Lawfare
Friday, December 13, 2013
On Wednesday, the Solicitor General filed an amicus brief urging the Supreme Court to grant, vacate, and remand (“GVR”) the Samantar case to the Fourth Circuit after that Circuit’s surprising decision last year holding that foreign government officials are not entitled to foreign official immunity for acts alleged to violate jus cogens norms.
I have previously explained here and here why the Fourth Circuit’s decision was wrong as a matter of both domestic and international law
and why the Solicitor General should recommend that the Supreme Court
reverse it. The SG’s brief instead appears to be an effort to keep the
Administration’s options open in this long-running lawsuit a bit longer.
The Samantar case is an ATS and TVPA suit filed in 2004 by
former Somali villagers against the former Defense Minister of Somalia,
Mohamed Ali Samantar, for human rights violations
committed by the Somali military in the 1980s. In 2011, the Obama
Administration filed an unusual Statement of Interest in the case
concluding that Samantar was not entitled to immunity because there was
no government in Somalia recognized by the United States to request
immunity for him. The Administration’s SOI also concluded that it was
appropriate not to give immunity to Samantar because he had become a
U.S. resident and should therefore be subject to the jurisdiction of
U.S. courts. The Fourth Circuit held that the Administration’s
Statement of Interest was not binding and instead reached its own
independent conclusion that former foreign government officials cannot
have immunity for jus cogens violations.
Rather than urge the Court to reverse the Fourth Circuit’s decision,
the SG recommends that the Court remand the case to the Fourth Circuit
to consider in light of “intervening events,” namely that the Obama
Administration has now recognized a government in Somalia and the Prime
Minister of Somalia of the newly recognized government has requested
immunity for Mr. Samantar. The SG does not state, however, whether the
Administration will reverse its previous determination and conclude that
Samantar is now entitled to immunity. Indeed, to muddy the waters
further, the brief notes that the Prime Minister of Somalia who
requested immunity for Samantar was recently subject to a vote of no
confidence by the Somali Parliament and is likely to be removed from
office.
The SG’s brief argues that the Fourth Circuit decision was erroneous
in two respects. First, the Fourth Circuit erred by concluding that
courts are not required to defer to Executive branch
determinations of immunity or non-immunity in cases involving official
acts or conduct-based immunity, as opposed to head-of-state or
status-based immunity (where the appeals court
concluded that courts are bound by Executive determinations). The SG
argues that courts are required to defer to Executive branch
determinations in all cases as a constitutional matter in deference to the Executive branch’s responsibility to manage foreign relations.
Second, the SG argues that the Fourth Circuit erred by creating a new categorical exception to immunity for jus cogens violations. Oddly, the SG does not explain why a jus cogens exception to immunity is inconsistent with both domestic and international law. Rather, the SG simply argues that the jus cogens
exception created by the Fourth Circuit is inappropriate because it was
not based on a determination made or principles suggested by the
Executive branch. The SG thus misses an opportunity to explain why the
Fourth Circuit’s decision is wrong as a matter of substantive immunity
law, rather than as a matter of process (albeit constitutionally
mandated process). The SG does note, in passing, that the Executive
Branch has suggested immunity for former foreign government officials in numerous cases where jus cogens violations were alleged, and that courts have deferred to the Executive branch suggestions in all of these cases.
The SG’s brief also inexplicably fails to explain to the Court the
broader, and negative, policy implications of the Fourth Circuit’s
decision for the U.S. Government. If allowed to stand, the Fourth
Circuit’s decision would mean that foreign government officials would
not have immunity in the Fourth Circuit even if the Executive branch
suggests immunity for them. And it could create an unfortunate
precedent that could encourage courts in other countries not to
recognize the immunity of former U.S. officials in those countries. I
am surprised that the SG did not explain these broader ramifications of
the Fourth Circuit’s holding, rather than focusing only on the Fourth
Circuit’s failure to defer to the Executive branch.