March 8, 2010 — Law students in the University of Virginia's International Human Rights Clinic have contributed to a Supreme Court amicus brief submitted by several congressional leaders that supports the right to sue former government officials for acts of torture.
"The clinic is integrally involved in important cases that are going all the way to the Supreme Court," clinic director Deena Hurwitz said. "We've been involved in this case since it was first appealed to the Fourth Circuit."
Hurwitz and Alexa Taylor, a second-year law student who worked on the case, traveled to the Supreme Court on Wednesday to hear oral arguments in the case, Yousef v. Samantar, the first lawsuit to address atrocities in Somalia under the Said Barre regime. The clinic consulted on the Supreme Court brief authored by Sen. Arlen Specter and joined by Sen. Russell Feingold and Rep. Sheila Jackson Lee.
The clinic first became involved in the case at the federal appellate level, when the students and Hurwitz drafted an amicus brief on behalf of the plaintiffs for the Fourth U.S. Circuit Court of Appeals, which was signed by Jackson Lee and international law professors.
The plaintiffs, including torture victims and relatives of victims, sued former Somali Minister of Defense and Prime Minister Mohamed Ali Samantar under the Torture Victim Protection Act of 1991. The act allows plaintiffs to file civil suits in the United States against those who, acting in an official capacity for any foreign nation, were responsible for torture or extrajudicial killing.
The plaintiffs argued that Samantar, now living in Fairfax, was responsible for the human rights abuses perpetrated by his subordinates during the Barre Regime in the 1980s.
"The clinic wrote the Fourth Circuit amicus brief on congressional intent – what Congress intended when they drafted the Torture Victim Protection Act," Hurwitz said. "The Fourth Circuit upheld the plaintiffs' claim that Samantar was not entitled to statutory immunity."
Samantar argued that he was immune under the Foreign Sovereign Immunities Act, and appealed his case to the Supreme Court.
"This is a defense that has been raised pretty consistently," Hurwitz said. "It's unclear what happens when a person leaves office. Are they protected for any act that they took while they were in office? Torture is categorically illegal, so it's one of those conundrums – if it's an illegal act, how can it be condoned as an official act? It's really been an issue that's been begging for legal clarity."
The courts have disagreed on the answer.
"There was a circuit split on this issue as to whether the Foreign Sovereign Immunities Act meant that individuals who had been in government at the time of committing torture or at the time of suit are therefore immune from prosecution," said Taylor, who worked on revising a version of the brief for the Supreme Court, along with third-year law student Joelle Perry and second-year law student John White.
Taylor said Samantar could argue that he was subject to common law immunities or immunities codified by the Foreign Sovereign Immunities Act, but his case was based on the latter.
Through their research, the students concluded that the Torture Victim Protection Act was not designed to conflict with the Foreign Sovereign Immunities Act. The brief argues that to extend FSIA immunity to foreign government officials responsible for torture would effectively ify the TVPA.
"The correct interpretation of the text itself, based on both the structure of the text and the legislative history, is that sovereign immunity applies to states and their agents and instrumentalities, but is not meant to reach individuals. So individuals can still be held liable under the Torture Victim Protection Act," Taylor said.
Taylor's first trip to see the Supreme Court allowed her to see her own research in action.
"Clinical education is such a wonderful thing – being able to go and see the tangible outcome of how the issues we researched are actually argued, how court proceedings actually work, how you enter in arguments and prepare briefs for cases is so valuable," Taylor said. "I'm really excited to watch the argument and see how this background information we spent so much time accumulating is used in practice."