7:53 PM, May. 16, 2012
RICHMOND — A lawyer for the former prime minister of Somalia told a federal appeals court Wednesday that a judge improperly acquiesced to the State Department's view that his client can be sued over alleged war crimes.
Mohamed Ali Samantar is appealing U.S. District Judge Leonie Brinkema's ruling that he is not entitled to immunity from a lawsuit filed in 2004 by several Somalis who claimed they suffered brutal repression, including torture and mass killings, under the regime of dictator Siad Barre. Samantar has denied any wrongdoing.
Samantar was a top official in dictator Barre's regime, serving throughout the 1980s as vice president, defense minister and prime minister. He left Somalia after the regime's collapse in 1991 and eventually settled in Fairfax County.
Samantar attorney Joseph Peter Drennan told a three-judge panel of the 4th U.S. Circuit Court of Appeals that the issue of civil immunity for a former official of a foreign state is one for the judiciary, not the executive branch. He said Brinkema simply accepted the State Department's determination without conducting any legal analysis.
"The government deigned to state what the common law ought to be in this country," Drennan said. "That is not the call of the executive, it is the call of the judicial department."
He acknowledged that the executive branch has a foreign relations interest in such matters, but said the State Department failed to explain how granting Samantar immunity could embarrass the U.S. or implicate its foreign policy.
Plaintiffs' attorney James Tysse argued that the State Department's determination is entitled to significant deference — and that's what it got from Brinkema.
He also said the foreign policy concern is clear: "The United States condemns human rights abuses and has a strong interest in protecting human rights."
Tysse said that if former foreign leaders are awarded civil immunity, the U.S. could become a safe haven for those responsible for atrocities.
Samantar has been trying to assert immunity for years. He succeeded at first, with Brinkema ruling in 2007 that he enjoyed the protection as a former official of a foreign state. But the ruling was overturned on appeal, and the case wound up back in Brinkema's court after it was reinstated by the U.S. Supreme Court.
In February, citing his failing health and mounting legal costs, Samantar agreed to accept legal liability for the alleged war crimes although he continued to maintain his innocence. Brinkema has not yet entered a default judgment, however, and Samantar is continuing to pursue the immunity claim.
Tysse told the appeals court the immunity argument will be moot as soon as the judge decides the amount of damages and records the judgment, but Drennan disagreed. He said Samantar cannot default in a proceeding he should not have been subjected to in the first place.
The appeals court typically takes several weeks to rule.