Georgetown Security Law Commentary

4th Circuit removes FSIA hurdle to most torture suits

By Sarah Wappett-Kendall, CNSL Research Assistant    

It has long been the rule that the Foreign Sovereign Immunities Act (FSIA) protects not just foreign governments but also their officials from suit in U.S. courts. However, in the recent case of Yousuf v. Samantar, the Fourth Circuit held that the FSIA does not protect individuals from suit under the Torture Victims Protection Act (TVPA). The district court had followed the majority of circuits and had ruled that the FSIA provides immunity to individuals who acted as an “agency or instrumentality” of a foreign state. The Fourth Circuit, however, split with its sister circuits, holding that the statutory construction of the FSIA does not allow it to apply to individuals (and certainly not to individuals who are no longer government officials). It held that common law doctrines of act of state immunity might apply, but deciding cases on the basis of these doctrines introduces more uncertainty and takes far longer because the Executive branch has to weigh in than the simple jurisdictional rule of FSIA. The Fourth Circuit’s view is (1) a better outcome in the instant case; (2) a better reflection of Congress’s intent in drafting the TVPA; and (3) a better protection of separation of powers; but it will encourage more suits against properly immune defendants (such as Belhas and Matar noted below) and force them to litigate on the merits in order to avail themselves of common law immunities such as the act of state doctrine.

Ali Samantar, was the Somali government official in charge of the nation’s armed forces in the 1980s and 1990s as First Vice President, Minister of Defense, and then Prime Minister of the Democratic Republic of Somalia. Plaintiffs allege that the Somali military, under the direction of General Samantar, disregarded the distinction between civilians and rebels and allege a litany of human rights abuses and war crimes including extrajudicial killings, torture, and arbitrary detentions. Plaintiffs brought suit in the Eastern District of Virginia under the TVPA and the ACTA against Samantar, who currently resides in Virginia. The court dismissed the complaint for lack of subject-matter jurisdiction on April 27, 2007. Plaintiffs appealed to the Fourth Circuit.

In considering the TVPA, the majority of courts have reasoned that Congress intended that FSIA should immunize all conduct expressly ratified by foreign governments, even when the challenged conduct is torture or other egregious human rights violations (see example here). FSIA therefore protects Samantar under the majority view, and the district court ruled accordingly when the government of Somalia wrote in support of Samantar claiming that any actions, including all those alleged in the plaintiff’s complaint, fell within the scope of his official duties.

Courts have ruled that individuals acting in their official capacities are also subject to FSIA immunity. However, defendants acting outside their official capacities do not. An official of a foreign government is acting within his official capacity when two conditions are met: (1) the defendant’s actions are lawful according to the laws of defendant’s state (and thus within the scope of his authority), or (2) those actions were authorized by a public admission of that foreign state. Under the majority view, FSIA immunity has largely been up to the defendant’s home government’s decision to ratify conduct or not.

Previous cases have emphasized whether the government in question was willing to ratify the controversial acts of its officers. In two recent cases, Israeli generals were sued under TVPA for ordering bombings against Lebanon and Gaza. In these cases, the Israeli government wrote to the State Department requesting that the suits be dismissed as the generals had been acting in their official capacities and asserting that allowing the suits to proceed would have been akin to suing the State of Israel itself. The U.S. State Department submitted a Statement of Interest (SOI) in Matar (but not Belhas) urging dismissal based on sovereign immunity. Both Belhas and Matar were dismissed based on immunity under FSIA, reflecting the position of the majority of the Circuits. In Yousuf, as in Belhas and Matar, the government of the defendant wrote on his behalf effectively ratifying all of his alleged actions. Without any evidence that the defendant acted in a personal or private capacity or that his actions were unlawful and not authorized by the state, the majority view is that Samantar should receive immunity under FSIA.

The Fourth Circuit, however, took a hard look at the linguistic construction of the FSIA and ruled that it does not afford immunity to individuals. Without analyzing the assessments and conclusions over the statute’s language, the result is that, as Judge Duncan noted in his concurring opinion, Samantar and future defendants will have to rely on “common law immunities that predate the FSIA” such as act or state and head of state immunity. While those potential defendants who would be immune would probably be the same, the change would not likely protect them from having to defend against a suit on the merits. The ratification of an individual’s actions by his home government no longer offers automatic immunity in U.S.courts (at least, in the Fourth Circuit). It would be subject to the opinion of the Executive Branch as articulated by the State Department as to whether act of state or head of state immunity should apply.

This outcome better respects Congressional intent for the TVPA and the ACTA as well as the legal principles of allowing the Executive to guide matters of foreign relations. This arrangement will permit the results in Belhas and Matar but also allow suits against defendants like Samantar to go forward. The trade-off is that, under the Fourth Circuit’s view, properly immune defendants will have to litigate a suit longer before it is dismissed under the common law act/head of state immunity.

Torture Triptych

By Professor David Luban

In Friday night's presidential debate, John McCain brought up the torture of prisoners as one Bush administration policy he opposed. Then he re-emphasized his point: "And we've got to...make sure...that we don't ever torture a prisoner ever again."  Barack Obama agreed, giving McCain "great credit on the torture issue."  (The debate transcript is here.)

What makes these comments remarkable is that the Bush administration has never conceded that it tortured anyone.  Bombarded them with ear-splitting rock music, yes.  Sexually humiliated them, yes. Subjected them to weeks of intensive sleep deprivation, yes.  Waterboarded them, yes.

And more.  Consider the remarkable testimony by Air Force Reserve Col. Steve Kleinman before the Senate Armed Services Committee last week.  (Here is the Washington Post article.) Kleinman visited Iraq in 2003 to observe interrogators at work and advise them.  He was appalled by what he saw.  Interrogators forced a detainee to his knees beneath a spotlight, and for the next thirty minutes shouted questions at him and slapped his face, hard, after every answer.  They tore the clothes off another detainee and ordered that he be made to stand continuously for twelve hours, or until he passed out.  They used stress positions and sleep deprivation.  When Kleinman protested, they were puzzled – they saw no problem.  And their superiors did nothing to rein them in, even after Kleinman went up the chain of command.

By now it's clear why.  Toxic legal opinions from the Justice Department's Office of Legal Counsel proclaimed that the Geneva Conventions offered no protection to detainees –  not even in Iraq.  And, just as importantly, the notorious Bybee/Yoo memo defined torture so narrowly that only pain equivalent to that of "organ failure or death" counts as torture.

(By the way, what IS pain equivalent to that of organ failure or death?  I don't know, and chances are you don't either.  John Yoo, who devised this infamous formula, offered it to explain more precisely what the vague phrase "severe pain" in the federal torture statute means.  But this was a fraud.  I know what severe pain is like because I've experienced it a few times in my life.  Millions of Americans have, including every woman who has ever given birth without anesthesia, every man who's been hit hard in the testicles playing sports (they don't call it the ball field for nothing), every victim of a frayed or herniated disc.  But pain equivalent to organ failure or death?  Thankfully, I have no idea what that is like.  Which phrase is more precise or conveys more meaning?  It seems pretty clear that Yoo's formula was never intended to make the phrase "severe pain" less vague – it was intended to reassure interrogators that almost nothing they do would count as torture.)

Federal law makes official torture – the intentional infliction of severe mental or physical pain or suffering by government personnel – a serious felony carrying a potential death sentence.  The Bybee/Yoo Memo was meant to provide torturers with a get-out-of-jail-free card.  In the wake of the Abu Ghraib scandal, OLC withdrew the Bybee/Yoo memo and replaced it with the Levin Memo, which rejects the "organ failure or death" formula.

But its ghost lives on.

In December 2006, the government issued an indictment against Chuckie Taylor – one of several aliases used by the son of Liberian president Charles Taylor.  (Taylor the Father is currently on trial at the Hague for financing and supporting atrocity crimes in Sierra Leone.)  Chuckie Taylor headed the Anti-Terrorist Unit in his father's government, and he is charged with torturing an anonymous prisoner "to obtain information about actual, perceived or potential opponents of the Taylor presidency." Specifically, the indictment charges him with forcing the victim at gunpoint to hold scalding water in his hands, pouring boiling water on the victim, burning him with a hot iron to the flesh, rubbing salt in his wounds, and shocking his body, including his genitals, with an electric device.  The prosecution will offer evidence that Taylor tormented captives with molten plastic and ordered stinging ants shoveled into a pit with prisoners.

U.S. authorities arrested Chuckie Taylor in Florida for passport fraud (born in Boston, he's a U.S. citizen).  The torture prosecution is remarkable because it is the first U.S. prosecution EVER under the federal anti-torture statutes. So far, it's the only one.  Now, almost two years after the indictment, Chuckie Taylor's case is about to go to trial.

When I first read the indictment, I wondered whether Taylor might enter a necessity defense based on the Bybee/Yoo memo.  That memo, after all, argued that torture could be justified under a necessity theory if it was done to protect national security from terrorists.  Taylor headed an "anti-terrorist" unit (although Liberians called it "the Demon Forces"), and the indictment itself concedes that the torture was for purposes of information gathering to protect the lawful government of Liberia – you are entitled to put scare-quotes around "lawful" – from those who would bring it down.

The news accounts I've seen don't mention the necessity defense (which the Levin Memo declined to discuss).  But The Guardian reports that prosecutors and defense attorneys are already sparring over the definition of torture that will go in the jury instructions.  Taylor's "attorneys say the law requires a higher level of pain - that ordinarily ...associated with death, organ failure or serious impairment of body functions."

It's nice to know that the Bybee/Yoo Memo lives on, offering a resource for defense lawyers to sow confusion in the minds of jurors on behalf of the commander of the Demon Forces.