The Creeping Success of Lawfare in the U.S.

The Creeping Success of Lawfare in the U.S.

Samantar v. Yousuf – Brought to you Courtesy of the U.S. Supreme Court’s Adherence to Strict Constructionist Principles

I have slightly exaggerated the title for purposes of illustration and to generate some discussion and analysis regarding this very important issue. The premise of this paper is that the U.S. Supreme Court in its decision of Samantar v. Yousuf, __S.Ct. __, 2010 WL 2160785 (U.S.) has reduced the legal defenses available to foreign government officials facing plaintiff’s actions in the United States courts. By holding that the Foreign Sovereign Immunities Act of 1976 (the “FSIA”), 28 USC Sections 1330, 1602 et seq. does not govern the determination of petitioner’s immunity from suit, the Court erased the applicability of a bright line defense for foreign government officials. Its holding, viewed by Justice Stevens as a narrow one, simply concluded that the FSIA applied immunity only to States and not to individual officials of a foreign state. In so holding, the Court rejected the District Court’s decision that a foreign state’s sovereign immunity under the FSIA extended to an individual acting in his official capacity on behalf of a foreign state. I have discussed below how the two Israeli officials, Avraham Dichter and Moshe Ya’alon, who were sued in the U.S. Courts recently would fare under the new standards pronounced in Samantar.

The Samantar Standard

Briefly, this case can best be analyzed perhaps under the time-honored rubric-“Bad facts make for bad law.” Plaintiffs brought claims for torture and killings against the Somali military, which it was alleged was under the command and control of Mohamed Ali Samantar (“Samantar”), while he served in the roles of Prime Minister, Vice President and Defense Minister. It was also alleged that he aided and abetted the commission of these abuses. Damages were sought under the Torture Victim Protection Act and the Alien Tort Statute.

Lack of a consistent application of sovereign immunity led the Congress in 1976 to enact the FSIA. As the Court pointed out, “Section 1602 describes the FSIA’s two primary purposes:

1. To endorse and codify the restrictive theory of sovereign immunity, which is confined to suits involving the foreign sovereign’s public acts and not to strictly commercial acts; and,

2. To transfer primary responsibility for deciding claims of foreign states to immunity from the State Department to the courts.”

The question presented to the Court was whether the FSIA applied to immunity claims of foreign officials. Despite the Petitioner’s attempt to include under the definition of an agency or instrumentality of a foreign state, “the words foreign official”, which is included in Section 1603 of the, the Court rejected this argument and based its holding

on a strict statutory construction. The narrow analysis that the Court employed is as follows: An agency or instrumentality means an entity and an entity refers to an organization rather than an individual. Hence a governmental official was not intended to fall under the rubric of the FSIA. Supra at 6.

In reaching that seemingly simple and apparent conclusion, the Court abrogated the bright line test of applying immunity to government officials under FSIA, which had been recognized by the Courts of Appeals in the Second, Fifth, Sixth, Seventh, Ninth and DC Circuits. See Supra at 4. In short, the Court in Samantar based its holding on Congress’s silence[1]in including officials in the definition of an entity. But, how does a state act but through the actions of its officials? This analysis was dismissed by the Court while it concluded that the FSIA was only concerned with immunity when a state is sued.[2] For individual immunity, the Court has provided such officials only with the protection afforded by the common law, a less definite defense and subject to numerous ad hoc factual determinations. Was he/she a government official? Was the government representative of the country? Were the elections held pursuant to democratic requirements? Was the official acting in his/her official capacity? Was he/she implementing government policy? Were his/her actions outside of the jus cogens standards recognized under international law? These are just a few of the questions that would render this immunity defense more problematic than the one afforded a State under the FSIA.

Legislative history dictated the Court’s conclusion that it was the intent of Congress to leave official immunity outside the scope of the FSIA. This was not the Congressional concern at the time of the FSIA’s enactment in 1976. As noted above, the effect of the Court’s holding will be to subject government officials to an ad hoc determination by Trial Courts in assessing the common law precepts of sovereign immunity.

I. Matar v. Dichter, 563 F.3d 9 (2nd Cir., 2009)

Avraham Dichter (“Dichter”) was the former Head of the Israeli Security Agency and was alleged to have personally participated in the decision to aerial bomb a suspected terrorist housed in a residential apartment building in Gaza City. The Appellants were either injured or lost family members as a result of the bombing. They brought this action under the Alien Tort Statute and the Torture Victim Protection Act, just like the Samantar plaintiffs.

The District Court dismissed the actions on grounds of immunity under the FSIA and in the alternative that the action presented a non-justiciable political question. Interestingly, the Court of Appeals affirmed the District Court decision but on different grounds. “In summary we need not decide whether the FSIA applies to a former official of a foreign government (a close and interesting question) because if the FSIA does not apply, a former official may still be immune under common-law principles…” Dichter at 17.

In contrast to the Samantar decision, the Court of the Appeals in the Dichter case has set forth in some detail the basis for common law immunity for former government officials.

“Common law recognizes the immunity of former foreign officials. At the time the FSIA was enacted, the common law of foreign sovereign immunity recognized an individual official’s entitlement to immunity for ‘acts performed in his official capacity'”. Citing to, Restatement (Second) of Foreign Relations Law of the United States, Section 66(f) (1965); see also, Heaney v. Gov’t of Spain, 445 F. 2d 501, 504 (2d Cir., 1971) (plaintiff’s concession that defendant was “at all relevant times ‘an employee and agent of the defendant Spanish Government'” sufficed to dispose of the claim against the individual defendant).

In reaching its determination as to whether Dichter was entitled to common law immunity, the Court deferred to the decisions of the political branch, the Executive Branch, on whether to take jurisdiction over actions against foreign sovereigns and their instrumentalities. While the Court did not reach a decision regarding the applicability of the FSIA to Dichter, it did nevertheless conclude that Dichter was entitled to common law immunity. While it would be unlikely that Dichter would have resulted in a different outcome were it to be brought after Samantar, the Samantar decision still narrows the legal defense available to a Dichter-like defendant and in contrast to the bright-line test of the FSIA, the common law immunity opens up the possibility of many variables affecting a Court’s decision. Perhaps through a determined effort Plaintiffs will succeed in carving out

an exception to jus cogens and persuade a Court that a scenario of “bad facts and bad law” should warrant a finding of no immunity for government officials even acting in his/her official capacity. In short, Samantar opens the door for more judicial discretion where certainty and predictability should be the standard in the relations between the U.S. and her allies.

II. Belhas v. Ya’alon, 515 F. 3d 1279 (D.C. Cir., 2008)

Moshe Ya’alon (“Ya’alon”)was a retired General in the Israel Defense Forces. This action was brought in 2005 under the same statutes as in the Samantar and Dichter cases-the Alien Tort Statute and the Torture Victim Protection Act. The action related to the shelling of a Lebanese town, Qana, where more than a hundred died and many others were injured.

While the Plaintiffs sought to eliminate Ya’alon’s immunity under the FSIA, the Court rejected the Plaintiff’s argument concluding that Ya’alon as an individual qualified as an agency or instrumentality of a foreign state. Citing to, El-Fadl v. Cent. Bank of Jordan, 75 F. 3d 668 (D.C. Cir., 1996); and Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir., 1990). In short, an individual qualifies for this immunity when he acts in his official capacity for the state. Junqquist v. Al Nahyan,115 F.3d 1020 (D.C. Cir., 1997).

Plaintiffs sought to hold Ya’alon liable under many creative legal theories. They included:

1. Termination of Service Argument

Under this argument, the FSIA did not apply to Ya’alon as he was no longer a foreign official between the time of the challenged acts and the bringing of the litigation. This claim was not decided as it was not asserted by the Plaintiffs in the District Court.

2. Jus Cogens Exception

This argument claims that since Ya’alon acted contrary to jus cogens norms of international law and this would necessarily mean outside the scope of his authority that would provide immunity from the suit.

3. Torture Victim Protection Act (“TVPA”)

Here, Plaintiffs claim that the TVPA abrogates the application of the FSIA to the extent that it applies to individuals. This argument is based on the statutory language of the TVPA which applies liability for an individual who under actual or apparent authority subjects an individual to a killing. The Court rejected this argument on the statutory grounds that the TVPA does not create an exception to the FSIA.

4. No Relief Against the Sovereign

Characterizing this argument as dubious, the Court did not decide this argument as it was not raised in the District Court.

5. Jurisdictional Discovery

This argument too was dismissed on grounds that it was well within the discretion of the District Court to deny such discovery.

Conclusion

While it is unlikely that either the Dichter or Ya’alon cases would have been decided differently under the new Samantar decision, it nevertheless opens the Defendants to an increased degree of uncertainty in resolving potential culpability for foreign officials acting under the proper authority of their positions. Ya’alon would certainly be decided on different grounds as the Court held him to be immune under the FSIA.

Paul M. Kaplan is a Partner at Arent Fox LLP in the New York Office where he is a member of the Litigation Practice Group. He has also been an Adjunct Professor of Law at Fordham Law School since 1991 where he teaches an advanced seminar in antitrust law.

[1] “Drawing meaning from silence is particularly inappropriate [when] Congress has shown that it knows how to [address an issue] in express terms.” Supra at 7.

[2] Petitioner urges that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of a state are acts of the state.” This is the act of state doctrine which is distinct from immunity and provides foreign states with a substantive defense on the merits. Supra at 8.