War in Somalia has been brutal.

Photographer: Jose Cendon/AFP/Getty Images

Federal Judges Show Sympathy for Torture Victims

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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International human-rights litigation in the U.S. is still alive, despite the U.S. Supreme Court’s best efforts to kill it. The latest evidence is a decision this week by the U.S. Court of Appeals for the 4th Circuit to allow part of a lawsuit alleging human-rights violations in Somalia in the 1980s to go forward. The case is thoroughly fascinating, on both the facts and the law. It sheds light not only on the state of human-rights law in the U.S., but also on the U.S. government’s murky record of enabling violations by its military allies.

The defendant is Yusuf Abdi Ali, a former colonel in the Somali national army under the regime of dictator Mohamed Siad Barre, who ruled the country from 1969 to 1991. Ali’s nickname was reportedly “Tukeh,” or “the Crow,” said to derive from his sharp facial features. According to at least one human-rights group and (at one time) the U.S. government, Ali presided over the killing of hundreds and perhaps thousands of members of the Isaaq clan in northern Somalia between 1984 and the end of the decade.

The plaintiff, Farhan Warfaa, a member of the Isaaq clan, alleges that troops under Ali’s command kidnapped and imprisoned him in 1987, then beat and tortured him under Ali’s orders for belonging to a resistance. He also alleges that Ali personally shot him and left him for dead when the cell in which he was being held was overrun by members of the resistance.

For such a case to come before a U.S. court at all, the court must have what’s called “personal jurisdiction” over the defendant. In this case, that wasn’t difficult: Ali lives openly in Arlington, Virginia.

If that surprises you, it should. The back story is that, as an officer, Ali had been trained multiple times at U.S. military bases, including Fort Benning in Georgia. In fact, he was in the U.S. getting military training when Barre’s regime was about to fall in 1990. Convinced that going home would be a mistake, Ali went to Canada and sought refugee status.

Canada deported Ali, on account of the “gross human rights abuses” he’d committed in Somalia. At first his return to the U.S. was blocked by the threat of similar proceedings. So Ali left the country, only to return a bit later on a spousal visa.

In 1998, Ali was arrested by U.S. immigration authorities and accused of lying on his visa application. An Immigration and Naturalization Service spokesman said at the time that Ali was responsible for the deaths of thousands. Ali somehow won the trial that followed. He has remained in Virginia ever since, becoming a lawful permanent resident -- a green-card holder.

Warfaa sued Ali under two different laws. One, the Alien Tort Statute, has been the subject of important Supreme Court decisions in recent years. To simplify and shorten a long and complicated story, that statute was enacted in 1789. It says that the federal district courts have jurisdiction over a suit by a noncitizen for a tort in violation of international law. Its original meaning has been heavily debated, but according to what I consider the best scholarly work on the subject, it was intended to allow foreigners in the U.S. to sue when promises of safe conduct made to them had been violated.

In 1980, the U.S. Court of Appeals for the 2nd Circuit rather creatively applied the Alien Tort Statute to allow a suit by a foreigner against a foreigner for harmful violations of international law that took place abroad. Human-rights activists considered this the Brown v. Board of Education of international human-rights litigation in the U.S., because it enabled major international rights violations to be litigated domestically, even when the U.S. wasn’t directly involved.

In 2013, in a landmark case called Kiobel v. Royal Dutch Petroleum, the Supreme Court radically curtailed this practice. It held that suits under the Alien Tort Statute could only proceed if the alleged conduct touched and concerned the U.S. A foreigner injuring a foreigner abroad ordinarily wouldn’t qualify.

The 4th Circuit applied the Kiobel precedent to block the suit against the Crow, saying that it involved conduct by one Somali against another that took place in Somalia. In dissent, Judge Roger Gregory wrote that the conduct did touch and concern the U.S.: Ali is a lawful permanent resident, he noted, and, what’s more, was repeatedly trained in the U.S. as part of the Cold War ties between the Barre regime and the U.S.

The majority’s rejection of that argument is probably consistent with the Supreme Court’s distaste for U.S. courts getting involved in foreign human-rights problems -- even when the U.S. is partly to blame. But the majority managed to keep Warfaa’s case alive, because he also alleges a violation of the Torture Victims Protection Act of 1991, which can be used against anyone found in the U.S.

Ali offered a defense under that act, too: He said that as an agent of the Somali state he should be immune from suit. Following 4th Circuit precedent, the court held that there’s no immunity for a sovereign state that violates the fundamental principles of international law.

Because torture is a classic violation of such fundamental principles, the 4th Circuit precedent means that the Torture Victims Protection Act applies against almost anyone, including a government official. To some degree, this holding circumvents the Supreme Court’s apparent disapproval of federal courts’ involvement in foreign torture cases.

The lesson is that U.S. courts can’t quite bring themselves to get out of the business of helping international victims of torture. True, this sometimes puts courts in the position of doing politics. But it also reminds us that a court’s most basic duty is to do justice. Anything that casts light on genocidal killing surely counts.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net