What do the Governments of Saudi Arabia and Sri Lanka and former Attorneys General William Barr, Ed Meese, and Dick Thornburgh have in common?
Answer: They all believe that the Supreme Court should grant the petition for certiorari of former Somali Defense Minister Mohamed Ali Samantar, after the Fourth Circuit held that foreign government officials do not enjoy immunity for acts that are alleged to be jus cogens violations, even if those acts were carried out in an official capacity.
The former Attorneys Generals – represented by former Office of Legal Counsel attorney Michael Edney — argue that the Fourth Circuit ruling may be used as precedent to allow U.S. officials to be sued in foreign courts. For this same reason, when the Fourth Circuit decision was issued, I noted in this post that the ruling would likely be very troubling to DoD and intelligence community lawyers who represent departments that engage in acts viewed by some other countries as human rights violations (e.g. drone strikes).
The Governments of Saudi Arabia and Sri Lanka – both of which have had government officials sued under the Alien Tort Statute or Torture Victim Protection Act — argue that the Fourth Circuit’s decision would undermine sovereign immunity by encouraging more litigation against foreign government officials in the United States. The Governments urge that the Court should “grant certiorari, reverse the court of appeals’ decision, and hold that the immunity of foreign officials sued for official-capacity acts is absolute and not subject to any exception.”
The plaintiffs had waived their right to respond to the petition, but the Supreme Court has now ordered a response by May 3.
It would seem likely that the Court will also ask for the views of the Solicitor General. As in the Kiobel case (a decision in which may be issued as early as tomorrow morning), this could put the Administration in a difficult position. On the one hand, the U.S. Government is not likely to want to file in support of Mr. Samantar, who has accepted liability for human rights abuses in Somalia, and human rights groups will urge the Administration not to do so. On the other hand, the U.S. Government is unlikely to want to allow foreign government officials (especially of close allies, like Israel) to enjoy no immunity in the Fourth Circuit for official acts alleged to be jus cogens violations (while enjoying immunity in other circuits); to allow the Fourth Circuit to ignore suggestions of immunity by the U.S. Government (which the Government considers to be binding on the courts); and to encourage the erosion of official acts immunity for U.S. officials around the world by allowing exceptions to immunity to stand. Moreover, as I have noted previously, the Government of Somalia, which the Obama Administration has recently recognized, has now requested immunity for Mr. Samantar, and it will be difficult for the Administration to ignore this request.