On June 1, the Supreme Court decided Samantar v. Yousef, No. 08-1555, holding that the Foreign Sovereign Immunities Act (FSIA), which precludes most suits in U.S. courts against a "foreign state" or a "subdivision, . . . agency, or instrumentality" of such a state, does not prevent a suit for damages against a former Somali government official who allegedly authorized persecution of the plaintiffs by Somali military forces during the 1980s.
Petitioner Samantar was the first vice president, defense minister, and prime minister of Somalia at various times during the 1980s. Respondents, natives of Somalia, sued Samantar individually in federal court for damages, alleging that he commanded and controlled the Somali military personnel who committed acts of torture or extrajudicial killing against them or members of their families in Somalia. The district court dismissed the suit, holding that the FSIA provided immunity for foreign government officials such as Samantar. The Fourth Circuit Court of Appeals reversed and reinstated the suit, holding that the FSIA does not apply to individuals.
The Supreme Court affirmed, holding that "foreign state" as used in the FSIA does not include an official acting on behalf of that state. In particular, an "agency or instrumentality" of a state that is entitled to immunity is defined as an "entity" having particular characteristics; "entity" implies an organization, and the other statutory characteristics either plainly exclude, or at least do not comfortably apply to, individuals. Other sections of the Act refer to officials separately, providing that a "state" is not immune for certain acts of its officials or employees—which would be unnecessary if such officials were included in the meaning of "state." The common-law doctrine of official immunity is separate and distinct from the doctrine of state immunity that the FSIA codifies, and nothing in the statue suggests that it was intended to codify the former doctrine as well.
The Court declined to consider whether Samantar might be protected by common-law immunity doctrines or whether other defenses that he had asserted to the claims against him were valid.
Justice Stevens delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Alito, and Sotomayor joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Scalia filed an opinion concurring in the judgment.