Yesterday, the U.S Supreme Court heard oral arguments in an interesting human rights case. Bashe Abdi Yousuf and a collection of former Somalians have sued Mohamed Ali Samantar, a former minister of defense in a region of Somalia, due to torture inflicted by the Somalian government under Maj. Gen. Mohamed Said Barre. Samantar, who now lives in Virginia, may be open to the lawsuit due to the Torture Victim Protection Act of 1991, which allows torture victims to bring suit against perpetrators of torture. However, Samantar has countered a defense under the Foreign Sovereign Immunities Act of 1976, which "bars suits against foreign states and their 'agencies or instrumentalities.' "
Much of the debate between attorneys and justices centered on how broad the immunity protection was, yet the most interesting part of the article came from Yousuf as he recounted the atrocities of the former regime:
"I was tortured—waterboarded [emphasis added] and put in electric shock."
This, of course, is interesting because it describes a practice that the United States utilized quite recently. Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, was waterboarded 183 times while Abu Zubaydah was waterboarded 83 times. Putting aside legal intricacies of whether Samantar is liable under the 1991 act, one must wonder how the U.S. Supreme Court would rule regarding waterboarding as torture. If the Court sided with the plaintiffs, it would effectively be saying that our own government engaged in activities that are against the civil law of this nation, in addition to any international criminal laws violated by our actions. I'm a legal novice, but I am sure there are laws prohibiting American government officials from being sued in this manner. Yet a verdict for the plaintiff (on the torture issue, not the issue of liability) would imply that the Supreme Court believes that the previous administration acted unlawfully.
From what I understand about this case, the justices of the Supreme Court will not actually address the issue of torture, but rather decide on the issue of whether Samantar can be sued before dismissing the case (if ruling in favor of Samantar) or sending it back to the proper court (if ruling in favor of Yousuf). However, it is interesting to think about how the justices would vote. Many of the conservative justices may be willing to side with the Bush Administration regarding the prerogative of the executive, but Justice Kennedy could be a hard sell. Kennedy has shown a past affinity for foreign law, and the international community has some sort of consensus against torture. One could easily imagine a Supreme Court decision declaring waterboarding to be torture, violating domestic and international law.
What do you think? Is waterboarding torture? If so, should Bush Administration officials be held responsible? In civil or criminal courts, or both?
Additionally, do you think perpetrators of torture from other countries should be held liable under U.S. law, if they currently reside in the U.S.? Or would the ICC be a better venue for these cases?
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