The immunity of US officials for international law violations

The US Court of Appeals for the DC Circuit has recently issued a ruling (Ali v. Rumsfeld, decided 21 Jun. 2011) declaring that federal employees and officials have immunity from claims brought under Alien Tort Statute (ATS). The ruling was in response to a lawsuit filed against Donald Rumsfeld and three Army officers by four Afghans and five Iraqis claiming they endured torture and abuse while in US custody. The suit also attempted a Bivens remedy for Constitutional violations but that was struck down on other grounds.

In order to grant US officials immunity for lawsuits brought under ATS, the court relied on a piece of 1988 legislation known as the Westfall Act. It declared that federal employees have absolute immunity from civil claims for negligence, wrongful act or omission “while acting within the scope of his office.” However, the act specifically excluded from immunity employees accused of violations of the US Constitution or of federal statute. At issue in the ruling is whether or not international laws actionable under ATS would qualify as statute which federal employees could be sued for. Two of the three judges on the US Appeals DC Circuit Court panel held that the ATS is strictly a jurisdictional statute and cannot be used to trigger an exemption to the broad grant of immunity in the Westfall Act. Judge Harry T Edwards gave a dissent in which he made an intriguing argument that the Westfall Act was not intended to apply to serious acts of wrongdoing by federal employees such as torture:

Does the Federal Employees Liability Reform and Tort Compensation Act of 1988 (“Westfall Act”), Pub. L. No. 100-694, 102 Stat. 4563, bar appellants’ ATS claims from going forward? After careful consideration of Sosa and the case law construing the Westfall Act, I am convinced that the Westfall Act does not bar appellants’ claims. An action that is cognizable under section 1350 falls within the Westfall Act’s exception for “violation[s] of a statute of the United States under which such action[s] against an individual [are] otherwise authorized,” 28 U.S.C. § 2679(b)(2)(B). The Government argues that section 1350 cannot fall within this exception because the ATS is merely a jurisdictional statute. Appellees’ Br. at 47. In my view, Sosa requires the opposite conclusion: Appellants’ claims arising under section 1350 must fall within the statutory exception to the Westfall Act, because the ATS is a federal statute that incorporates substantive international norms and thereby directly authorizes recovery for deliberate torture perpetrated under color of official authority.
[…]
In enacting the Westfall Act, Congress apparently meant only to immunize common-law torts against federal officials. […] Indeed, the Supreme Court’s decision in Westfall v. Erwin, 484 U.S. 292 (1988), which Congress specifically overruled in passing the Westfall Act, addressed immunity in the context of a common-law negligence suit against federal employees. There is no evidence to indicate that Congress meant to address or foreclose actions under section 1350 brought against federal officials for torture; clear violations of the law of nations, such as torture, are not akin to the types of “routine acts or omissions” that Congress appears to have had in mind.

To support his case, Judge Edwards cites Karen Lin (Columbia Law Review, 2008) and her argument that the Westfall Act created an “unintended double standard” in which US officials cannot be sued for violations of international law but foreigners can. As Edwards puts it: “It is ironic that, under the majority’s approach, United States officials who torture a foreign national in a foreign country are not subject to suit in an action brought under section 1350, whereas foreign officials who commit official torture in a foreign country may be sued under section 1350″ (emphasis in the original).

It is also a crude irony that the legal immunity of American torturers under ATS is currently an unintended result of a law passed by Congress in the late 1980s. While it is certain that Congress in this post-9/11 era would vote to shield torturers from accountability, it is telling that the US judiciary has already found a technicality to make this unnecessary.

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