Are Torturers Above the Law? Or Can They Be Sued?

By Brendon Fleming

[Cross-posted from Our Rights, Our Future, the blog of the National Campaign to Restore Civil Rights]

Nearly 20 years ago, Ali Samantar left his native Somalia, then a country tumbling deeper and deeper into chaos. After years as a general in the Somali army, as defense minister, and finally as prime minister, Samantar fled Somalia and eventually settled in Virginia. His past, however, eventually found him in the United States.

In 2004, a group of Somalis sued Samantar in federal court in Virginia, alleging that Somali agents under Samantar’s control had tortured them and committed other human rights abuses against them in the 1980s and early 1990s, before Samantar fled the country. Those suing wanted to see Samantar held responsible for the torture and abuses, asking he pay them monetary damages.

After five years winding its way through the federal courts, the U.S. Supreme Court will now hear the case. At the core of Samantar v. Yousuf, is the issue whether or not Samantar is immune, as a former official of a foreign government, from being sued in the United States for alleged human rights abuses that occurred on his watch in Somalia in the 1980s. The suit claims Samantar and those in his command were responsible for killings, rapes, and torture—including waterboarding.

The plaintiffs, five Somali survivors of torture, sued Samantar under the Alien Tort Statute and the Torture Victim Protection Act. The Alien Tort Statute (ATS), a federal law that has been on the books since 1789, allows non-citizens to sue their abusers in federal court for human rights abuses that violate international law. The Torture Victim Protection Act of 1991 (TVPA) allows victims of torture carried out by agents of a non-U.S. government to sue their torturers for monetary damages in federal court. The ATS and the TVPA are doors into U.S. courts for victims of torture and human rights abuses suffered abroad, at the hands of despots and tyrants. The laws allow a day in court for victims who might otherwise never have one in the United States, in their home countries, or anywhere else.

But the Supreme Court could close those doors, at least to some plaintiffs, with this case, depending on its reading of the Foreign Sovereign Immunities Act (FSIA). The FSIA is a law that governs when and how foreign countries may be sued in American courts. FSIA makes foreign countries immune from certain lawsuits. In this case, the Court will decide whether the ATS or TVPA allow lawsuits against foreign officials—individuals with state power, rather than merely a state itself—for alleged human rights abuses committed in their official capacity. Put another way, the Court will decide whether FSIA immunity extends to individuals acting as officials for foreign governments, including former officials, or whether it only immunizes foreign states themselves and their government agencies.

The Supreme Court must decide which is right: allowing the case against Samantar to proceed under the ATS and TVPA, thereby giving the victims of alleged torture their day in court, or using a federal law that was designed to facilitate diplomacy by protecting foreign governments instead to protect an alleged torturer and perpetrator of vast human rights abuses.

The ATS and the TVPA are important because they are an acknowledgment by the United States of the existence and enforceability of international human rights law. They recognize that some abuses are so flagrant that they violate the norms and rules accepted by the international community as the law of nations—international law. Allowing a suit such as this one, against Samantar, would be a significant step forward for the international rule of law—a resounding statement that individuals who torture for their governments or take official action that violates international human rights norms cannot hide behind their government’s immunity.

If the Supreme Court allows the case to proceed, a lower federal court could then determine that Samantar is liable for the alleged abuses, an outcome that the plaintiffs and many Somalis would no doubt applaud. But a court could instead, based on testimony and evidence, find him not liable, which would likely disappoint many who already believe Samantar is responsible for the abuses. As important as the outcome of the case is, it is equally important to allow the court to hear the case through to completion, without cloaking it with official immunity and stopping it in its tracks.

Somalia has been without a stable functioning government since 1991, when its government collapsed and Samantar fled. Regardless, U.S. courts can and should still provide a day in court for these Somali survivors.

(Photo by Javier Kohen.)

Permalink from Our Rights, Our Future.

Remembering Sen. Ted Kennedy: Big Sign that friendship and political civility help us all

ROCHESTER, N.Y., Aug. 29 — As the dignitaries, friends, and Kennedy family members gathered today in Boston for the funeral mass of Sen. Ted Kennedy, the liberal lion of the U.S. Senate who died this week, CNN video from Our Lady of Perpetual Help Basilica, prior to the service, reminded the world of what may have been Sen. Kennedy’s greatest quality, not only as a legislator, but as a man: he was a friend.

The scene, as shown through CNN’s camera lenses:

In an empty pew almost an hour before the service, Senate rivals Sen. Chris Dodd, the Democrat from Connecticut, and Sen. John McCain, the Republican from Arizona, deep in discussion, smiles and camaraderie broadcast to the world.

As the service draws nearer, Vice President Joe Biden turns around in his seat, chatting to a smiling former President George W. Bush. Moments later, Secretary of State Hillary Clinton and former President Bill Clinton sit down beside Bush and his wife, former First Lady Laura Bush. The shot cuts away to the arrival of President Barack Obama and First Lady Michelle Obama, and then back to Hillary and W., turned toward one another, all smiles, chatting away.

The leaders gathered in Boston are, of course, some of the most partisan players in modern American democracy, and Sen. Kennedy long held a place at the same table. The politics of healthcare reform have seized the summer, and they will seek out September, but today, the politicos and partisans pause, remembering and sharing the friendship and civility that Sen. Kennedy brought to the issues, along with his passion.

Coverage throughout the week has noted repeatedly how Sen. Kennedy touched so many lives through his legislation and through his willingness to reach out — to his Senate colleagues across the aisle, to his constituents and average Americans, and even to his enemies.

He was a masterful legislator and politician in large part because he liked and respected his colleagues, regardless of whether they shared his ideology and convictions. Consequently, his fellow senators, the rest of the Washington elite, and many (if not most) Americans liked and respected him, even when they disagreed with him.

Such humanity is sadly too often missing now from the Senate and our harsh, hard-edged politics. But today in Boston, friendship, or at least civility, and a great love for Teddy, rules the day, and I pray that it continues upon the political scene’s return to Washington.

As we go forward, let Teddy’s memory guide our leaders toward legislation to complete what he called the cause of his life, healthcare for all, and other critical legislation, using his lessons of friendship and civility, not as a crutch, but as an inspiration for and engine to drive reform and recognize our collective humanity.

We miss you, Teddy. May you rest in peace.

Big Sign that Libya doesn’t understand compassion or suffering, or that it understands and doesn’t care: An inappropriate hero’s welcome

ROCHESTER, N.Y., Aug. 22 — After I got the news of Abdelbaset Ali Mohmed Al Megrahi’s release on compassionate grounds, I tried to accept it for what it was, or purported to be—a showing of compassion—whether I agreed with it or not.

I was and am conflicted by the release, as I noted Thursday. Compassion to end the suffering of one man and his family, yes. But such compassion at the expense of increasing the suffering of the relatives of his hundreds of victims?

Hoping for the best—for lightness from the dark, I saw the move initially and optimistically as a way forward from tragedy; a Scottish acknowledgement that while Al Megrahi is a horrific, convicted murderer, he is nonetheless human, ostensibly with a family who have not themselves been convicted of such atrocities, and who want to say goodbye in person and at home before he dies. An acknowledgment that while Al Megrahi ripped precious lives from the earth and brought unspeakable grief to countless friends and relatives, Scotland would not continue the cycle of suffering.

While I hoped for the best, a text message from my longtime friend in Lockerbie brought back the harsh reality of the criminal case—one for which Libya refused for years to extradite Al Megrahi. He has always maintained his innocence, and Libya, while paying billions of dollars to the victims’ families, has denied culpability for the bombing of Pan Am flight 103.

The text message shook me from a hopeful fog of peacebuilding and reconciliation: “I fear he will get a hero’s welcome in Tripoli,” my Scottish friend wrote.

A punch to the gut. “Would they dare?” I naively asked myself.

Sadly, they did, despite British and U.S. efforts to discourage a hero’s welcome.

I was sick when I saw the crowds gathered, flags waving at the airport, greeting the bomber as he exited Libyan dictator Muammar al-Gaddafi’s plane, in a neatly tailored suit—quite a contrast from his covered face and track suit as he boarded hours earlier.

Libya, Gaddafi, and the bomber clearly missed the boat on the compassionate release. It was inevitable that compassion to decrease suffering of one terrorist and his family would increase the suffering of his victims, dredging up grief and anger that never disappeared but that has perhaps not been so strong for many years as it is this week.

Libya could have tempered that suffering by making the homecoming a quiet one, not a hero’s welcome, and Scottish Justice Secretary Kenny MacAskill could have, as a condition of the release, ostensibly demanded that Libya prevent a hero’s welcome. (Enforcing such a condition would, of course, have been another challenge in itself.)

The hero’s welcome, and the U.S. & UK failures to prevent it, taints the Scottish act of compassion (which surely would have angered some regardless of the bomber’s reception, and which still troubles me).

The hero’s welcome reminds me that an act of humanity and healing is not necessarily sufficient to overcome a dictator’s arrogance and a terrorist’s inhumanity, as much as we might wish it is. Someday, I hope it will be enough, but this week, it was not.

Big Sign of Compassion: Scotland releases Pan Am 103 bomber to die in Libya

ROCHESTER, N.Y., Aug. 20 — The text messages trickled in as I began my day here, more than 3,000 miles from Lockerbie, Scotland, where Pan Am flight 103 came to rest after blowing up in the skies above on Dec. 21, 1988, killing all 259 people aboard and 11 Lockerbie residents on the ground.

“Scotland’s Justice Secretary orders release of Lockerbie bomber on compassionate grounds,” the message, from a friend in Lockerbie, began.

I read the message a second time, and then a third time, along with the other messages that accompanied it—it’s hard to convey such big news in the 160 characters of a text message.

Eight months ago, I was on the ground in Lockerbie, walking the neighborhoods and fields where pieces of the jumbo jet, the Maid of the Seas, had rained down like fire from the sky 20 years before. I stood solemnly with friends in Dryfesdale Cemetery and the Garden of Remembrance as we remembered the lives lost 20 years before.

I didn’t know anyone aboard the Maid of the Seas or in Lockerbie at the time of the crash. I didn’t know anyone from Lockerbie until I started college at Syracuse University and met a student who was at Syracuse for a year as a Lockerbie-Syracuse Scholar, one of many connections forged between the small Scottish town and the large Central New York university, which lost 35 students aboard flight 103.

Today, as Scotland released convicted bomber Abdelbaset Ali Mohmed Al Megrahi and returned him to Libya, the connection between Lockerbie and Syracuse pulses stronger, the connection among all those touched by this terrorist act and other violence and terrorism grows deeper.

I am quite conflicted about the bomber’s release. The man is dying of prostate cancer, and Scottish Justice Secretary Kenny MacAskill showed remarkable mercy in granting Al Megrahi’s release — mercy that many would not, could not show if facing a similar decision. I don’t know what I would have done had I been in MacAskill’s shoes, but now that it’s done, it is what it is, and I hope it will end in a convicted killer’s quiet reflection with his family before he dies himself and not in raucous celebration in the heart of Libya.

"Our justice system demands that judgment be imposed but compassion available," MacAskill said, according to CNN’s report. Al Megrahi  met the criteria for compassionate release, with only three months to live, and MacAskill, In granting mercy, seems to have followed the rule of law. "Our beliefs dictate that justice be served but mercy be shown."

Mercy to our enemies, to those who have ripped life from the world, taken friends and loved ones before their time, is, some might say, the most challenging kind of compassion to show.

This mercy—Al Megrahi’s release—nonetheless may undermine justice; he was sentenced to life, which under Scottish law meant he was to serve at least 27 years in prison, running from his April 1999 extradition from Libya. See Kirsty Scott, Lockerbie Bomber to Appeal, THE GUARDIAN, June 1, 2004.

Some victims’ families are outraged at the Scottish government’s showing of compassion after Al Megrahi showed none himself for those he killed in planting the flight 103 bomb.

Other victims’ families have suggested the wrong man was convicted and Al Megrahi’s imprisonment was a miscarriage of justice.

Through the years and senseless acts of terrorism, including Pan Am 103, countless families have been deprived the love and lives of their loved ones, and of the chance to say goodbye.

Today, the Scottish government released the bomber not because he is innocent—he is not; the conviction stands, and he dropped his appeal as part of the deal that set him free.

The Scottish government set Al Megrahi free not to right a wrong, but perhaps to prevent another family from having the opportunity to say goodbye to a loved one—regardless of the heinous acts that person committed.

U.S. President Barack Obama said the release was not “appropriate” and that the United States has contacted the Libyan government with the hope that Al Megrahi be placed under house arrest upon his return to Libya.

The mother of one victim described the release to CNN as “misplaced compassion.” Misplaced or not, the release was a remarkable act of compassion, shown toward the individual convicted of the deadliest act of terrorism in UK history.

And that compassion, difficult as it is to accept, let alone understand, is a powerful act of humanity and empathy. The word compassion, its etymology revealed by Google, comes from the Latin “to suffer” or “to suffer with.” See, e.g., Empathy and Compassion, ENCYCLOPEDIA OF DEATH AND DYING. In this release, the Scottish government recognized the suffering of a dying man and his family, and sought to lessen it incrementally, even if that meant redistributing suffering around the world, among his victims’ friends and families. Right or not, it was an act of compassion.

 “Mr. al Megrahi now faces a sentence imposed by a higher power,” MacAskill said, CNN reported. “It is one that no court, in any jurisdiction, in any land, could revoke or overrule. It is terminal, final and irrevocable. He is going to die."

I hope that Al Megrahi will now go home to a quiet reunion with his family before he dies, not a hero’s welcome in the streets of Tripoli, for that would slap compassion in the face.

And I hope that this compassion, justified or not, will foster more compassion and empathy, so that people and governments the world over may better understand one another and value life, despite our vast diversity and differences, and that we may be spared future tragedies of terrorism like the bombing of Pan Am flight 103.

Big Sign that We're Back from the Bar. No, not that bar.

ROCHESTER, N.Y., Aug. 7 — First post since the inauguration is a big sign that we're back. After a serious hiatus from the blog, on account of the last semester of law school and studying for and taking the bar exam, we're back. Let's rock.

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Live Blogging the Mall

WASHINGTON, Jan. 20 — The view from the jumbo-tron; not much but cool to be there.

Members of the House arriving now.

Live Blogging the Mall

WASHINGTON, Jan. 20 -- Our vantage point on the Mall, with the masses.

Twittering the Inauguration

WASHINGTON, Jan. 19 — We didn't end up with tickets to the cool kids section for the inauguration tomorrow, but we'll be there with the rest of the throng. Follow us here and on Twitter at http://twitter.com/bigsigns.