Thursday, October 1, 2009
In Holder v. Humanitarian Law Project, Docket No. 08-1498, the U.S. Supreme Court will decide whether the Antiterrorism and Effective Death Penalty Act (AEDPA) that makes it a crime to provide "training," "service," or "other specialized knowledge," including expert advice and assistance" "derived from scientific or technical knowledge" and "personnel" to designated terrorist organizations is unconstitutionally vague or overbroad. This consolidated lawsuit was filed on behalf of persons who had supported and wanted to continue to support the nonviolent political and humanitarian activities of two groups that the U.S. Secretary of State has designated as terrorist: the Kurdistan Workers’ Party (PKK), the main Kurdish political party in Turkey, and the Liberation Tigers of Tamil Eelam (LTTE), an advocate for self-determination of the Tamils in Sri Lanka. The Ninth Circuit found in favor of plaintiffs, striking down this provision of AEDPA as unconstitutionally vague.
In Samantar v. Housuf, Docket No. 08-1555, the U.S. Supreme Court will decide (1) whether a foreign state's immunity from suit under the Foreign Sovereign Immunities Act (FSIA) extends to an individual acting in his official capacity on behalf of a foreign state, and (2) whether an individual who is no longer an official of a foreign state at the time the suit is filed retains immunity for acts taken in the individual's former capacity as an official acting on behalf of a foreign state. This case involves a lawsuit under the Torture Victims Protection Act (TPVA) against a former prime minister of Somalia who is accused of overseeing killings and other atrocities. Mohamed Ali Samantar of Fairfax, Va., was defense minister and prime minister of Somalia in the 1980s and early 1990s under dictator Siad Barre. The lawsuit alleges that Samantar was responsible for killings, rapes and torture, including waterboarding, of his own people while in power, particularly against disfavored clans. The Court of Appeals for the Fourth Circuit held that individual officials of foreign governments do not fall within FSIA's definition of shielded "agency or instrumentality of a foreign government," 28 U.S.C. § 1603(b), and thus do not enjoy immunity from suit in this country; and that even if FSIA applies to individual defendants, it does not apply to former foreign government agents, whose immunity is determined, under Dole Food Co. v. Patrickson, 538 U.S. 480 (2003), as of time suit is filed. Thus, the lower court determined that plaintiffs lawsuit against Samantar under TPVA could proceed.