On August 28, 2012, U.S. district court Judge Leonie Brinkema awarded $21 million in compensatory and punitive damages against former Somali General Mohamed Ali Samantar, who has lived in Virginia since 1997. In a hearing before Judge Brinkema on February 23, 2012, General Samantar accepted liability and responsibility for damages for torture, extrajudicial killing, war crimes and other human rights abuses committed against the civilian population of Somalia during the brutal Siad Barre regime, the military dictatorship that ruled that country from 1969 to 1991.
In addition to being the first case ever to hold a Somali official accountable for human rights crimes committed under the Siad Barre regime, the case established two crucial precedents with respect to foreign sovereign immunity. First, in 2010, the Supreme Court ruled that the Foreign Sovereign Immunities Act does not shield the conduct of individual officials. Second, in 2012, the Fourth Circuit held that human rights crimes such as torture and crimes against humanity cannot be considered “official acts” shielded by immunity under the common law, stating that “under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.” In other words, immunity for “official acts” cannot extend to torture, extrajudicial killing, or any other universally recognized human rights violations because no foreign official has the authority to commit international crimes.
In addition, this case also established precedent in the D.C. Circuit Court of Appeals the U.S. government is required to comply with subpoenas for documents in private lawsuits, even when the government is not directly involved in the case.
Read a full chronology of the case below.
Yousuf v. Samantar: A Chronology
Early Litigation in the Eastern District of Virginia
CJA and pro bono co-counsel Cooley Godward LLP filed suit in the U.S. District Court for the Eastern District of Virginia on November 10, 2004, seeking to hold former Somali general Mohamed Ali Samantar responsible responsibility for extrajudicial killing; arbitrary detention; torture and cruel, inhuman, or degrading treatment; crimes against humanity; and war crimes carried out by soldiers under his command in northern Somalia in the 1980s.
The court stayed the case for two years in an attempt to solicit an opinion from the U.S. State Department as to whether General Samantar was entitled to head-of-state immunity, as he claimed.
D.C. Circuit Precedent: Subpoenas on the U.S. Government
During this period, CJA brought suit in the U.S. District Court for the District of Columbia against the U.S. State Department for failure to comply with our subpoena requested documents relating to human rights and military issues in Somalia. Although the lower court had sided with the State Department, on June 15, 2006, the D.C. Circuit Court of Appeals reversed the lower court and held that the U.S. government is required to comply with subpoenas for documents in private lawsuits, even when the government is not directly involved in the case.
U.S. Supreme Court Precedent: The Foreign Sovereign Immunities Act
After receiving no Statement of Interest from the State Department, the court reinstated the case on January 22, 2007. Shortly thereafter, Samantar moved to dismiss the lawsuit, arguing that he was shielded from civil liability by the Foreign Sovereign Immunities Act (FSIA). On April 27, 2007, the court granted Samantar’s motion. CJA appealed to the Fourth Circuit Court of Appeals. On January 8, 2009, the Fourth Circuit reinstated the case against Samantar, and, in June 2009, he filed a petition for writ of certiorari asking the United States Supreme Court to review the Fourth Circuit’s decision rejecting his claim of immunity under the FSIA. On September 30, 2009, the U.S. Supreme Court agreed to review the Fourth Circuit’s decision.
CJA and pro bono co-counsel Akin Gump Strauss Hauer & Feld presented oral argument at the Supreme Court on March 3, 2010, with U.S.-based clients – Aziz Deria and Bashe Yousuf – in attendance.
» Read a transcript of the oral arguments here.
In a 9-0 decision, the U.S. Supreme Court confirmed that Samantar was not shielded from suit by the FSIA, on the grounds that the FSIA does not immunize individual officials from suit. The Supreme Court did note that common law immunities might still apply, and it remanded the case for proceedings in the U.S. District Court for the Eastern District of Virginia.
Pre-Trial Litigation in Multiple Forums: Common Law Immunity, Discovery, Bankruptcy
In November 2010, Samantar moved to dismiss the suit once again, this time arguing that he was entitled to common law immunity and head-of-state immunity. CJA opposed the motion, and on January 6, 2011, the U.S. government, on behalf of the State Department, filed a Notice of Potential Participation stating that the government was considering the immunity issue and asking the court to wait January 31 to render a decision. The court agreed. On February 14, 2011, the U.S. filed a Statement of Interest stating that Samantar was not entitled to common law immunity in the case on the basis that (i) the U.S. government did not currently recognize a Somali government, and (ii) permanent residents of the United States, including Samantar, are typically subject to the jurisdiction of U.S. courts. The filing is significant because the U.S. government rarely intervenes in litigation to which it is not a named party, and it is extremely uncommon for the government to intervene to state that a defendant is not entitled to immunity. Based on the State Department’s filing, the very next day, the court ruled that the defendant’s common law immunity claim was not viable.
Following oral argument on the remaining issues in the motion to dismiss on April 1, 2011, the court denied Samantar’s motion without prejudice and ordered discovery to begin. Significantly, this meant counsel for the plaintiffs would be able to take Samantar’s deposition and ask him directly why he ordered a systematic attack on unarmed Somali civilians, including the torture, rape, and mass execution of countless victims. The ruling also paved the way for CJA to take depositions of key witnesses in Africa, including that of Colonel Yousuf Sharmarke, a Somali military judge who had overheard General Samantar giving orders to bombard civilian areas indiscriminately, Elizabeth Ohene, a BBC correspondent who had interviewed General Samantar for a broadcast during his visit to London in 1989, in which he admitted to being in Hargeisa in command and control of the military, and to giving the final okay for the May 1988 operations there, and Ibrahim Abdullahi, who was forced by soldiers under Samantar’s command to bury countless bodies of civilians in Hargeisa as a result of these operations.
The court also denied Samantar’s motion for reconsideration of his common law immunity claim. On April 29, 2011, Samantar filed a notice of interlocutory appeal to the Fourth Circuit claim. Judge Brinkema issued a scheduling order on May 3 and denied Samantar’s motion to stay the scheduling order on May 18, certifying his interlocutory appeal to the Fourth Circuit as frivolous.
Samantar filed a motion for summary judgment on November 21, 2011, which the court denied in December.
Trial was scheduled to begin on February 21, 2012. After filing and losing two more motions to stay the proceedings (one at the trial court level and one at the appellate level), on the evening of February 19, Samantar filed for bankruptcy, which by operation of statute deprived the trial court of jurisdiction and imposed an immediate stay of the proceedings. Attorneys from CJA and Akin Gump flew into action, filing and winning an emergency motion to lift that stay on February 21; they secured a new trial date of February 23.
Trial: Samantar Concedes Liability for Mass Atrocities
On the morning of February 23, Samantar personally appeared in court to enter his default, conceding both liability and damages. General Samantar accepted responsibility for these crimes under oath and in open court, in the presence of survivors, including CJA’s clients: Bashe Yousuf, then a young business man who was arbitrarily detained, tortured, and kept in solitary confinement for over six years; Aziz Deria, whose father and brother were abducted by Somali soldiers, threatened with execution, and never seen again; Buralle Mohamoud, a rural goat herder, who was abducted and tortured by Somali soldiers, along with his two brothers, who were summarily executed; and Ahmed Gulaid, then a Somali soldier, who was arbitrarily detained and shot by firing squad, but miraculously survived, waking up under the bodies of other Somali soldiers with whom he had served. Significantly, Judge Brinkema questioned Samantar directly regarding his entry of default on all of the claims against him. Read the transcript here. After finding Samantar liable for the plaintiffs’ injuries, Judge Brinkema proceeded with a hearing on damages. CJA and Akin Gump attorneys presented the testimony of all our plaintiffs and several other key witnesses, as well as documentary evidence in support of compensatory and punitive damages. Read transcripts of the damages trial here [vol. 1] and here [vol. 2]. Read the court’s judgment and $21 million damages award, handed down on August 28, 2012, here.
Fourth Circuit Precedent: Common Law Immunity
On November 2, 2012, the U.S. Court of Appeals for the Fourth Circuit once again sided with our clients against Samantar. In this landmark victory, CJA litigated the first case to consider the “common law immunity” of foreign officials in a decision that both denies absolute deference to the executive branch and denies immunity for human rights abuses like torture and extrajudicial killing. The Fourth Circuit’s decision marks a crucial step forward in the fight against impunity.
The diplomatic context of the case shifted, however. In January 2013, the U.S. government recognized the government of Somalia for the first time since 1991. Two months later, the Prime Minister of the newly recognized state issued a letter to the U.S. State Department, requesting that Samantar be granted immunity. On March 3, 2013, Samantar filed his second petition for certiorari with the U.S. Supreme Court, this time appealing the Fourth Circuit’s denial of common law immunity.
CJA filed its opposition to Samantar’s petition on May 24, 2013. Later that year, on December 20, the Solicitor General (SG) filed a brief urging the court to issue a “GVR”: an order granting the petition, vacating the Fourth Circuit decision, and remanding the case to the district court for a new determination on the common law immunity issue. The SG argued that changed circumstances justified the GVR and remand to the district court. In other words, the U.S. government’s recognition of the Somali government, and the ensuing (and contradictory) diplomatic communications from the Somali government (requesting, then waiving, then purporting to reinstate the immunity request on Samantar’s behalf) constituted changed circumstances. However, on January 13, 2014, the U.S. Supreme Court handed down another important victory for our plaintiff clients. The Court denied Samantar’s petition, leaving the Fourth Circuit’s decision intact.
In addition to the interlocutory appeal on the immunity issue, Samantar submitted a second appeal to the Fourth Circuit on December 10, 2012, arguing that the district court was temporarily divested of jurisdiction over the case pending a determination on Samantar’s appeal of the immunity determination. On February 3, 2014, the Fourth Circuit dismissed Samantar’s final appeal as moot in line with its previous reasoning on the immunity issues in play. On May 5, 2014, Samantar filed his third and final petition for certiorari to the U.S. Supreme Court. The final petition renewed and reiterated his arguments. CJA again opposed.
On March 9, 2015, the Supreme Court declined certiorari over this second petition, at last making the $21 million judgment against Samantar final.