an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Opinio Juris has been running a useful "insta-symposium" on Monday's Supreme Court decision in Samantar v. Yousuf, which held that the Foreign Sovereign Immunities Act does not apply to suits against officials of a foreign state as opposed to those against the state itself. Although it's difficult to disagree with Justice Stevens's ("admirably careful," according to Justice Scalia) textual analysis, I'm nevertheless surprised by the absence of a line of reasoning in both the majority opinion and OJ's commentaries: the relevance vel non of the Torture Victim Protection Act of 1991 (TVPA).
The TVPA, codified as a note to the Alien Tort Claims Act, creates a civil cause of action against "an individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture . . . [or] subjects an individual to extrajudicial killing." As the text suggests, the TVPA recognizes that the act must be committed by someone acting under actual or apparent authority of a foreign nation, i.e., someone who either is, or is pretending to be, an officer of a foreign state.
In practical terms, then, if the FSIA did apply to suits against officers of foreign states, the only cases where the TVPA would authorize a cause of action and the FSIA would not provide immunity (absent its exceptions) would be cases in which the defendant purported to be an officer of the foreign nation, but, in fact, was not. In that case, the defendant would satisfy the TVPA's cause-of-action requirement, but not fall within the scope of the FSIA's immunity. Somehow, I doubt one could reasonably conclude that that's what Congress meant in 1991 (the TVPA's legislative history only suggests an intent to leave the FSIA -- whatever it covered -- undisturbed).
Considering this exact point (the interaction between the FSIA and the TVPA) in 2008, the D.C. Circuit held that, if officers were "foreign states" under the FSIA, the TVPA "still has effect when the suit falls under one of the exceptions to the FSIA." That's descriptively true, but, absent a waiver of sovereign immunity, it seems pretty weak; after all, I'm hard-pressed to see how torture would fit within the "commercial activity" exception under 1605.
I raise this point not so much because I think it would have provided an important bolster for the majority's analysis; suffice it to say that Justice Stevens didn't need that much more support. Nor do I raise it to suggest that perhaps, contra the D.C. Circuit (and a handful of others), the TVPA does override parts of the FSIA; one of the unintentionally useful things that Samantar's holding appears to do is to moot that question. But if, as most of the OJ commentators appear to believe, the real question going forward is the scope of common-law immunity in tort suits against foreign officials, won't there be a pretty strong argument that, in cases -- like Samantar -- brought under the TVPA, that statute will be understood to have abrogated any such immunity?