The Supreme Court and Foreign Sovereign Immunity

Today, the United States Supreme Court released its decision in Samantar v. Yousef, a case involving whether a top official of Somalia was entitled to assert sovereign immunity for torture and abuse conducted by the government of Somalia on its citizens in the 1980s.  The Court held that the Foreign Sovereign Immunities Act does not govern whether former foreign officials living in the United States can claim immunity from lawsuits in U.S. Courts because the text of the Act, and its legislative history, led to the conclusion that the law was not meant to protect individuals.  Rather, the Act was limited to states and their agencies or instrumentalities, which, in the Court’s view, did not include natural persons.

While this decision might be read to open United States courts for suits against foreign officials, the Court noted that such officials my enjoy immunity under the common law or “other valid defenses” to be examined by the district court on remand.  Such cases will now provide opportunities for the United States government to offer their views on immunity, as did the United States government before the adoption of the Act.  As such, the Obama Administration, and future administrations, will be more concretely involved in determining the metes and bounds of official immunity in United States courts.