WARARKA BARAAWEPOST Sabti 19 december 2009

 

 

Yousuf vs M. A. Samatar (Supreme Court)


This suit was brought by CJA and pro bono co-counsel Cooley Godward Kronish LLP in 2004 on behalf of five torture survivors:  Bashe Abdi Yousuf, a young business man detained, tortured, and kept in solitary confinement for over six years; Aziz Mohamed Deria, whose father and brother were abducted by officials and never seen again; John Doe I, whose two brothers were summarily executed by soldiers; Jane Doe, a university student detained by officials, raped 15 times, and put in solitary confinement for over three years; and John Doe II, who was imprisoned for his clan affiliation and was shot by a firing squad, but miraculously survived by hiding under other dead bodies. The case aims to hold former Minister of Defense and Prime Minister Mohamed Ali Samantar accountable for the egregious human rights abuses perpetrated by subordinates acting under his direct authority.

In 2007, Samantar successfully moved to dismiss the case on immunity grounds under the Foreign Sovereign Immunities Act (FSIA). CJA appealed and the U.S. Court of Appeals for the 4th Circuit reinstated the case against Samantar on January 8, 2009. Samantar in turn appealed to the U.S. Supreme Court.

On September 30, 2009, the U.S. Supreme Court agreed to review the case. The key issue under review is whether Samantar, as a former government official, is immune from civil suit in the U.S. for human rights abuses committed in Somalia.

No person has ever been held legally responsible for the abuses committed by the military government against the civilian population of Somalia in the 1980s.

BACKGROUND


In the early 1980s, the military dictator General Siad Barre initiated a brutal counterinsurgency campaign to crush the opposition Somali National Movement (SNM) in northwestern Somalia.  The Somali Armed Forces killed and looted livestock, blew up water reservoirs, destroyed homes, and tortured, imprisoned and summarily executed civilians accused of supporting the SNM, including businessmen, teachers, high school students and nomads simply tending their herds.

During this time, defendant Mohamed Ali Samantar served as Vice President and Minister of Defense (1980-1986) and Prime Minister of Somalia (1987-1990).  Under Samantar's tenure,  the Somali government's brutal counterinsurgency war against separatists culminated in an indiscriminate aerial and ground assault on Hargeisa, the nation's second largest city.  The attack struck civilian neighborhoods the hardest and leveled most of the city; over 5,000 residents were killed. The plaintiffs are survivors of these widespread human rights violations:

Bashe Abdi Yousuf  was a young businessman who helped form a public service organization dedicated to improving education and health care in the Somali city of
Hargeisa. In November 1981, he was abducted by government agents and taken to a detention center where he was tortured repeatedly over a period of several months. Among other things, Yousuf was subjected to electroshock treatment and a stress-position torture called “the MIG,” in which Yousuf ’s hands and feet were tightly bound together behind his back so that his body was pulled into a U-shape with his limbs high in the air. The torturers then placed a heavy rock onto his back, producing excruciating pain and causing the ropes to cut deeply into Yousuf ’s arms and legs.  Yousuf was interrogated about the members and activities of his organization and told that the torture would end if he falsely confessed to anti-government crimes. Over the course of several months, his interrogators subjected him to eight sessions of waterboarding. He spent the next six years of his life in solitary confinement in near total darkness. Fleeing Somalia after his release, Yousuf arrived in the United States in 1991, and later became a naturalized United States citizen.

Aziz Mohamed Deria now resides in the
United States. Mr. Deria’s father and brother were extrajudicially killed by members of the Somali Armed Forces during the indiscriminate attack on the city of Hargeisa

John Doe I
 stills reside in
Somalia and has chosen to remain anonymous for fear of reprisals.  He and his brothers were arbitrarily detained by Somali government forces  and threatened with death.  He managed to escape with his life, but his brothers were killed in a mass execution. 

John Doe II still resides in
Somalia and remains anonymous for reasons of security. He served as a non-commisioned officer in the Somali National Army, when he along with other Isaaq officers were arrested and transported to an execution site.  John Doe II survived a mass execution by hiding under a pile of dead bodies. 

Jane Doe  In 1985, Jane Doe was abducted from her home by Somali security agents.  Accused of being a subversive student leader, she was detained for over three months in a small cell, her left leg chained to the floor and her arms tied behind her back with wire. In addition to being regularly interrogated and tortured, Jane Doe was raped at least fifteen times by a man in a camouflage uniform after he cut open her vagina with fingernail clippers.  Later, Jane Doe was tried by a
Somali National Security Court without benefit of legal counsel and was  sentenced to life in prison. She served three and a half years of this sentence in solitary confinement before she was finally released. Freed from prison, she fled Somalia and now resides in the United Kingdom.

» » Read more about our clients.

LEGAL PROCEEDINGS


Complaint

CJA filed the complaint with the U.S. District Court for the Eastern District of Virginia on November 10, 2004.  Samantar—who now lives in Fairfax, Virginia—was served at his home.  Brought under the ATS and the TVPA, the suit alleges that Samantar had command responsibility for extrajudicial killing; arbitrary detention; torture and cruel, inhuman or degrading treatment; crimes against humanity and war crimes carried out by his subordinates during this period.  In response, Samantar claimed head-of-state immunity.

Solicitation of the State Department’s Opinion

In January 2005 the court stayed the proceedings in order to give the State Department an opportunity to weigh in on the question of immunity.  The court requested that Samantar provide regular updates on the State Department’s position.  For two years, Samantar reported each month that the request was “under consideration.”

State Department Refuses to Comply with Subpoena

Despite the stay, District Court Judge Leonie Brinkema allowed the plaintiffs to subpoena documents from the U.S. Government. CJA served a subpoena on the State Department that requested documents relating to human rights and military issues in Somalia.  The Bush administration objected to all attempts to enforce the subpoena, arguing that the government is not bound by Federal Rule of Civil Procedure 45, which governs the enforcement of subpoenas, because it is not a "person" under the rule.  CJA filed a motion to compel the State Department to comply with the subpoena, but the District Court for the District of Columbia agreed with the U.S. government position, holding that the subpoena was invalid.

Appeal of Lower Court’s Subpoena Ruling

On appeal, the U.S. Court of Appeals for the D.C. Circuit overturned the District Court’s decision on June 15, 2006. The appeals Court held that the U.S. Government is required to comply with subpoenas for documents in private lawsuits, even when the Government is not directly involved in the case.  The appeals Court sent the case back to the District Court to enforce the subpoena against the State Department.

Case Dismissed on Statutory Immunity Grounds

After receiving no Statement of Interest from the State Department, the Court reinstated the case on January 22, 2007. Shortly thereafter, Samantar filed another motion to dismiss, arguing that he was shielded from civil liability by  the Foreign Sovereign Immunities Act (FSIA). On April 27, 2007, the District Court granted Samantar’s motion.  The Court held that the FSIA provides immunity from civil lawsuits to foreign states and to their agencies and instrumentalities.  Judge Brinkema wrote that, although the FSIA makes no direct mention of individual officials, individuals acting in an official capacity should be treated as an agency or instrumentality and should likewise benefit from immunity.  Thus, the plaintiffs were barred from bringing suit against Samantar.

Appeal to the Fourth Circuit

The plaintiffs appealed the District Court’s ruling to the Fourth Circuit Court of Appeals, arguing that:

·                         the FSIA does not apply to individual officials, only to foreign states or their agencies or instrumentalities;

·                         even if the FSIA did apply to individuals, such persons would only be immune if they were agents or officials at the time of the filing of the suit;

·                         in any case, FSIA immunity cannot possibly attach to illegal acts such as torture, which are outside the scope of authority of foreign officials;

·                         furthermore, at the time of the filing, there no longer was a “state of Somalia” that could qualify as a foreign state under the FSIA.


Two amicus briefs were filed in support of the plaintiffs' appeal.  One brief was prepared by the International Human Rights Clinic at Harvard Law School and submitted on behalf of Dolly Filártiga, Sister Dianna Ortiz, and a diverse group of religious groups, human rights organizations, and non-profits providing health and social services to torture survivors.  A second brief, focusing on congressional intent, was prepared by the Human rights Clinic at the University of Virginia School of Law and was signed by UVA professors and Congresswoman Sheila Jackson Lee.

Fourth Circuit Overturns the Dismissal


On
January 8, 2009, the Fourth Circuit reinstated the case against Samantar. The Fourth Circuit panel held (1)  the FSIA does not confer jurisdictional immunity on individual foreign government officials and (2) even if the FSIA did apply to individuals, it would only apply if they were officials at the time of the filing of the suit. The Fourth Circuit remanded the case to the District Court for further proceedings. Samantar petitioned for rehearing en banc by the entire Fourth Circuit Court of Appeals. However, on February 2, 2009, the Fourth Circuit denied Samantar's petition.

Supreme Court Grants Cert Petition

In June 2009, Samantar filed a petition for writ of certiorari asking the United States Supreme Court to review the Fourth Circuit's decision rejecting his claim of immunity under the FSIA.  On September 30, 2009, the U.S. Supreme Court agreed to review the Fourth Circuit's decision. The key issues under review will be (1) whether the immunity from civil suits applicable to foreign states extends to individual foreign officials and (2) if so, whether this immunity extends to former officials, like Samantar, who no longer hold office at the time of suit.

Shabakadda warbaahinta ee Baraawepost  Muqdisho Somalia webmaster@baraawepost.com