STEVE INSKEEP, host:
Now, before the disaster, Chile was already wrestling with a legacy of past brutal governments. So is the nation we'll talk about next. A former leader of Somalia is accused of torture. And today those accusations come before the United States Supreme Court.
The former leader now lives in the U.S. So do some of the torture victims. The question is whether the victims can sue in American courts for the acts that took place overseas. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: 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 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 the United States, where he settled down quietly in suburban Virginia. But some of his victims, granted asylum in the United States, want to interrupt that peaceful existence and make him accountable. Five of them tortured, raped, 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 hes now a citizen. He says hes outraged that Samantar is here and wants to make him answer for his crimes.
Mr. BASHE YOUSUF (Somali Torture Victim): It's outraging me - somebody like that can live in America.
TOTENBERG: Yousuf says that Samantar had to know what was going on at the military prison where he was held. At the time, Samantar was the defense minister.
Mr. YOUSUF: He was the ultimate commander of that place. The people who were torturing me were his people. There is no way he cannot know.
TOTENBERG: Yousuf's lawsuit was brought under the 1991 Torture Victims Protection Act, which authorizes lawsuits in the U.S. against individuals who have committed torture or extra-judicial 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 Sovereign Immunities Law protects not individuals, but foreign states. In addition, the appeals court noted, 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 today. His lawyers contend that individuals who act 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.
But lawyers for Bashe Yousuf reply 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.
The accused, Mohamed Samantar, 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 say that if this lawsuit is permitted to go forward, it could expose U.S. officials in other countries to similar lawsuits.
But a contrary argument is made by the U.S. government, former diplomats and former military officers. The government notes that because of the potentially significant foreign relations consequences of subjecting a foreign state to suit, 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.
Nina Totenberg, NPR News, Washington.
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