Bradley and Goldsmith on Government Officials and the FSIA

by Roger Alford

Curtis Bradley and Jack Goldsmith have a nice piece in Green Bag on foreign sovereign immunity as applied to current and former government officials. The article tees up the issues that will be presented in Samantar v. Yousef. Here is a key part of their argument:

We agree with those courts that have concluded that suits against individual foreign officials are not easily accommodated within the “agency or instrumentality” language of the FSIA. There is, however, a better textual basis for applying the FSIA: these suits can be considered to be directed against the foreign state itself for purposes of the FSIA. Since a state acts through individuals, a suit against an individual official for actions carried out on behalf of the state is in reality a suit against the foreign state, even if that is not how the plaintiff captions his or her complaint. This approach is consistent with the FSIA’s definition of “foreign state,” which does not purport to be comprehensive, but rather simply “includes” various entities, including agencies and instrumentalities.

Bradley and Goldsmith then argue that this reading is consistent with (1) jurisprudence from the Ninth and Second Circuits; (2) the pre-FSIA common law approach; and (3) international law understandings of foreign sovereign immunity; and (4) the approach taken by foreign courts.

The arguments are persuasive and I would not at all be surprised if the Supreme Court follows an approach similar to this.

The other analogy that Bradley and Goldsmith do not reference but that I suspect will weigh heavily in the balance in Samantar is the approach taken in the domestic context with the Federal Tort Claims Act. Under the FTCA, if a suit is brought against a federal official for a common law tort, the federal official is dismissed from the suit and the federal government becomes the defendant.

If this approach is taken, then the debate will turn to whether government officials that engage in international law violations acted within the scope of their authority.

http://opiniojuris.org/2009/10/15/bradley-and-goldsmith-on-government-officials-and-the-fsia/

3 Responses

  1. I recognize there might be a little interest for Jack Goldsmith personally to have this be the line of thought that the court takes because of his prior work. 

    The question that I wonder about is that if you go down this path then you get the Nelson v Saudi Arabia kind of act of state doctrine and/or sovereign immunity idea being teed up with the effect that no one gets relief from torture.   That sure does not sound like torture victim protection but more like torturer protection.
     
    It seems Bradley and Goldsmith are doing one more elegant approach that has the effect of eviscerating anti-torture law in this case in statute.  Arguing for a solution that prevents torture victims from getting the substantive relief that the Torture Victim Protection Act was trying to reach is really just protecting torturers – especially those with official imprimatur.  Will not fly with me.  But, I despair of our courts really giving a damn.  That’s why we need the criminal cases so that people go to jail at high-levels for the torture they put in place in this country.

    Best,
    Ben

  2. Ben,

    You should read the article before you reach this conclusion.  The end of the article addresses other legitimate means to hold those who violate human rights accountable, including (1) accountability in foreign courts; (2) waiver of immunity by the state; (3) ratifying a treaty that criminalizes acts in such a way that it eliminates state immunities; (4) becoming a member of the ICC which abrogates state immunities for crimes within the ICC’s jurisdiction; and (5) amending the FSIA.

    You also are completely ignoring domestic law prohibitions on torture, including 18 U.S.C. 2441 and 18 U.S.C. 2340 et. seq.

    Roger Alford

  3. Roger,

    I think the FTCA analogy is powerful, particularly given that at least one D.C. district court judge found U.S. officials accused of torture to be acting within the scope of their employment, even assuming the torture allegations to be true!  I find the logic disturbing but there you have it.

    However, I have a different thought related to this.  It does not appear that the 4th circuit addressed it…and  I am uncertain whether Bradley and Goldsmith address it either.  Might we not conclude, at least as to the Torture Victim Protection Act claims, that regardless of FSIA’s generally applicability, the act clearly intends to subject individual foreign officials to suit?  I believe it says something like “[a]n individual who, acting under actual or apparent authority, or color of law, of any foreign nation” who tortures someone “shall” be liable in a civil action.  It seems to be the clear intent of the act to permit suit against such individuals.  I note, in this vein, that the torture exception in FSIA only applies in a suit against a foreign state.  Should not this more specific and (I believe) later-in-time law control on this issue over the more general FSIA? 

    Of course, ATS based claims remain problematic under the FSIA and for many other reasons.

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