Foreign official immunity after Samantar: a United States government perspective.

AuthorKoh, Harold Hongju

TABLE OF CONTENTS I. THE WORLD BEFORE SAMANTAR II. SAMANTAR AND ITS IMPLICATIONS III. THE EMERGING POST-SAMANTAR PROCESS A. Five Tenets of Official Immunity Practice B. Non-Samantar Status Issues C. Non-Samantar Procedural Issues D. The Sound of Silence I am delighted to speak here at Vanderbilt regarding the U.S. Government's perspective on Foreign Official Immunity after Samantar v. Yousuf. (1) In the Samantar case, the U.S. Supreme Court unanimously held that the immunity of foreign government officials sued in their personal capacity in U.S. courts, including for alleged human rights violations, is not controlled by the Foreign Sovereign Immunities Act of 1976, (2) but rather, by immunity determinations made by the Executive Branch. Let me break my topic today into three parts: first, the world of foreign official immunity as it existed before the Samantar case; second, the Supreme Court's decision in Samantar and its implications; and third, the State Department's "New Samantar Process," which has been emerging since the Supreme Court's decision--focusing, in particular, on distinguishing what we call Samantar issues from non-Samantar issues, the effect of a State Department suggestion of immunity, and the effect of State Department silence with respect to a foreign official's claim of immunity.

  1. THE WORLD BEFORE SAMANTAR

    As almost every American international lawyer knows, the world before the Foreign Sovereign Immunities Act was one in which the U.S. Executive Branch was long considered the appropriate body to determine official immunity by providing courts with so-called suggestions of immunity. The State Department's practice regarding foreign official immunity grew out of its historical practice regarding foreign sovereign immunity. The 1812 decision in The Schooner Exchange v. McFaddon set out the early framework for foreign sovereign immunity, whereby wrongs perpetrated by foreign sovereigns were recognized as appropriate "for diplomatic, rather than legal," resolution. (3) Due to the potentially significant foreign policy consequences of subjecting another sovereign state to suit in our courts, the courts looked to the "political branch of the government charged with the conduct of foreign affairs" to decide whether immunity should be recognized. (4)

    Traditionally, the State Department provided the judiciary with suggestions of immunity, based upon the Department's judgments regarding customary international law and reciprocal practice. (5) Before 1952, the State Department followed a theory of absolute foreign sovereign immunity for friendly sovereigns. Under that doctrine, "a sovereign cannot, without [its] consent, be made a respondent in the courts of another sovereign" regardless of the nature of the acts alleged to have been committed. (6) The Department would file "suggestions of immunity" with the court, invoking considerations of international law and international comity to request sovereign immunity in particular cases, and the U.S. courts generally gave absolute deference to those suggestions. (7) As the State Department's practice with regard to suggestions of immunity evolved over time, courts came to adopt a two-track process, under either track looking to State Department policy to see whether official immunity was appropriate. Under one track--which I will call the "suggestion" track--if the State Department offered a suggestion of immunity, the court would allow that immunity and dismiss the case. Under the second track--which I will call the "silence" track--if the State Department stayed silent in a case where a foreign official's immunity was at issue, the court would decide on its own "whether all the requisites for such immunity existed," considering "whether the ground of immunity is one which it is the established policy of [the State Department] to recognize." (8)

    In 1952, Acting Legal Adviser of the State Department, Jack Tate, (9) sent a famous letter to the Acting Attorney General that became known as the "Tate Letter." (10) The Tate Letter announced the United States' adherence to the "restrictive theory" of sovereign immunity, which extended immunity to a foreign state for its public acts, but not for its commercial acts. Tate pointed out that the "widespread and increasing practice on the part of governments of engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts" and that this shift away from absolute immunity was consistent with the practices of other countries. (11) The Tate Letter marked a tectonic shift in immunity theory, inasmuch as it recognized that the commercial revolution, in which virtually all foreign states had become involved, had caused their entry into the global marketplace in a way that required a move away from an unyielding doctrine of absolute foreign sovereign immunity toward a more nuanced doctrine of restrictive foreign sovereign immunity by executive suggestion.

    After 1952, the State Department relied upon the restrictive theory to inform any suggestions of immunity it provided to courts, whether with respect to foreign sovereigns, agencies or instrumentalities, or foreign officials, and courts largely continued to defer to the Department's case-by-case suggestions. (12) During the next quarter century, the State Department rendered only four reported determinations with respect to immunity, in the absence of an applicable treaty or statute, in suits against individual foreign officials who were not heads of state. (13)

    In several respects, the practice of executive suggestions of immunity with respect to foreign states was flawed. First, as several Legal Advisers acknowledged, the informality of the State Department's internal procedures did not provide the sort of process that sovereign states believed was due. (14) Second, critics charged that the State Department did not always follow the Tate Letter criteria, leading to inconsistent results under the State Department process. (15) Third, the process arguably brought too much political pressure to bear on the State Department, which was incessantly lobbied by foreign states to support immunity requests. (16) Yet despite these criticisms, the Department found it useful to retain flexibility to take foreign relations concerns into account on a case-by-case basis.

    Partly in response to these critiques, in 1976, with State Department support, Congress passed the Foreign Sovereign Immunities Act (FSIA), which codified the standards for foreign state immunity and "transferred primary responsibility for immunity determinations to the Judicial Branch." (17) From the beginning, the Executive Branch saw the FSIA, by its terms, as applying only to foreign states, not to foreign officials, (18) and continued to assert that State Department immunity determinations were required in cases involving foreign officials. The courts divided on this issue. (19) In 1992, Congress legislated in the area of human rights litigation by enacting the Torture Victim Protection Act (TVPA), which does not expressly speak to immunity, but creates a cause of action for damages against individuals who, "under actual or apparent authority, or color of law, of any foreign nation," commit acts of torture or "extrajudicial killing." (20)

  2. SAMANTAR AND ITS IMPLICATIONS

    In 2010, in Samantar v. Yousuf, the Supreme Court accepted the U.S. Government's position that the FSIA does not govern immunity for foreign officials sued in their personal capacity. Defendant Mohamed All Samantar had served as First Vice President, Prime Minister, and Minister of Defense of Somalia under the Siad Barre regime in the 1980s, before fleeing to the United States. Somali plaintiffs, who included naturalized U.S. citizens, brought suit against Samantar under the TVPA and the Alien Tort Claims Act (ATCA) in federal court in Virginia, alleging his command responsibility for terrorizing the civilian population of Somalia with widespread and systematic use of torture, arbitrary detention, and extrajudicial killing. Although the United States had recognized the Barre regime, the United States has not recognized any government since its fall. The U.S. Government declined to participate in the litigation before either the district court or the Fourth Circuit.

    After the district court dismissed, the U.S. Court of Appeals for the Fourth Circuit reversed, concluding--consistent with the U.S. Government's longstanding view--that the FSIA applies only to foreign states and not to foreign officials, and remanded the case to the district court for consideration of what immunity, if any, should apply in these circumstances. The Supreme Court unanimously affirmed, clarifying that, as we had said, the Foreign Sovereign Immunities Act does not govern the immunity of foreign officials. The Court held that the FSIA applies only to states, not individual officials. The decision turned on statutory construction; the Court held that the clear language of the statute, coupled with its legislative history, indicated that Congress did not intend to include foreign officials. (21) The Court emphasized that the trial court could consider on remand whether Samantar might be entitled to common law immunities, but declined to offer guidance as to the scope of these immunities.

    What are the implications of the Samantar decision? Obviously, we in the U.S. Government believe that Samantar was correctly decided. The decision was consistent with the longstanding executive branch view that the text, structure, and legislative history of the FSIA demonstrate that Congress did not intend the FSIA to govern individual officials' immunity. As a practical matter, based on historical experience, unless Congress passes legislation to govern official immunity, as it did with respect to foreign state immunity in the FSIA, we expect courts will again look to the State...

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