Washington, D.C. – CJA announced today that nine amicus curiae briefs were filed with the United States Supreme Court yesterday in support of the respondents in the case of Samantar v. Yousuf, NO. 08-1555. In this case, the Court will decide if former foreign government officials – who, after using their power to order torture, rapes, and killings of innocent civilians – can choose to live in the United States while refusing to submit to its laws and refusing to accept responsibility for their actions.
The key issue under review by the Supreme Court is whether Fairfax, Virginia resident and former Somali Defense Minister Mohammed Ali Samantar can be held accountable under the Torture Victim Protection Act (TVPA) – or whether he is immune under the Foreign Sovereign Immunities Act from civil suit in the U.S. for human rights abuses committed in Somalia. The TVPA, passed by Congress in1991, provides that the U.S. will not be a safe haven for perpetrators of the worst human rights abuses and that foreign government officials who chose to come to the United States after torturing and killing cannot claim to be above the law and will be held accountable for their actions in U.S. courts.
Some of the briefs filed in support of the respondents include:
Members of Congress: Senator Arlen Specter (PA), Senator Russ Feingold (WI), and Rep. Sheila Jackson Lee (TX) state that Congress intended for the Torture Victim Protection Act to apply to individuals and that the legislative record shows that Congress considered the Foreign Sovereign Immunities Act (FSIA) when the TVPA was written, and determined that the FSIA would not bar suits under TVPA. Sen Specter authored the TVPA, which was signed into law in 1991.
Military Officials: The brief from retired military officials, including three star generals, states that the military prohibition on torture and stringent accountability measures encourage reciprocity with other countries by, among other things, allowing the U.S. to demand better protection for its servicemen and women. In addition, military officials write that human rights violators like Samantar create unstable countries that lead to U.S. military involvement. They question why – after putting U.S. troops in harms way to battle people like Samantar – the U.S. would turn around and provide Samantar with a safe haven years later.
Career Foreign Service Diplomats: Ambassador Thomas Pickering is among the career diplomats who state that withholding immunity will not harm U.S. foreign policy. The brief argues that human rights violators must be held accountable and that sheltering former foreign officials behind an impenetrable wall of sovereign immunity is inappropriate.
Holocaust Survivors and Darfur Groups: Holocaust survivors and Darfur groups – including SaveDarfur.org which represents over 130 million people — argue that the world learned from the Nuremberg trials that individuals can be held accountable for their bad deeds and that they cannot hide behind government immunity.
U.S. Government: The United States Government writes that foreign officials’ immunity should be governed by the principles of immunity articulated by the Executive Branch – not the FSIA. The brief states that the FSIA sets forth a general rule of immunity for a “foreign state,” but makes no reference to the immunity of individual foreign officials. The Government states that the FSIA’s text, structure and legislative history demonstrate that Congress did not intend the FSIA to govern such determinations or to displace Executive Branch principles governing the immunity of current and former officials. The brief raises the question of whether an individual like Samantar who engages in torture and extrajudicial killing and then chooses to reside in the US would merit immunity under common law.
Additional amicus curiae briefs were filed yesterday by:
Somali academics/historians including I.M. Lewis, Lee Cassanelli, Peter Pham, Gerard Prunier, and Dr. Hussein Bulhan
Somaliland Foreign Minister Mr. Abdillahi Mohamed Duale
Human rights groups, including Human Rights First, Amnesty International, Human Rights Watch, and religious organizations
International and Comparative Law professors, including Frederic Kirgis, Ved Nanda, Leila Sadat, Mathias Reimann, Steven Ratner, Mary Ellen O’Connell and David Bederman
Professors of International Dispute Resolution, including Burbank, Richard Bixbaum, David Caron, Kevin Clermont, William Dodge, Thomas Lee, Michael Ramsey and Edward Swaine
The Center for Justice and Accountability is working with lead Supreme Court counsel Patricia Millett of Akin Gump Strauss Hauer & Feld LLP and co-counsel Cooley Godward Kronish LLP on this matter. This case is part of Akin Gump’s pro bono human rights & refugee practice.