On Wednesday, the U.S. Supreme Court hears arguments in a major case testing whether torture victims living in the United States can sue their tormentors, who are also living here.
Before there was "Black Hawk down" or pirates preying on ships off Somalia, there was an ethnic war, a military dictator and a brutal regime in Somalia — a regime engaged in torture, abduction, summary executions and large-scale rape. In 1991, when the regime was overthrown, its prime minister, Mohamed Ali Samantar, fled first to Europe and then to the U.S., where he settled down quietly in suburban Virginia.
But some of his victims, granted asylum in the U.S., want to interrupt that peaceful existence and make him accountable. Five of them — tortured or raped, and one who even survived a firing squad under a pile of bodies — sued Samantar for damages.
The lead plaintiff is Bashe Yousuf, a Somali businessman who was doing volunteer work to clean up hospitals in 1983 when he and fellow volunteers were arrested. He was tortured for several months — subjected to electric shocks, trussed up and hung for hours, and waterboarded. And then he was held in solitary confinement for six years. In 1989, he was finally released and granted asylum in the United States, where he is now a citizen.
He is suing Samantar, he says, not because he fears for his safety anymore, but to make the man answer for his crimes.
"It's outraging me," he says, "that somebody like him can live in America. I just need a day in court. I want to hold him up [to show] what he did."
Yousuf says that Samantar had to know what was going on at the prison where political prisoners were held. The military ran the prison, and at the time, Samantar was the defense minister.
"He was the ultimate commander of that place," Yousuf says. "These people who were torturing me were his people," so "there is no way he cannot know."
Yousuf's lawsuit was brought under the 1991 Torture Victim Protection Act, which authorizes lawsuits in the U.S. against individuals who have committed torture or extrajudicial killings while acting in an official capacity for a foreign nation. The law only permits suits to be brought in the U.S. when the nation where the torture occurred has no adequate judicial remedy.
The lawsuit was initially thrown out in 2004. A federal judge in Virginia ruled that the former prime minister and defense minister of Somalia was immune from lawsuit under the 1976 Foreign Sovereign Immunities Act. But the Court of Appeals based in Richmond reversed that decision, declaring that the Foreign Sovereign Immunities Act protects not individuals, but foreign states. In addition, the appeals court noted that at the time the lawsuit was filed, there was no recognized state government in Somalia.
Samantar appealed to the U.S. Supreme Court, which will hear arguments in the case on Wednesday. His lawyers contend that individuals who acted in an official capacity are included in the protections of the foreign sovereign immunities law, that states don't act by themselves, that individuals are the instrumentalities through which states act. In short, what is the difference between the defense ministry of a country and the defense minister?
But lawyers for Yousuf say that the sovereign immunities law says nothing about individuals, and that the courts are not free to read into the law language that's not there. Moreover, they argue that the Torture Victim Protection Act, passed by Congress 15 years after the immunity law, would be null and void if individuals accused of war crimes could claim immunity.
Samantar, the accused war criminal, has an eclectic group of allies on his side. They include the government of Saudi Arabia, some pro-Israel groups and three former Republican U.S. attorneys general. The former attorneys general — Edwin Meese, Bill Barr and Richard Thornburgh — say that if this lawsuit is permitted to go forward, it could expose U.S. officials in other countries to similar suits.
But a contrary argument is made by the U.S. government, former diplomats and former high-ranking military officers. The government notes that because of the potentially significant foreign relations consequences of subjecting a foreign state to a lawsuit, the courts have traditionally deferred to the executive branch's judgment on who should be granted immunity.
In addition, the government contends that since the Foreign Sovereign Immunities Act says nothing about immunity for individuals, Congress did not intend the law to displace the judgment traditionally made by the executive branch, and that it would be particularly inappropriate for the courts to read that into the law.