Bradley and Goldsmith on Government Officials and the FSIA
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.