Square Pegs and Round Holes: Individuals and the FSIA

As Opinio Juris readers know, the U.S. Supreme Court heard arguments on Wednesday in the case of Samantar v. Yousuf (briefs and transcript available here), which asks the Court to interpret the 1976 Foreign Sovereign Immunities Act. Commentators, including OJ’s own Julian Ku, have reported that the Justices seemed “unconvinced by all sides” (Julian’s words) and that none of the lawyers “seemed to make a convincing case” (according to Lyle Denniston over at ScotusBlog). The Justices did not seem unconvinced about what the FSIA actually says. But they seemed to wish that it provided more guidance on a subject about which it is silent, namely, the various immunities that may be available to former foreign officials such as Samantar. The question now is whether they will interpret the FSIA as it is (leaving the question of individual immunities to be worked out by the lower courts in the first instance), or whether they will instead interpret the statute as they would like it to be.

When Congress passed the FSIA in 1976, it had a particular problem in front of it: the diplomatic pressures that were being brought to bear on the Executive Branch by foreign states who wanted the U.S. State Department to conclude that a given action was based upon a commercial activity, and that the foreign state or state entity was therefore immune from suit under the terms of the 1952 Tate Letter. But this suit for torture and extrajudicial killing was brought against Samantar, a former Somali official who now lives in Virginia, not against Somalia itself. As Justice Kennedy interjected after Samantar’s lawyer Shay Dvoretzky had barely introduced himself, “I’m having difficulty seeing how the issues as presented in the brief really resolve very much.” That is because, with respect to suits against individuals, the FSIA doesn’t resolve very much.

Does that mean that plaintiffs can simply circumvent state immunity by naming individuals as defendants? No. In certain cases, suits against individuals may well be the functional equivalent of suits against the state, in which case, as Justice Ginsburg emphasized, “[w]hether it’s injunctive relief or money relief, if the relief is against the state, obviously, you can’t dodge it by naming the officer.” But (again in Justice Ginsburg’s words) “this is a case seeking money out of the pocket of Samantar and no money from the treasury of Somalia.” Even though states necessarily act through individuals, individuals can be held accountable for their acts without violating the immunity of states for those same acts. (If a concern arises that adjudicating a particular claim would require invalidating the act of a foreign sovereign taken within its own territory, that can be resolved under the Act of State doctrine, as Justice Ginsburg and Justice Breyer emphasized at oral argument.) It would be bizarre to suggest that a U.S. court couldn’t impose consequences on an individual such as Charles “Chuckie” Taylor Jr. by sentencing him to prison for torture committed in Liberia just because Liberia itself would enjoy immunity for torture under the FSIA. The same is true of consequences in the form of civil remedies.

If one thing seems clear from Wednesday’s argument, it’s that the Court will not endorse the approach to the FSIA in Chuidian v. Philippine National Bank (9th Cir. 1990), in which the Ninth Circuit held that an individual foreign official acting within the scope of his authority should be considered an “agency or instrumentality” of a foreign state under § 1603(b) of the FSIA. Even Samantar only argued this interpretation in the alternative. As Justice Stevens remarked to Mr. Dvoretzky at the very end of the hour, “Nobody has talked about that section during the entire argu[ment].” Adam Liptak in The New York Times can be forgiven for thinking, mistakenly, that “Most of the argument concerned whether th[e] phrase [“agencies or instrumentalities”] included current or former officials,” because that is the provision relied upon by the Chuidian approach. But as Chief Justice Roberts noted, the statute “says that an agency or instrumentality is an entity [and] we usually don’t think of individuals as being entities.”

Perhaps recognizing this, Samantar relied primarily on a different theory, not yet adopted by any court but advanced by Curt Bradley and Jack Goldsmith in a recent Green Bag article on the FSIA: namely, that a suit against a state officer for his or her official acts should be treated as a suit against the state itself. How do we know when an act counts as an “official act” for FSIA purposes? According to Mr. Dvoretzky, “the foreign state would tell you and that would be dispositive of the matter.”

Even if one were to accept the idea that a foreign state should have veto power over the exercise of jurisdiction by a U.S. court over an individual within U.S. territory, the “foreign state would tell you” approach is problematic because it has no basis in the text of the FSIA. The amicus curiae brief submitted by Professors of International Litigation and Foreign Relations Law highlights this and other problems created by embarking on this non-textual path. To name but a few, it creates a conflict with the Torture Victim Protection Act (TVPA), potentially immunizes foreign officials from criminal prosecution (because the FSIA, unlike some other countries’ state immunity statutes, does not exempt criminal proceedings), abolishes head-of-state immunity (because applying the FSIA to individuals would override existing customary immunities, such as that for sitting heads of state), and, as indicated above, it would “require the courts to develop a non-textual definition of what constitute official acts.”

The Justices did not seem enthusiastic about the prospect of having individual immunity determinations governed purely by Executive discretion, which seems to be what the United States advocates in its amicus curiae brief in support of Respondents. Adding to the Justices’ consternation, Deputy Solicitor General Edwin Kneedler refused to answer the question whether the Executive would recommend immunity for Samantar here (although he probably could not have done otherwise without exceeding his mandate). This prevarication seemed especially frustrating because the Executive did not provide a view on Samantar’s immunity to the district court, despite having been invited to do so. Justice Sotomayor wondered what would keep the courts from “com[ing] to a grinding halt?” And Justice Breyer wanted to know what “principle” would divide cases that could proceed from those that couldn’t. The Solicitor General’s brief invokes “common law principles of immunity articulated by the Executive Branch [and] informed by customary international law.” It would certainly be preferable for courts to apply a set of guiding principles, rather than waiting indefinitely for a response from the Executive.

Such guiding principles can be and have been found in customary international law incorporated as federal common law and/or in relevant treaties, as discussed in the amicus curiae brief of Professors of Public International Law and Comparative Law, which I authored. Some of these are quite straightforward, such as the customary immunity from proceedings in any foreign national court afforded to sitting heads of state, which may also encompass (according to the International Court of Justice’s Arrest Warrant decision) sitting foreign ministers. Widely ratified international treaties provide status-based immunities for current diplomats, as well as conduct-based immunities for former diplomats and for current and former consular officials. And there is a body of case law – albeit one that is often misinterpreted by what appears to be a failure to go back and read the actual cases – that talks about when a suit against an individual defendant is actually a suit against a foreign state (for example, when it involves determining a foreign state’s entitlement to funds in an overseas bank account) and when it isn’t (for example, when relief is sought only from the individual defendant, even if the acts that form the basis of the suit were allegedly performed on behalf of a state).

These guiding principles are not currently before the Court, and lower courts will have to identify their precise contours with the benefit of briefing and argument, as they would presumably do now in the Seventh Circuit (which rejected the Chuidian approach in 2005), and as courts that follow the Chuidian approach would have to do if the Ninth Circuit had interpreted the FSIA the way the Executive has consistently said it should be interpreted—to apply to states and “entities,” not to individuals. As Yousuf’s lawyer Patricia Millett acknowledged, “much is to be debated on remand.” The same is true of many Supreme Court cases, and it should not be particularly troubling here.

So, what is the Court likely to do? It seems that the result will turn on whether a majority of the Justices accepts that Congress was addressing a significant but narrow problem in 1976, and simply did not address the immunities of current or former officials in this particular statute (leaving that to the common law and, potentially, to future legislation), or whether a majority feels compelled in this decision to rule definitively on the precise contours of individual immunities without any statutory guidance. As Justice Scalia observed about the FSIA’s apparent omission of any reference to individual officials, “I mean, I guess – I guess you could write it that way, but I don’t know why anybody would want to write it that way.” If the Justices cannot accept this perceived imperfection, they might be tempted to rewrite the FSIA. Given the various specialized immunities that apply to individuals as a matter of custom and treaty and do not fit within the text of the FSIA, this would be a mistake.