. The Court asked the Solicitor General for his views. I explained that it would be unwise for the State Department to change its determination that Samantar was not immune in light of his admitted liability for the human rights violations even if Somalia requested immunity. In the end, however, Somalia did not request immunity, the State Department stuck by its determination, and the Solicitor General recommended that the Court deny cert, which it has now done.
Now that the case is over, it is worth considering a few lessons Samantar holds for plaintiffs, defendants, and the U.S. government. For plaintiffs, the lessons are to choose your defendants carefully and be sure of your facts. One reason the plaintiffs in Samantar succeeded is because the defendant was a former foreign official entitled to conduct-based immunity only for official acts. Current heads of state, heads of government, and foreign ministers, by contrast, are entitled to status-based immunity for all their acts. Plaintiffs learned this the hard way in the Singh case when they filed suit against the sitting Prime Minister of India, leading to a predictable determination by the State Department that the defendant was entitled to head-of-state immunity, rather than waiting until the defendant left office. Plaintiffs must also plead in their complaints a facially plausible claim tying the defendant to the human rights violations, the sort of claim that would be sufficient to survive a motion to dismiss under Ashcroft v. Iqbal. In the absence of such allegations, the State Department will presume that actions taken by a foreign government official exercising the powers of his office were official acts entitled to immunity.
For defendants, the lesson is to raise other grounds for dismissal before resorting to immunity. The case against Samantar had been pending for nearly seven years before the State Department made its determination with respect to immunity. After the Supreme Court’s 2010 Samantar decision, the State Department made great efforts to put a process for immunity determinations, but sometimes it still cannot make the determination in sufficient time for the parties or the court. Defendants who can move to dismiss for lack of personal jurisdiction, insufficient service, forum non conveniens, or even inadequacy of the pleadings should make such motions before asking the State Department for a determination of immunity. Indeed, prior to passage of the FSIA in 1976, the department refused to make immunity determinations until such threshold questions had been resolved.
For the US government, there are at least two lessons. First, Samantar illustrates the need to continue to make reasonable immunity determinations. The government claims its determinations are entitled to absolute deference, but the Fourth Circuit did not give it such deference in Samantar and (as I have previously argued) the Supreme Court seems unlikely to endorse such deference when the question reaches the Court. If the State Department had reversed itself and determined that Samantar was entitled to immunity despite his admission of liability for torture and extrajudicial killing, the courts’ willingness to defer would certainly have been tested. Second, Samantar suggests that the executive branch should consider getting out of the immunity business altogether. State Department discretion over immunity determinations is a poisoned chalice — it invites pressure from foreign governments to influence the decision and provokes diplomatic backlash if the State Department does not accede to that pressure. As former State Department Legal Adviser John Bellinger has noted, similar dynamics forty years ago led to the FSIA, which shifted state immunity decisions from the executive to the courts, benefiting both the rule of law and the United States’ foreign relations. The sooner the executive branch puts down this new chalice, the better.