Bradley and Goldsmith argue that the FSIA’s grant of immunity to “a foreign state” should be read to include current and former foreign officials for actions taken in their official capacity. Under their interpretation, “official capacity” actions would include “human rights abuses” and other violations of international law that “require state action,” such as the alleged torture and extrajudicial killing of a seventeen-year-old “in retaliation for his father’s political activities and beliefs” at issue in Filártiga v. Peña-Irala. They reject the familiar distinction in U.S. law between the capacity in which an individual official has acted, and the capacity in which that official is sued, as applied to foreign officials. Unless a foreign state chooses to waive its immunity, Bradley and Goldsmith’s interpretation would deprive U.S. courts of personal and subject matter jurisdiction in suits against current and former officials where the conduct at issue does not fall within an existing exception to the FSIA.8 This result would create a categorical barrier to most human rights suits beyond those contemplated by existing immunities and other applicable restrictions.
Officially Immune? A Response to Bradley and Goldsmith
Written by Chimene I. Keitner-
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It is often tempting to read statutes the way one thinks they ought to have been written. This impulse, though understandable, can create more problems than it solves. Such is the case with applying the Foreign Sovereign Immunities Act of 1976 (FSIA) to suits against current and former foreign officials, as Curt Bradley and Jack Goldsmith have recently proposed.
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Published in
Volume 36 (Spring 2010)
