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Bashe Abdi Yousuf and four other former Somalis claim they were tortured or had family members murdered by the Somali government in the 1980s. They sued Mohamed Ali Samatar, a former Somali Prime Minister, in US federal court after discovering that Samatar was living in Virginia. In the Supreme Court today, Samatar's lawyers argued that his actions were taken while he was a government official, and thus Samatar should have immunity under the 1976 Foreign Sovereign Immunities Act (FSIA).

The FSIA says that foreign governments cannot be sued in US courts (with the exception of countries listed by the State Department as state sponsors of terrorism), and Samatar's argument is that, while the statute's terms don't protect government officials from suit, the law would be ineffective if a plaintiff could sue the top officials in that government. The rationale behind the immunity is that US courts should not pass judgment on foreign governments, but that immunity would be worthless if foreign government officials could be threatened with lawsuits over official acts they carried out in their home country.

Justice Stephen Breyer seemed the most receptive to this argument in court today, at one point telling Yousuf's lawyer that if the law doesn't protect officials, "this act is only good as against the bad lawyer." Any clever lawyer, Breyer said, would just sue the officials directly.

The lawyers for the Somalis argued that there were still teeth in FSIA, even if it does not protect officials individually, since any suit that asked for a change in government policy, return of land, or other remedies against a foreign government would be thrown out under FSIA. Further, some actions taken by government officials would still be protected under common-law immunity principles.

The argument that seemed to gain the most support, though, was based on the Torture Victim Protection Act (TVPA), passed by Congress in 1991. If government officials have immunity, and the TVPA did not change that, then the TVPA served no purpose, several Justices suggested. Lawyers for the Somalis replied that, in some cases, governments waive immunity protection for their officials, so torture prosecutions can proceed.

Overall, the stance of the Justices was unclear, since they were faced with seemingly contradictory statutory language. The case, Samantar v. Yousuf, will be decided by this summer.