Sen. Arlen Specter (D-Pa.) today is filing a brief on behalf of himself and two other members of Congress in a closely-watched human rights case testing whether foreign torture victims can seek damages in U.S. courts. The case, which will be argued March 3, is Samantar v. Yousuf, a dispute over the meaning of the Torture Victim Protection Act of 1991, which Specter sponsored.
In passing the law, Specter asserted in the brief, Congress intended "to provide redress for egregious acts that infringe human rights and are an affront to human dignity." Joining Specter on the brief were Sen. Russ Feingold (D-Wis.) and Rep. Sheila Jackson Lee (D-Texas.)
Bashe Abdi Yousuf, a Somali businessman who was tortured and imprisoned under the Siad Barre regime in Somalia in the 1980s, invoked the law in suing Mohamed Samantar, former defense minister and prime minister of Somalia. Samantar fled Somalia in the early 1990s and now lives in Virginia. Four other Somali torture victims are also part of the suit, first filed in 2004 by the Center for Justice and Accountability. At the district court level, Samantar argued successfully that he was protected from suit under the Foreign Sovereign Immunities Act, and the suit was dismissed. But the U.S. Court of Appeals for the 4th Circuit reversed, finding that immunity under the law does not extend to individuals.
In his brief Specter -- who has argued before the Supreme Court -- asserted emphatically that Congress intended to cover cases like Yousuf's, and that to interpret the law otherwise would "effectively nullify" the law. A .pdf copy of the brief can be found here.
The fact that the Court agreed to hear the case has fueled worry by legislators and human rights groups that the law is in jeopardy. In a floor statement on thec ase last December, Sen. Patrick Leahy (D-Vt.) said, "I am concerned that the TVPA's crucial role in protecting human rights may be weakened or even rendered meaningless."
Eileen O'Connor, a former CNN foreign correspondent and now chair of the Center for Justice and Accountability, said the Specter brief and others that are expected to be filed today will be important in clarifying that Congress intended to make sure that "people who commit human rights abuses cannot just come to the United States and find safe haven." O'Connor is counsel at McDermott Will & Emery in Washington.
UPDATE: Solicitor General Elena Kagan also filed a brief in the case today, supporting affirmance of the 4th Circuit ruling. The brief argues that the Foreign Sovereign Immunities Act as written does not protect foreign officials from lawsuit, and should not alter the tradition that the executive branch makes the "sensitive diplomatic and foreign-policy judgments" about whether foreign officials should be given immunity. "In the view of the United States," wrote Kagan, "principles articulated by the Executive Branch, not the FSIA, properly govern the immunity of foreign officials from civil suit for acts in their official capacity."