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US Case Involving Somalis Tests Immunity and Torture Laws

Supreme Court to decide whether former foreign-government officials who committed human-rights abuses while in office are entitled to immunity

The U.S. Supreme Court hears a case Wednesday involving a former Somali defense minister accused of torture. The case will present the court with a test of U.S. laws on both immunity and torture.

Andrea Prasow, a senior counsel on counter-terrorism for U.S.-based Human Rights Watch, detailed some of the particulars of the case, dating back to the 1980s.

"There are survivors of torture who allege that they were tortured in Somalia, based on their clan associations. They found the petitioner Samantar was living in the United States and sued him, under U.S. law, saying he is liable to them for money damages because of the torture that he was responsible for," Prasow said.

Former Somali defense minister Mohamed Ali Samantar, who also once served as Somalia's prime minister, currently lives in Virginia, near Washington, D.C. He says he is innocent of the torture allegations. He says the accusers were part of a foreign-backed movement that wanted to secede from Somalia, and they were dealt with as invaders.

Plaintiffs include a naturalized U.S. citizen who says he was tortured and kept in solitary confinement for six years. Alleged instances of torture include electrocution and stress positions. He denies having been part of a rebellion.

Another U.S. citizen says his father, brother and cousin were abducted and never seen again.

Nearly 20 years ago, the U.S. Congress passed the Torture Victim Protection Act that allows victims to file lawsuits in U.S. courts against individuals who committed acts of torture outside the United States.

But in this case, that act, as Prasow explains, is running up against another one, the Foreign Sovereign Immunity Act that provides officials of foreign states with immunity from U.S. lawsuits.

"There is a danger here that those laws could be interpreted to really allow former officials of foreign governments to hide behind a cloak of official immunity and to not allow the survivors of torture to really obtain a form of redress," Prasow said.

The Supreme Court is being asked to decide whether former foreign-government officials who committed human-rights abuses while in office are entitled to immunity.

Activists say under no circumstances should torturers be allowed to have safe haven in the United States.

Other lawyers, including from prominent Jewish American organizations, such as the American Association of Jewish Lawyers and Jurists, say if immunity is not given this could lead to a rash of cases against alleged torturers, including from Israel. They say an American court should not be asked to evaluate what happened in a foreign country.

Gabor Rona is the international legal director of Human Rights First, which was closely involved in passing the torture protection act. He says there is uneasiness within U.S. government circles as well over how the Samantar case will proceed.

"There have been credible allegations made of torture against U.S. officials in connection with secret detentions, in Guantanamo, and other detention situations in the fight against terrorism. And so there is a sensitivity here in the United States now, that we could possibly be talking about a double standard," Rona said.

He says U.S. courts have not been, in his words, "sympathetic" to cases alleging U.S. torture.

"There is kind of an unspoken uneasiness here about claims involving foreign torturers, and if those are allowed to go forward, whether that will somehow make us uneasy about the fact that, at the same time, American courts are standing in the way of victims of American torture achieving the right to a remedy," Rona said.

Several activists said they would try to follow the proceedings in the Samantar case directly at the Supreme Court on Wednesday.