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. 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"). 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.