Samantar v. Yousef: The Foreign Sovereign Immunities Act (FSIA) and Foreign Officials
Released: 2013-12-16T00:00:00

Introduction

On June 1, 2010, the U.S. Supreme Court decided unanimously in Samantar v. Yousef that the Foreign Sovereign Immunities Act (FSIA), which governs the immunity of foreign states in U.S. courts, does not apply in suits against foreign officials. Samanta r's particular facts involved the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA), but the ruling applies to all causes of action against foreign officials. The holding clarifies that no foreign government officials, neither present nor former, are entitled to invoke the FSIA as a defense, unless the foreign state is the real party in interest in the case. Whether the FSIA applies to a lawsuit naming a foreign official as defendant depends largely on whether the remedy is sought from the official personally or whether the foreign government will be responsible for paying damages or providing whatever other remedy a court may order in the event the plaintiff prevails, as would be the case if an official is sued in an official capacity. The decision rejected the interpretation of the majority of U.S. federal judicial circuits, in which foreign officials were regarded as covered by the FSIA for lawsuits based on official actions taken within the scope of their authority.

The Court stressed that the inquiry does not end with the FSIA in such cases. The ruling leaves open the possibility that foreign officials have recourse to other sources of immunity or other defenses to jurisdiction or the merits of a lawsuit. Officials may assert immunity under the common law (unwritten law that has been developed by courts), for example, perhaps aided by State Department suggestions of immunity. This report provides an overview of the FSIA, followed by a consideration of the FSIA's possible application in the wake of the Supreme Court's ruling and the remaining options for foreign officials who seek immunity from lawsuits, as well as some of the questions that may emerge from each option. The report also addresses relevant legislation.

The Foreign Sovereign Immunities Act

Customary international law historically afforded sovereign states complete and absolute immunity from suit in the courts of other states. This principle was rooted in the perfect equality and absolute independence of sovereigns, as well as the need to maintain friendly relations. While each nation has full and absolute jurisdiction within its own territory, allowing it to exercise jurisdiction over all parties there, states ordinarily choose not do so with respect to other sovereign states due to considerations of comity. As Justice Marshall stated,

Perfect equality and absolute independence of sovereigns, and ... common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.

During the last century, however, absolute sovereign immunity gradually gave way to a more limited application after a number of states began engaging directly in commercial activities. To allow foreign states to maintain their immunity in the courts of other states for ordinary commercial transactions was said to give them an unfair advantage in competition with private commercial enterprises. It also arguably denied private parties in other nations normal recourse to courts to settle disputes. As a consequence, numerous states immediately before and after World War II adopted the "restrictive principle" of state immunity. This principle preserves sovereign immunity for most cases, but allows domestic courts to exercise jurisdiction over suits against foreign states for claims arising out of their commercial activities.

When the United States adopted the restrictive principle of sovereign immunity by administrative action in 1952, the State Department began advising courts on a case-by-case basis whether a foreign sovereign should be entitled to immunity based upon the nature of the claim and foreign policy considerations. In 1978, Congress codified the restrictive principle in the FSIA, so that the decision no longer depended on a determination by the State Department. The FSIA states the general principle that a foreign state is immune from the jurisdiction of the courts of the United States, but sets forth several limited exceptions. The primary exceptions are

1. waiver ("the foreign state has waived its immunity either expressly or by implication"), 2. commercial activity ("the action is based upon a commercial activity carried on in the United States by the foreign state"), and 3. torts committed by a foreign official within the United States (the "suit is brought against a foreign State for personal injury or death, or damage to property occurring in the United States as a result of the tortious act of an official or employee of that State acting within the scope of his office or employment").

Circuit Split on Foreign Official Immunity

Following the enactment of the FSIA, the question emerged as to whether the FSIA immunizes foreign officials as well as foreign states from suit. The FSIA defines a "foreign state" to include "a political subdivision of a foreign state or an agency or instrumentality of a foreign state."

It defines "agency or instrumentality of a foreign state" to mean any entity

(1) which is a separate legal person, corporate or otherwise, and

(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and

(3) which is neither a citizen of a State of the United States as defined in [28 U.S.C. Section 1332(c) and (e)] nor created under the laws of any third country.

The absence of any reference to foreign officials in the definitions of "foreign state" or "agency or instrumentality" led to a split among the U.S. appellate circuit courts. The majority view interpreted "foreign state" to include an official as an "agency or instrumentality of a foreign state" when acting within his or her official capacity. This logic was based upon the idea that (1) the state cannot function but through individuals; (2) the suits in question were really actions against the foreign government itself; and (3) the FSIA codified the existing common law in place at the time of passage. The common law of foreign sovereign immunity, according to these courts, embraced immunity for foreign officials for their official acts, at least when the suit would have the effect of enforcing an action against the state itself.

In Chuidian v. Philippine Nat'l Bank , the Ninth Circuit held that a suit against a bank and bank official, in which the official instructed the bank to dishonor a letter of credit issued to the plaintiff, could not proceed under the FSIA. The court held that the official qualified as an "agency or instrumentality" because a majority interest in the bank was owned by the Philippine government and the official was acting in his official capacity on behalf of the bank. This interpretation was applied in the human rights context in Belhas v. Ya'Alon , in which the D.C. Circuit held that the FSIA prohibited a suit against a former Israeli head of Army Intelligence for authorizing a military assault against Lebanon that resulted in civilian injuries and death. The court accepted an official statement from the government of Israel as proof establishing that the defendant had been acting in his official capacity, which, in the court's view, made him an "agency and instrumentality" of Israel within the meaning of the FSIA, even though he was no longer a government official. The court also held that the TVPA, which provided the cause of action for the case, did not serve as a statutory exception to the FSIA by implication, although it only applies to acts carried out under color of foreign law. The court further rejected the contention that any act in violation of international human rights law necessarily exceeds an official's authority and voids immunity, as there is no exception enumerated in the FSIA for violations of international human rights law.

In In re Terrorist Attacks on September 11 , 2001 , the Second Circuit held that defendant Saudi princes could not be held liable for the consequences of providing material support to Al Qaeda through financial funding that allegedly enabled the 9/11 terrorist attacks because each prince, acting in his official capacity, qualified as an "agency or instrumentality" of the Saudi government. The court also ruled that the Saudi High Commission for Relief to Bosnia and Herzegovina, also accused of providing terrorist funding to Al Qaeda, was an "organ" of Saudi Arabia created for a national purpose and actively supervised by Saudi Arabia. Having determined that the FSIA governed immunity, the court turned to the exceptions to assess whether any would permit the suit to go forward, but found that none applied. The defendants' alleged provision of support to Muslim charities that promoted and underwrote terrorism did not constitute conduct in trade, traffic, or commerce to place it within the commercial activity exception. Moreover, the FSIA tort exception for death and personal injury did not apply to the matter, according to the court, because the terrorist act of providing material support to Al Qaeda occurred overseas, and it also sounded more in the FSIA's terrorism exception than the tort exception. Saudi Arabia did not fall within this terrorism exception because it had never been designated a state sponsor of terrorism.

Finally, the Second Circuit held in Matar v. Dichter that while a foreign official acting in his official capacity is an agency or instrumentality of a foreign state, a former official is not necessarily covered as such by the FSIA. The defendant in Matar , a former director of Israel's General Security Service, was nevertheless entitled to immunity under the common law because, according to the court, the FSIA did not abrogate through silence the common law of sovereign immunity as it applied to former foreign officials. Accordingly, the court followed the recommendation of the State Department and declined jurisdiction to hear claims against the former official arising from civilian injuries and deaths sustained during the Israeli Defense Force's aerial bombing of a Gaza apartment complex undertaken in a successful "targeted killing" operation against a suspected terrorist leader.

A minority of circuits, however, held that foreign officials did not enjoy immunity under the FSIA. The Seventh Circuit departed from the majority position in Enahoro v. Abubakar , holding that victims who alleged torture and killings by a military junta were permitted to sue its former general because the language of the FSIA does not explicitly include heads of state within its definition of "state" or in any of the exceptions to the FSIA. The court did not agree that the FSIA term "agency or instrumentality" was meant to encompass individual officials, highlighting the fact that the terms "separate legal person" and "organ" fit a natural person, such as a foreign official, quite awkwardly. After the Fourth Circuit joined the minority in Samantar v. Yousef , the Supreme Court agreed to hear the challenge.

Samantar v. Yousef

Case Background

Somalis living in the United States who were members of the Isaaq clan, a group of well-educated and prosperous Somalis, alleged they had been subjected to systematic persecution during the 1980s by the military regime then governing Somalia. They sued Mohamed Ali Samantar, former defense minister and prime minister of Somalia in the 1980s, claiming (1) Samantar exercised command and control over members of the Somali military forces who tortured, killed, or arbitrarily detained them or members of their families; (2) Samantar knew or should have known of the abuses perpetrated by his subordinates; and (3) Samantar aided and abetted the commission of these abuses. The expatriates sought damages from Samantar pursuant to the TVPA. Samantar fled Somalia in 1991 after the regime collapsed and took up residence in Virginia. The United States has not recognized a government in Somalia since the fall of the military regime despite the existence of a transitional government.

Samantar claimed immunity under the FSIA, arguing that the suit was based on actions he took in his official capacity and that a suit against him was the equivalent of a suit against Somalia. The district court agreed with Samantar, following the majority view that an official, even a former one, could assert immunity under the FSIA because he was acting in his official capacity on behalf of Somalia when he took the actions that were alleged to have caused the injuries. The court rejected the argument that Samantar had exceeded the scope of his authority because he allegedly violated international law. The Fourth Circuit reversed, following the minority view that individual officials do not fall within the immunity of the FSIA's "agency or instrumentality" language. Even if Samantar fell within the FSIA's "agency or instrumentality" language, according to the appellate court, the FSIA would only cover present officials due to the statute's present-tense language describing "agency or instrumentality." The case was returned to the district court to determine whether another sort of immunity might apply.

Supreme Court Decision

Samantar appealed the Fourth Circuit's decision to the Supreme Court, arguing the FSIA should be read to provide him with immunity on the basis that (1) the examples outlined under the definitions of "foreign state" and "agency or instrumentality" are non-exhaustive and merely illustrative; (2) the FSIA should be construed to codify the common law of official immunity; and (3) interpreting the FSIA otherwise undermines the comity and reciprocity the FSIA was meant to engender. The Somali plaintiffs conversely argued that (1) the plain language of the statute clearly does not cover officials; (2) the FSIA and international law exclude former officials from immunity; (3) the TVPA amounts to an exception to immunity and the FSIA must be read in pari materia with it; (4) torture and extra-judicial killing are not within the lawful scope of an official's authority; and (5) foreign policy decisions are for the judgment of the political branches.

The Supreme Court's unanimous decision in Samantar resolved the circuit split in favor of the minority position. In a detailed textual analysis largely tracking the government's brief , Justice Stevens found that while individual foreign officials could "literally" fit the definition of an "agency or instrumentality," the textual clues cut against such a broad construction. "Agency or instrumentality , " according to the Court, was defined by the FSIA to mean an entity, which ordinarily refers to "an organization, rather than an individual." Other parts of the "agency or instrumentality" definition , according to the Court, likewise d id not resolve themselves comfortably to the definition of a natural person, such as "separate legal person." The word "person" in that context , according to the Court, typically refers to the legal fiction that allows corporations to hold legal personality separate from shareholders. The Court likewise described the use of the term "organ" as "awkward" when used in connection with a natural person . From this textual analysis, the Court concluded that Congress simply did "not evidence the intent to include individual officials within the meaning of 'agency or instrumentality.'"

While Samantar argued that the definition of "agency or instrumentality" was an illustrative list of the types of entities that could encompass a foreign state , the Supreme Court d eclined to stretch the definition to also cover individuals, remarking that a word can "be known by the company it keeps." The Court pointed to other provisions of the FSIA where it would have made sense for the statute to mention foreign officials or provide procedures more appropriate for suits against individuals, had Congress intended for such officials to be included . The Court also noted that the FSIA does expressly mention foreign officials in other contexts, showing Congress' s ability to address such an issue if it chooses to do so and making the omission of officials in the definition of "agency or instrumentality" all the more significant. As a result, the Court concluded that reading "foreign official" into the definition of "agency or instrumentality" would make the express mention of "foreign officials" superfluous in the provisions of the FSIA where Congress expressly employed the term.

The Court also cited the history and purpose of the FSIA as evidence that Congress did not intend to encompass foreign officials within the definition of foreign state. The Court agreed with Samantar that the FSIA was meant to codify the restrictive theory of sovereign immunity along with the international and common law at the time of passage in 1978. The Court did not agree, however, that the FSIA must be interpreted as having also codified the common law as it applied to foreign officials. While agreeing that statutes are generally to be interpreted consistently with the common law, Justice Stevens explained that this canon of construction only applies when the statute clearly covers an entire field formerly governed by the common law. While the FSIA was clearly meant to replace the common law in relation to the immunity of foreign states, the Court found no indication it was intended to cover common law official immunity. The Court did not accept Samantar's interpretation that the common law of state immunity and official immunity were coextensive, finding the relationship between the two to be more complicated than that.

The Court suggested instead that the common law is still in place to determine whether Samantar is entitled to immunity, but left the question to be determined on remand. It noted one caveat to immunity for foreign officials that does not apply to other forms of immunity: officials must not only have acted in an official capacity, but the suit must also have "the effect of exercising jurisdiction ... to enforce a rule of law against the state." The Court also adopted the position of the government highlighting the importance of the State Department's pre-FSIA role in recommending official immunity, noting that Congress gave no indication that it "saw as a problem, or wanted to eliminate" that role. Such cases, however, appear to be few in number and some of them involved suits where the foreign state itself did not qualify for immunity or court jurisdiction would not implicate enforcing law against the state. Justice Stevens also left open the possibility that Samantar may be entitled to head of state immunity under the common law.

Samantar on Remand

On remand to the district court, the matter of immunity was resolved in conformity with the statement of interest (SOI) filed by the State Department, which opposed immunity for Samantar on the basis of the potential impact the grant of immunity would have on the foreign relations interests of the United States. Samantar appealed again to the Fourth Circuit, arguing that the district court should have engaged in a searching review of the matter rather than summarily accepting the State Department's determination. In his view, the State Department's views should be given utmost deference only when it recommends immunity, but not when opposing it. The State Department took the position that its determination was absolutely binding on the court regardless of whether it opposed or supported immunity.

The appellate court essentially followed the plaintiffs' interpretation, under which the State Department views were to be given deference regardless of the recommendation so long as the explanation was reasonable. The court reviewed the SOI, which explained that two factors drove the State Department's determination that Samantar should not enjoy immunity for his conduct. First, the State Department concluded that Samantar's claim for immunity was undermined by the fact that he is a former official of a state without a currently recognized government that could request immunity on his behalf or take a position as to whether his activities were conducted in an official capacity. Taking the view that the claim to sovereign immunity belongs to the sovereign rather than the official, the department saw no reason to recommend immunity. Second, the department viewed Samantar's status as a permanent legal resident of the United States as relevant to its immunity determination. According to the SOI, "U.S. residents like Samantar who enjoy the protections of U.S. law ordinarily should be subject to the jurisdiction of our courts, particularly when sued by U.S. residents or naturalized citizens such as two of the plaintiffs."

The court first considered whether Samantar should be entitled to head-of-state immunity, which it noted could apply to high-level officials as well as the head of state. The court explained that head-of-state immunity is a status-based immunity that depends on the recognition of the executive branch, and accordingly, the State Department is entitled to absolute deference on matters of status-based immunities. Head-of-state immunity, however, does not survive the tenure of that status. Samantar was not entitled to immunity based on his former status, and under the State Department SOI, likely would not have been entitled to status-based immunity even during his tenure in office.

The court next addressed conduct-based immunity which lower-level public officials as well as former high-level officials may be accorded for their official acts. The court explained that the State Department's views were to be taken into consideration for this type of immunity but did not bind its decision:

Unlike head-of-state immunity and other status-based immunities, there is no equivalent constitutional basis suggesting that the views of the Executive Branch control questions of foreign official immunity. Such cases do not involve any act of recognition for which the Executive Branch is constitutionally empowered; rather, they simply involve matters about the scope of defendant's official duties.

This is not to say, however, that the Executive Branch has no role to play in such suits. These immunity decisions turn upon principles of customary international law and foreign policy, areas in which the courts respect, but do not automatically follow, the views of the Executive Branch.

The court then adopted a position not advanced by the State Department to hold that activities in violation of peremptory norms of international law (also known as jus cogens ) can never be conducted in an official capacity. Because the conduct at the heart of the lawsuit clearly violated peremptory norms of international law, Samantar was not entitled to conduct-based immunity.

Samantar has submitted a new petition for certiorari to the Supreme Court to object to the Fourth Circuit's finding with respect to an exception to immunity for jus cogens violations, which the petitioner notes creates a circuit split. The Solicitor General filed an amicus brief urging the Court to grant the petition, vacate the decision, and remand the case to the lower court to consider immunity in light of recent events which may affect the State Department's determination. While the Solicitor General's brief agrees that there is no common law exception to immunity for officials accused of jus cogens violations, its main thrust is that the court should have treated the State Department's statement of interest as binding.

The Foreign Sovereign Immunities Act: Post-Samantar

Following the Supreme Court decision in Samantar , individual foreign officials have limited recourse to the FSIA to shield themselves from liability in U.S. courts. The Supreme Court downplayed concerns expressed by the appellate courts that reading the FSIA to exclude cases against foreign officials would permit plaintiffs to use artful pleading to select whether the FSIA or common law would govern their suits, depending on which would be most advantageous. The Court also emphasized that other means for obtaining immunity remain available for foreign officials. Foreign officials may have recourse to the common law of official immunity, especially with the support of the State Department. Moreover, the Court outlined three areas in which a suit against a foreign official may have to be dismissed regardless of the official's entitlement to immunity, specifically:

1. The absence of personal jurisdiction (which is automatic with respect to foreign states so long as an exception to the FSIA applies, but must be obtained through service of process against individuals, which effectively means the defendant must be found within the United States). 2. The need to join a foreign state as a necessary party pursuant to the Federal Rules of Civil Procedure (such as a case in which the foreign state itself, or an agency or instrumentality of a foreign state, is a required party because its interests are directly implicated by the subject matter of the case and its participation may be necessary to protect those interests, fully adjudicate a matter, or provide relief). 3. The need to consider the foreign state as the real party in interest (such as a suit brought against an individual in her official capacity, where damages or other relief are sought against the state entity).

If a reviewing court determines that the foreign state is a required party to a lawsuit or is the real party in interest, the FSIA might require dismissal. The Supreme Court declined to view every lawsuit against a foreign official as necessarily the equivalent of a suit against the foreign state merely because it involves passing judgment on the conduct of a foreign official acting in its behalf. Justice Stevens explained that lawsuits naming foreign officials are covered by the FSIA only if they are "in all other respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity."

Samantar had advocated an interpretation of the FSIA that would cover officials for all actions taken in an official capacity, which would be determined based upon (1) a notification by the foreign state or (2) elements of conduct demonstrating its inherently sovereign nature. The Court rejected Samantar's analysis, however, finding that the relevant issue is whether the official is being sued in his or her official capacity, not whether the conduct at issue in the lawsuit was undertaken in an official capacity. The Court distinguished official capacity suits, which are in "all respects other than name to be treated as a suit against the [state] entity," from personal capacity suits, which look to impose individual liability upon a government officer for actions taken under color of law.

Thus, if a lawsuit is filed against an official in his or her official capacity, the suit will be considered as one against the state itself, in which case the FSIA applies. If a suit is brought against an official in his or her personal capacity, the common law of foreign sovereign immunity applies, in which case the relevance of the official nature of the conduct may nevertheless be relevant to determining immunity. The Court gave little guidance regarding the application of common law immunity, leaving open the possibility that lower courts may analyze the issue based upon the traditional bases of an agency relationship. Immunity may turn on whether the state takes responsibility for the actions of its agent (the foreign official), just as it did in cases decided by interpreting the FSIA through the lens of the common law. On the other hand, state responsibility on the part of a government and individual responsibility on the part of the government official involved are not necessarily mutually exclusive.

As the Samantar Court noted, official immunity and state immunity will not always be coextensive. There may be lawsuits in which the state is entitled to immunity over a matter, but a foreign official may still be held liable for an injury caused by actions undertaken without or in excess of authority, meaning no immunity is available unless the official is entitled to status-based immunity (such as diplomatic or head-of-state immunity). There may also be cases in which the state is not entitled to immunity because an exception to the FSIA applies, but individual officials are nevertheless entitled to immunity or cannot be held personally liable for the conduct at issue.

To the extent the FSIA codifies common law foreign sovereign immunity, as in the case of lawsuits based on commercial activity under the restrictive theory, the recognition of a separate theory of immunity for foreign officials may not yield results significantly different from those cases in which courts applied the FSIA directly. The same common law considerations some courts previously applied to determine whether a foreign official is an "agency or instrumentality" under the FSIA would likely lead to similar results where the common law is applied directly. However, where Congress enacts exceptions to the FSIA that depart from the common law, outcomes may vary from cases decided under the pre-Samantar approach. For example, the FSIA terrorism exception permits suits for damages against foreign states "for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources … for such an act," but only if the state is designated by the State Department as a state sponsor of terrorism. Under the common law, immunity determinations for foreign officials have never depended on their state's designation as a sponsor of terrorism.

Immunity determinations under the common law, however, will likely be informed by "principles articulated by the Executive Branch." Future cases involving foreign official defendants may largely depend upon the State Department and the practices it develops for assessing foreign official immunity. Executive branch intervention in lawsuits against officials of U.S. allies may mitigate some of the concerns expressed by amici curiae that permitting civil suits against foreign officials will result in a flood of unfounded and politically motivated lawsuits against officials of certain states, permitting plaintiffs to effectively circumvent the sovereign immunity of those states. On the other hand, State Department involvement in terrorism cases against foreign officials in the past has generated friction with Congress.

Options for Official Immunity Following Samantar

While the Supreme Court's decision in Samantar will likely have little effect on status-based immunities based on custom or treaty, it may have complicated the immunity analysis courts must conduct in cases where the defendant is an individual rather than an entity and is not entitled to head-of-state or diplomatic immunity. Now that the courts can rely on the FSIA only in a limited manner to determine whether to exercise jurisdiction over such lawsuits, greater emphasis is required on the common law, an increased reliance on immunity determinations from the State Department may develop, or Congress could step in to create a statutory framework. It has been suggested that FSIA case law will remain relevant to common law assessments, but that common law immunity may result in broader rather than restricted opportunities for foreign officials to enjoy the benefits of immunity in U.S. courts.

Common Law Mechanism Aided by a Determination of the State Department on a Case-by-Case Basis

Common law immunity for officials has taken on two basic forms: (1) absolute immunity based upon status, as for heads of state, diplomats, and foreign ministers, and (2) function-based immunity for the acts of foreign officials done in their official capacities. In cases of status-based immunity, the State Department's suggestions of immunity will likely remain controlling, even where jus cogens violations are alleged to have occurred. While the State Department has argued that its views should control also in cases involving functional immunity, the only appellate court to have addressed the issue so far has rejected that view in favor of according the State Department views considerable weight that nevertheless does not amount to absolute deference.

Functional Immunity Under the Common Law

Function-based (or conduct-based) immunity is the type of immunity called into question by Samantar . Some take the position that the common law gives officials the same immunity that foreign governments themselves have, but only for official acts within the scope of the individual's duties. Under this view, the analysis would turn on an assessment of the nature of conduct, much as it did when the FSIA was thought to be controlling. It seems clear that "official capacity" has been a common theme in assessments under both the common law and the FSIA. However, while the common law focused on purpose and function of the activities in question, FSIA analysis focused more on the nature of the specific conduct.

Others believe that officials are entitled to immunity only if a lawsuit against the individual would impose an obligation on the foreign government. While Justice Stevens wrote for the Samantar Court, "[w]e do not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity," the decision does little to clarify which circumstances will bring about that result.

Those who argue for immunity with respect to virtually all authorized official conduct cite to judicial precedent from the early 1700s through the end of the 19 th century. Of particular import is the case of Underhill v. Hernandez , which states "because the acts of the official representatives of the state are those of the state itself, when exercised within the scope of their delegated powers, courts and publicists have recognized the immunity of public agents from suits brought in foreign tribunals for acts done within their own states in the exercise of the sovereignty thereof." The majority of courts have treated this principle as dispositive for determinations of immunity. The analysis, according to experts, is the same whether the source of common law official immunity is international law or federal common law, because international law is generally in alignment with the position of U.S. law in this area. Under this view, the scope of immunity is not affected by the status of the defendant as a current or former official, because so long as the act was an official one, the lawsuit effectively calls into question the conduct of the state. Some view this to be a principle of customary international law as indicated by practice of foreign courts, and predict that it will influence the development of federal common law as well as State Department recommendations.

Those who argue that official immunity turns on whether the lawsuit actually imposes an obligation on the foreign government disagree that federal common law provides any such clear-cut test. They identify a number of early cases where the Department of State or courts have denied that a determination of individual official immunity was to be based solely on the nature of the official's actions. Proponents of this position do not interpret international case law as demonstrating that foreign officials are always entitled to immunity for their official acts. They note that many of the cases cited to advance that theory involve foreign statutes that define the term "state" very broadly. Some foreign laws expressly define "state" to encompass individuals, and some also cover lawsuits based upon specialized circumstances, such as a request for damages from foreign state assets. Under their view, comity and convenience also play a role. Immunity may be withdrawn at the will of the sovereign and is not always governed by any generally accepted common law.

Deference to the Executive Branch

The Samantar Court seems to have agreed with the government that immunity at common law is informed by "principles articulated by the Executive Branch" and must be assessed as with deference to the executive branch in foreign relations matters. The Court did not say, however, that State Department recommendations were binding on the courts.

Part of the impetus behind enactment of the FSIA was a desire to lessen the role of the State Department in court cases involving foreign sovereigns. The State Department's susceptibility to diplomatic and political pressures to recommend immunity in a given action resulted in inconsistent treatment of foreign sovereigns, and the practice was becoming burdensome on the State Department. The State Department supported the FSIA and did not object to losing its role in assessing sovereign immunity claims against foreign states, including their agencies and instrumentalities. However, the State Department did not entirely retreat from making recommendations, and it continued to claim a role in determining immunity for foreign officials. The role at the time entailed recommendations to the Department of Justice as to whether to grant official immunity in a court proceeding. This recommendation, while not dispositive, was often treated with deference by the Department of Justice and the courts. In recent cases, the State Department has taken the position that its recommendations of immunity are controlling.

The Justice Department and the State Department suggested in Samantar that the State Department should continue its role in recommending immunity for foreign officials in light of the threat of reciprocal international legal action and the sensitive diplomatic as well as foreign policy judgments that go into immunity determinations. It remains to be seen whether this role will be similar in scope to the State Department's role before the enactment of the FSIA with respect to foreign officials. In the few prior cases in which the State Department made recommendations to the courts, deference was most often extended in the context of diplomatic or head of state immunity (status based immunities, rather than conduct based immunities). The modern emergence of human rights lawsuits may present legal and political issues unlike cases in which the State Department involved itself prior to passage of the FSIA. In any event, the pre-FSIA framework did not constitute absolute deference to the executive; there were notable instances where the courts did not defer to the executive.

Some argue that the greater the dependence on and deference to the State Department, in any case in which the defendant is a foreign official, the greater the likelihood courts will grind to a halt as they await an immunity determination from the executive branch. Another concern is that reliance on the State Department for suggestions of immunity will in practice result in inconsistent outcomes, as was sometimes the case with respect to lawsuits against foreign states prior to the FSIA. Moreover, some predict that an increased role for the State Department will result in its constant buffeting by competing demands from foreign governments whose officials are sued and from human rights advocates seeking accountability for human rights abusers on behalf of victims. Increased lobbying could also be expected from others with interests in such lawsuits, including commercial and banking interests who have a stake or perceive their assets to be at risk. Finally, one former U.S. official argues that "the administration must also consider the reciprocal impact on current and former U.S. officials, if it opens the door to lawsuits against foreign officials in the United States." This reciprocal impact may be of particular concern to the Department of Defense due to the controversial counterterrorism operations it engages in around the world.

Official Immunity by Statute

Congress could regularize determinations of foreign officials' immunity by amending the FSIA to account for them or by enacting a wholly new statute to govern immunity for foreign officials. The FSIA could be amended by altering the definition of "agency or instrumentality" to clearly cover an individual official. The definition of "state" could also be broadened explicitly to cover all foreign officials, or perhaps foreign officials in certain instances, as other legislatures around the world have done.

Congress could also look at amending statutes that provide specific causes of action, such as the TVPA, expressly to address immunity. The TVPA, enacted in 1991, is the primary means for victims of human rights abuses to seek remedy in U.S. courts, but some have expressed concern that it will become a dead letter if defendants are entitled to assert common law immunity in addition to other forms of immunity.

Another area in which sovereign immunity of individual officials has been prevalent is in lawsuits related to state-sponsored terrorist acts. Congress enacted an exception to the FSIA that specifically covers officials as well as states in order to abrogate their immunity and create a cause of action in terrorism cases.

Proposed Amendments to the FSIA: The Justice Against Sponsors of Terrorism Act

No legislation has yet been introduced in response to the Samantar decision; however, legislation to amend the FSIA has been introduced that would revoke immunity for foreign officials from lawsuits under the Anti-Terrorism Act. S. 1535 and H.R. 3143 , both captioned the Justice Against Sponsors of Terrorism Act, also aim to reduce some of the burdens faced by victims of state-sponsored terrorism in the United States in bringing lawsuits against foreign governments or foreign officials. The bills are nearly identical to S. 1894 from the 112 th Congress, which was ordered to be reported favorably out of the Senate Judiciary Committee in September 2012. The bills would amend the non-commercial tort exception to the Foreign Sovereign Immunities Act (FSIA) in 28 U.S.C. Section 1605(a)(5) expressly to include "any statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for such an act.... " This provision appears to be a reaction to a decision by the U.S. Court of Appeals for the Second Circuit in In re Terrorist Attacks of September 11, 2011 , in which the court held that the tort exception to the FSIA does not cover terrorist attacks in the United States unless it was conducted by a state designated as a sponsor of terrorism under the appropriate laws. Although another panel of the Second Circuit effectively overruled that aspect of the decision, it is possible that other circuit courts could reach the same conclusion.

The bills would not alter the tort exception's requirement that the tort be committed within the United States, but would clarify that it is the place where the injury occurs that matters, regardless of where the underlying tortious act or omission was committed. The bills would also permit contribution and indemnity actions against foreign states, so that private defendants (such as a bank or charity accused of financing a terrorist act) could bring foreign governments into a lawsuit in order to spread the liability. The bills are meant to clarify that foreign governments who commit or sponsor acts of terrorism in the United States are subject to liability under the tort exception to the FSIA the same as they would be for other tortious conduct by their officials or employees, regardless of whether the State Department has designated them as state sponsors of terrorism.

The revised tort exception would be more limited than the terrorism exception (28 U.S.C. §1605A) in one respect. The bill would change "personal injury" to "physical injury" and clarify that claims for emotional distress or other claims derived from injuries to another person that occur outside the United States are not part of the exception. (It seems that the amended phrase "physical injury" would also exclude claims derived from injuries suffered by others within the United States.) While a substantial number of claimants involved in lawsuits against Iran and other designated countries involve indirect claims, for example, for solatium or emotional distress, S. 1535 would apparently limit claims to victims who are present during a terrorist attack and who suffer a direct injury, the estates of those killed, and owners of property damaged by the attack.

Another section of the bills would eliminate the Anti-Terrorism Act (ATA) provision exempting foreign officials and governments from the ATA's civil remedy provision, while keeping the exemption intact for U.S. officials, agencies, or employees acting in an official capacity. The elimination of this exemption could effectively extend the terrorism exception to the FSIA beyond the four currently designated terrorism-sponsoring countries by providing a new cause of action independent from the one found in 22 U.S.C. Section 1605A(c), even for attacks that occur overseas. In addition, the bill's amendment to the ATA cause of action appears intended to permit the refiling of ATA claims that were previously dismissed for failure to satisfy the requirement for an exception under the FSIA, disallowing a defense based on the law of preclusion. A provision to permit the filing of cases where the dispute has already been litigated, however, could run afoul of the Supreme Court decision in Plaut v. Sprendthrift Farms , in which the Court held that Congress had violated separation of powers principles by requiring courts to reopen settled cases. On the other hand, previous terrorism cases against foreign states have been revived on Congress's enactment of new laws.

The Senate Judiciary Committee, Subcommittee on Crimes and Drugs of the 111 th Congress, held hearings on a similar measure, S. 2930 (also titled the Justice Against Sponsors of Terrorism Act). The proposed amendments to the FSIA in that bill received mixed reaction from witnesses at the hearings. Of particular concern was whether

1. such a provision could undermine the FSIA's codification of important long-standing principles of international law that protect foreign governments and the United States from lawsuits in each other's courts based on government activities; 2. such a provision could expose U.S. allies such as Israel to lawsuits in U.S. courts; 3. foreign governments could respond in kind and remove immunity provisions that currently protect U.S. officials from lawsuits abroad; 4. courts could find themselves entangled in the assessment of foreign sovereign immunity, and with it foreign policy matters, which are viewed as best left to the State Department.

Others, however, supported the bill as a means to

1. provide appropriate redress for victims of terrorism, 2. limit the role of the State Department in immunity determinations so that it would not be subject to excessive political pressures, and 3. clarify an error in prior interpretation of the FSIA tort exception that excludes terrorist acts that occur within the United States from its purview.

Conclusion

The Samantar decision clarified that the FSIA does not govern lawsuits against foreign officials, current or former. However, the Supreme Court emphasized the narrowness of its ruling, noting that it did not decide that foreign officials are not entitled to immunity at all. Rather, specific cases involving foreign officials as defendants will continue to follow ordinary rules governing civil procedure and jurisdiction in courts to determine whether a particular suit can go forward. If a court determines that a particular suit, although it names a specific official as the adversarial party, is really a lawsuit against a foreign state, then the FSIA will govern the suit. Lawsuits against individual officials may not be viewed as worthwhile considering that a judgment against an official need not be paid from the coffers of the state. Other remedial forms of relief may be unavailable or ineffective if exercised only against specific officials. In cases that do proceed against foreign officials, the defendants may be entitled to immunity under the common law or may be able to assert other defenses to jurisdiction or liability that would not be available to a defendant state.

For these reasons, the Samantar Court appeared to be relatively unconcerned with the predictions by some lower courts and amicus curiae that reading the FSIA to cover foreign states—but not officials of foreign states—would lead to the effective gutting of the FSIA. To the extent that the common law framework of foreign sovereign immunity envisions an increased role for the State Department, possible harmful effects on U.S. foreign policy may be mitigated. On the other hand, Congress and the executive branch have not always seen eye-to-eye regarding lawsuits against foreign states or their officials. The Samantar decision does not seem to question Congress's authority to enact a new statutory framework to govern official immunity in the event that any of the negative predictions, or perhaps unpredictable outcomes, come to pass.