Torture in Somalia

Torture in Somalia

After the Supreme Court heard an hour of technical arguments Wednesday about whether foreign officials may be sued in the United States over torture claims, one of the plaintiffs in the case stood on the steps outside and recalled what had happened to him in Somalia in the 1980s.

“They destroyed my entire tribe,” Bashe Abdi Yousuf said of the regime of Maj. Gen. Mohamed Siad Barre. “I was tortured — waterboarded and put in electric shock.”

Mr. Yousuf, now an American citizen living in Georgia, explained why he and others sued Mohamed Ali Samantar, who served as minister of defense and prime minister in the Siad Barre regime and now lives in Virginia.

“He is the highest ranking one alive,” Mr. Yousuf said. “Secondly, he’s here.”

Inside the courtroom, the justices wrestled with two laws that seemed to point in different directions. The Torture Victim Protection Act of 1991 allows lawsuits against individuals said to have committed torture under the authority of a foreign nation. But the Foreign Sovereign Immunities Act of 1976 bars suits against foreign states and their “agencies or instrumentalities.”

Most of the argument concerned whether that last phrase included current or former officials.

Patricia A. Millett, a lawyer for the plaintiffs, said that allowing the immunity law to override the one allowing torture suits would render the latter “a very empty statute.”

Justice Antonin Scalia made the opposite point, saying, “I think it’s a pretty empty statute as well to interpret the Foreign Sovereign Immunities Act to immunize the Department of Defense but not the secretary of defense.”

Justice Stephen G. Breyer suggested that it would be an odd legal system that would require a lawsuit against a foreign government to be dismissed but allow the same suit to proceed once the plaintiff listed the names of the officials involved.

“This act is only good against a bad lawyer?” he asked. “Because any good lawyer would simply fill in the right names.”

Mr. Samantar has called the accusations in the lawsuit baseless. His lawyer, Shay Dvoretzky, said on Wednesday that Mr. Samantar had worked on behalf of his government “in the midst of what was effectively quelling a secessionist insurgency.”

Deputy Solicitor General Edwin S. Kneedler sided with the plaintiffs in urging the court to reject Mr. Samantar’s statutory immunity argument. But he said Mr. Samantar may still be immune from suit under common law principles, depending on the position taken on that by the State Department.

Justice Scalia said he was troubled by that approach. “I find it much more acceptable to have the State Department say that a particular foreign country should be let off the hook,” he said, “than I do to leave it up to the State Department whether an individual human being shall be punished or not.”

Justice Ruth Bader Ginsburg asked Mr. Kneedler what the State Department’s position was on whether Mr. Samantar deserved the common-law immunity he had been describing.

Mr. Kneedler would not answer. “We are not addressing that here,” he said.

The argument also touched on broader themes.

“One nation’s courts cannot sit in judgment of another nation’s acts,” Mr. Dvoretzky said. “U.S. courts are not the ultimate arbiters of foreign law.”

Justice Scalia made a similar point in an exchange with Mr. Kneedler.

“A few years ago, a Spanish magistrate allowed a lawsuit to proceed, as I recall, against our secretary of defense,” he said. Justice Scalia appeared to be referring to an inquiry opened last year by a Spanish judge into accusations that six former Bush administration officials had violated international law by giving legal cover to torture at the United States prison at Guantánamo Bay, Cuba.

“It’s up to the Spanish government to assert that that suit should not proceed, and if it doesn’t, it’s perfectly O.K.?” Justice Scalia asked.

Mr. Kneedler responded that whether such a suit was proper “would depend on the circumstances.”

Before the argument in the case, Samantar v. Yousuf, No. 08-1555, Chief Justice John G. Roberts Jr. welcomed Lord Phillips, the president of the new Supreme Court of the United Kingdom. Perhaps in recognition of the visit, Justice Anthony M. Kennedy asked a question concerning a 2006 decision of the House of Lords. That decision barred a suit against Saudi Arabia and Saudi officials by people who said they had been tortured there.