[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in Samantar v. Yousuf [oral arguments transcript, PDF; JURIST report] on whether a foreign state's immunity under the Foreign Sovereign Immunities Act [materials] extends to an individual acting in an official capacity on behalf of the foreign state. The plaintiffs allege that former Somali defense minister and prime minister Mohamed Ali Samantar committed acts of torture during the regime of Somalian dictator Mohamed Siad Barre. They brought suit against Samantar, who now resides in Virginia, under the Torture Victims Protection Act [text]. The US Court of Appeals for the Fourth Circuit held that immunity did not apply to individuals [opinion, PDF], allowing the suit to proceed and reversing the district court's opinion. Counsel for the petitioner argued:

The FSIA applies to suits against foreign officials for acts taken on the state's behalf, because such suits are the equivalent of a suit against the state directly. ...

The Torture Victim Protection Act creates a cause of action but is silent about immunity, and therefore has to be interpreted consistently with background immunity principles and consistently with a preexisting statute codifying immunity...

the Torture Victim Protection Act, in which Congress did create a cause of action was - that cause of action was created for - to impose a liability, personal liability, for acts that were done with "actual or apparent," but included with actual, authority of the foreign state.

Now, if Congress believes that the FSIA immunized everyone who undertook acts under color of law, or at a minimum with actual authority of the foreign state, that was a very empty statute.