On March 3, the Supreme Court heard oral arguments in Samantar v. Yousuf et al., an appeal of a case involving Mohamed Ali Samantar, who served as minister of defense and prime minister of Somalia during the bloody dictatorship of Siad Barre.
Samantar was sued by a group of Somalis and Somali-Americans who were raped, tortured or imprisoned by the Barre regime, and the Supreme Court is reviewing the legality of the lawsuit. As is customary in such high-profile cases, many groups with concerns over the ramifications of the court’s decision have filed “amicus” or “friend-of-the-court” briefs, which urge the Supreme Court to rule one way or the other. Samantar’s defenders are few in number, but, surprisingly, they include four of the largest Jewish communal organizations in America: the American Jewish Congress (AJCongress), the Zionist Organization of America (ZOA), the Orthodox Union (OU), and Agudath Israel, as well as the government of Saudi Arabia. None of these parties were required by the court to offer their opinion — amicus briefs are submitted voluntarily — and the Jewish groups’ decision to participate in such an unholy alliance speaks volumes about their distorted priorities.
These groups are not alone in their interest in the case — the Somali victims’ supporters include a range of human rights organizations, legal scholars, retired U.S. military officials, as well as the United States government — and some background information is necessary to understand why so many different organizations have chosen to get involved.
The challenge that went before the Supreme Court is whether Samantar, who currently resides in Fairfax, Va., can be sued in a U.S. civil court under the Torture Victims Protection Act, which permits lawsuits against government officials who commit torture, murder and the like. Samantar’s lawyers maintain that he is protected by the Foreign Sovereign Immunities Act, which grants legal immunity to foreign governments. The question before the court is whether that immunity extends to individual officials of a foreign government, especially officials who are no longer in power.
To be clear about the scope of the case: the Supreme Court will not be deciding whether Samantar authorized, or was complicit in, war crimes. Indeed, that is hardly open to question; there is incontrovertible evidence that, during the 1980s, the Somali government committed widespread human rights abuses, including torture, massacres, forced disappearance, and extrajudicial imprisonment. Whether or not the Supreme Court decides that Samantar, as a former Somali government official, is immune from being sued in U.S. courts, there is little doubt that he has blood on his hands.
Why then would four major Jewish communal organizations choose to enter the fray and defend so despicable a figure? Their answer is that they are concerned about how the broader legal aspects of the case relate to Israel’s welfare. As the jointly filed ZOA/OU/Agudath Israel amicus brief argues, allowing Samantar to be sued in a U.S. court would “encourage the institution of many unfounded lawsuits in the United States courts against present and former government officials of the State of Israel.”
This concern is reasonable, to a certain extent: the last few years have seen a troubling increase in politicized court cases against Israeli officials. While most of these cases have occurred in European courts — such as the warrant for Tzipi Livni’s arrest recently issued by a London judge — the Jewish groups fear that if the Supreme Court permits the Samantar lawsuit to go forward, Israeli officials will soon be bombarded with unfounded lawsuits from alleged victims of Israeli military activity.
But these Jewish organizations fail to acknowledge that there is reason to believe that a Supreme Court decision denying Samantar immunity would have little effect on Israelis. As the U.S. government’s amicus brief explains, U.S. courts have traditionally deferred to the Executive Branch when it comes to lawsuits against foreign officials. If the State Department deems a lawsuit harmful to U.S. foreign relations or inconsistent with international law, the courts have generally dismissed it immediately. Therefore, even if the Samantar lawsuit is deemed legitimate, a similar lawsuit against an Israeli official could only proceed if the State Department approves of it. Considering the close U.S.-Israel relationship, that is highly unlikely to happen.
More importantly, the support of Samantar by these four Jewish organizations demonstrates the cynicism and hysteria that can develop when the narrowest interpretation of support for Israel comes at the expense of all other moral priorities. The American Jewish community has, historically, prided itself on supporting victims of injustice, wherever they might be found. When Supreme Court Justice Louis Brandeis was president of the ZOA, he advocated for the Zionist cause in conjunction with his support for workers’ rights and economic reform. The AJCongress was as at the forefront of the civil rights movement. As for the OU and Agudath Israel — organizations that claim to represent traditional Judaism in America — to publicly support a perpetrator of war crimes is not only an affront to Jewish moral values but a true chilul Hashem (desecration of God’s name).
No matter how the Supreme Court rules in Samantar v. Yousuf, the fact remains that Mohamed Ali Samantar was complicit in some of the worst war crimes of the last few decades. It is astonishing that major Jewish organizations today are supporting immunity for the type of atrocities that only 70 years ago were committed against the Jews of Europe. American Jewish leaders should remember that, however important it is to protect Israel, we, as Jews, as Americans, and as human beings, have other responsibilities which cannot be ignored. n
Jacob Victor graduated from Harvard College in June 2009, and served as president of Harvard Students for Israel in 2008. He is currently working in Washington, D.C.