Samantar v. Yousef and the Mysteries of the Foreign Sovereign Immunities Act

The Foreign Sovereign Immunities Act of 1976 is perhaps the most important example of the U.S. Congress exercising its power to implement and interpret international law principles as part of domestic law.  It is a basic and foundational statute implicating almost all kinds of international litigation in the U.S.  And it is a statute which the Supreme Court (and lower courts) can’t get enough of.  Today, the U.S. Supreme Court heard oral arguments in Samantar v. Yousef, at least the third FSIA case the Court has taken in the past 7 years. The issue this time is whether a foreign government official is entitled to immunity under the FSIA for official acts.   I haven’t paid as much attention to this as I should have, but I plan to blog about it more later this week (here is Michael Granne’s original analysis from October). In the meantime, it is worth looking at the transcript of oral argument, SCOTUSBlog’s report on oral argument today as well as dueling podcasts from the counsel in the case.

There seem to be at least three possible results here.  Foreign government officials get immunity for official acts because they are “the state” or an “agency or instrumentality” of a state under the FSIA. The Court seemed skeptical of this (in that no justice seemed happy with it) Or such officials don’t, and the FSIA only protects government entities. No justice seemed to embrace this theory either, and Justice Breyer seemed skeptical.   Or they don’t, but they might be entitled to some common law immunity (this appears to be the U.S. Government’s view).  I don’t know how the Court would react to this approach, although it is always safe to bet against the Court deferring to the Executive, even this executive and even on matters related to foreign affairs.  The upshot: The Court seems unconvinced by all sides and may come up with its own result, thus confusing matters more.