An Unusual Separation of Power Episode: Samantar V. Yousuf and the Need for the Executive Branch to Assert Control over Foreign Official Sovereign Immunity Determinations

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INTRODUCTION

As more human rights cases are being initiated against current and former heads of state in courts around the world, the foreign sovereign immunity doctrine has become a hotly contested issue. Victims and the families of victims of human rights abuses are beginning to question whether the immunity doctrine should apply to officials who commit serious human rights offenses, and several states have followed suit.1 Foreign sovereign immunity, which was originally meant to allow for current state officials to have freedom to conduct foreign policy, has also traditionally protected former officials from suit after they leave office. International norms are beginning to shift, however, and some states are allowing suits to move forward against former officials in order to provide torture victims and their families vindication. The doctrine in the United States is in flux, leaving international lawyers questioning the sincerity of United States participation in human rights enforcement efforts. As a result, torture victims are left uncertain about whether their individual claims will have any chance in the United States court system.

The recent Supreme Court decision in Samantar v. Yousuf2 addressed the doctrine of foreign official sovereign immunity and resolved a circuit split regarding the federal statutory scheme of the doctrine in the United States. The decision, however, did not answer many of the questions regarding the doctrine's status or applicability in the United States court system.3 The Samantar decision clarified that foreign official immunity determinations are not controlled by existing federal law, but left open a heavy question: Who is actually responsible for deciding which officials can be tried in United States courts?4 The Supreme Court renounced the responsibility of providing an answer and indicated it had no intention of forcing the determination on any one branch.5 As a result, any ofthe three branches has the ability to take control ofthe determination, yet each is hesitating. It is rare to see the branches ofthe United States government politely ceding power to their counterparts.

This Note evaluates the ambiguity of the doctrine of foreign sovereign immunity in the United States today and the interesting interplay of power between the branches over the immunity determination, and argues that the Executive is the proper branch of the government to control immunity determinations going forward. Ultimately, if the Executive wants to maintain its power over this sensitive aspect of foreign policy, the State Department must act before such action is precluded by Congress.

Part I begins by briefly discussing the principal case, Samantar v. Yousuf, which provided the Supreme Court the opportunity to resolve the circuit disagreement regarding foreign official immunity in United States courts, specifically whether the Foreign Sovereign Immunities Act governs suits against foreign officials.6 Part ? outlines the evolution and significance ofthe doctrine of foreign sovereign immunity in the United States. An evaluation ofthe history reveals a strong, but not uniform, tendency of courts to deferto the executive branch in making foreign sovereign immunity determinations, thus mixing both the judicial and executive branches ofthe government in the process. Part II also discusses the Foreign Sovereign Immunities Act of 1976 (FSIA, or Act), which Congress enacted both to clarify the immunity doctrine and relieve the State Department ofthe diplomatic pressures associated with making suggestions as to immunity on behalf of the defendant states. A circuit split regarding the interpretation ofthe FSIA in cases against foreign officials emerged, and the Supreme Court granted certiorari to address the divergence in Samantar. While the decision resolved the split, it focused on state immunity without sorting out the doctrine of foreign sovereign immunity as applied to heads of state. …