CJA represents five Somali individuals in a suit against General Mohamed Ali Samantar accusing him of a wide range of human rights abuses committed during the regime of Siad Barré during the 1980s.  Mr. Samantar currently resides in Fairfax, Virginia.  The lawsuit alleges that, as Minister of Defense from 1980 to 1986 and then as Prime Minister from 1987 to 1990, Samantar's subordinates in the Armed Forces committed targeted civilians for widespread abuses, including torture, extrajudicial killing, and war crimes.  

Filed in 2004 before the U.S. District Court for the Eastern District of Virginia, the case was dismissed in 2007 on immunity grounds under the Foreign Sovereign Immunities Act (FSIA). CJA appealed and, in January 2009, the U.S. Court of Appeals for the Fourth Circuit reinstated the suit. The Fourth Circuit found that the FSIA does not apply to individuals and that Congress did not intend to immunize "individual foreign government agents like Samantar" when it enacted the FSIA.  The court further held that Congress did not intend to shield former government agents from suit under the FSIA.  This result was significant in that it upheld the right of survivors of human rights abuses committed in other countries to seek redress in U.S. courts against former government and military officials who are responsible for the abuses. 

On September 30, 2009, the U.S. Supreme Court agreed to review the case after Samantar petitioned for a writ of certiorari in June 2009. The key issue under review will be whether Samantar is immune from civil suit in the U.S. for human rights abuses committed in Somalia.

Background

In 1969, the Somali Armed Forces, led by Major General Siad Barre, toppled the democratically elected government of the new nation of Somalia.  During the 1970s and 1980s, these Armed Forces, with assistance from security agencies, carried out widespread atrocities against suspected opponents of the military dictatorship.  Human rights reports implicate the military in the systematic use of extrajudicial killings, torture, rape, and arbitrary and prolonged detention.

During the 1980s, the Somali Armed Forces initiated a brutal counterinsurgency campaign to deter civilians, largely from the north, from sympathizing with the opposition Somali National Movement (SNM).  The Armed Forces killed and looted livestock, blew up water reservoirs, destroyed homes, and tortured and imprisoned alleged supporters of the SNM, including businessmen, teachers, high school students, and nomads simply tending their herds.  Mass executions of civilians occurred regularly throughout the north during these years.

In June and July 1988, the Somali Armed Forces launched an indiscriminate aerial and ground attack on cities and towns in northwest Somalia, including Hargeisa, the second largest city in the country. The attack destroyed most of Hargeisa, with the most extensive damage in the residential areas, the marketplace and in public buildings in the downtown areas. The Somali Army engaged in systematic assaults on unarmed civilians, leaving more than 5,000 dead.  As a result of the fighting, approximately 400,000 Somalis fled to Ethiopia, where they remained in refugee camps for many years. 

Yousuf, et al. v. Samantar

On November 10, 2004, CJA filed a suit on behalf of several Somali plaintiffs against General Mohamed Ali Samantar for a wide range of human rights abuses committed during the 1980s by troops or security forces under his command and control.  Ali Samantar, now living in Fairfax, Virginia, served as Minister of Defense from 1980 to 1986 and then as Prime Minister from 1987 to 1990. The lawsuit alleges that Ali Samantar had command responsibility for the abuses alleged and/or that he conspired with, aided and abetted, or engaged in a joint criminal enterprise with subordinates in the Armed Forces and security forces who carried out these abuses.

Under the internationally recognized doctrine of "command responsibility," a military commander may be held responsible for abuses committed by subordinates if the commander knew, or should have known, about the abuses and failed to take all reasonable measures to prevent the abuses or punish the offenders. 

The plaintiffs in the case include Bashe Abdi Yousuf who currently resides in Atlanta, Georgia. He was a young businessman at the time he was arrested in 1981 for being a member of UFFO, a community organization seeking to improve conditions at the local schools and hospital.  He was charged with high treason, a crime that carried a mandatory death sentence by hanging.  He was severely tortured, tried before a kangaroo court, and then spent nearly seven years in solitary confinement in a small cell in a maximum security prison outside Mogadishu. 

Aziz Deria is also a plaintiff in this case.  Mr. Deria lost multiple members of his family in the indiscriminate attack on the city of Hargeisa by the Somali Armed Forces.

The case was filed jointly by CJA and the law firm of Cooley Godward Kronish LLP, working on a pro bono basis.  Lead lawyers at CJA are Moira Feeney and Matthew Eisenbrandt.  The co-counsel team at Cooley  is led by Bob Vieth, head of the litigation department of the Reston, Virginia office.  He is joined by Tara Lee, Maureen Alger and Sherron Thomas. 

In January 2005 the judge referred the case to the State Department for its input on whether General Samantar is entitled to head-of-state immunity.  The court did not receive a response from the State Department and no explanation for their silence was ever provided. 

Despite the stay, Federal District Court Judge Leonie Brinkema permitted the plaintiffs to continue with their pursuit of documents from the U.S. Government. CJA served a subpoena on the State Department requesting U.S. Government documents relating to human rights and military issues in Somalia. The Bush administration objected to attempts to enforce the subpoena, arguing that the government is not bound by Federal Rule of Civil Procedure 45 governing the enforcement of subpoenas because it is not a "person" under the rule.  The District Court for the District of Columbia agreed, holding that the subpoena was invalid. 

However, on June 15, 2006, the U.S. Court of Appeals for the D.C. Circuit overturned that decision, ruling that the U.S. Government is required to comply with subpoenas for documents in private lawsuits even when the government is not directly involved in the case. The appeals court sent the case back to the District Court to enforce the subpoena against the State Department.

Chief Judge Douglas H. Ginsburg, who was appointed by President Reagan, stated that the drafters of the rule on subpoenas "underestimated the creativity of the United States" when they concluded that the rule was "so simple that it did not need any discussion."  He concluded, "That creativity notwithstanding, we hold the United States is a 'person' within the meaning of Rule 45 -- as it has been held to be under every Rule thus far litigated."

Dismissal and Successful Appeal

On January 23, 2007, despite the fact that the State Department had not responded, Judge Brinkema of the Eastern District of Virginia reinstated the case.

On August 1, 2007, Yousuf was dismissed on sovereign immunity grounds pursuant to the Foreign Sovereign Immunities Act (FSIA). CJA appealed to the Fourth Circuit Court of Appeals and filed our opening brief in November 2007. Two amicus briefs were filed in support. One was prepared by the International Human Rights Clinic at Harvard Law School and submitted on behalf of Dolly Filártiga, Sister Diana Ortiz and a diverse group of religious groups, human rights organizations, and non-profits providing health and social services to torture survivors. The other was prepared by the Human Rights Clinic at the University of Virginia School of Law on Congressional intent and was signed by Congresswoman Sheila Jackson Lee.

On January 8, 2009, the Fourth Circuit reinstated the case against Samantar. The court reversed the decision of the district court that it lacks subject matter jurisdiction under the FSIA. The court held that the FSIA does not confer jurisdictional immunity on individual foreign government agents. The court remanded the case to the district court for further proceedings on Samantar’s remaining jurisdictional defenses including common law immunity, statute of limitations, and exhaustion of remedies. Samantar's counsel immediately indicated his intention to appeal. On February 2, 2009, the Fourth Circuit denied Samantar's petition for rehearing en banc.

SUpreme Court to Review the Case

On June 18, 2009, Samantar petitioned the U.S. Supreme Court for a writ of certiorari; our response was filed August 28, 2009.

On September 30, 2009, the U.S. Supreme Court agreed to review the case. The key issue under review will be whether Samantar is immune from civil suit in the U.S. for human rights abuses committed in Somalia.