No. 12-1078
IN THE Supreme Court of the United States
MOHAMED ALI SAMANTAR, Petitioner, v. BASHE ABDI YOUSUF, ET AL., Respondents.
On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit
SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI
SHAY DVORETZKY Counsel of Record MICHAEL A. CARVIN PAUL V. LETTOW RICHARD M. RE JONES DAY 51 Louisiana Ave. NW Washington, DC 20001 [email protected]
(202) 879-3939
Counsel for Petitioner January 7, 2014
SUPPLEMENTAL BRIEF FOR PETITIONER Petitioner submits this supplemental brief to address Respondents’ letter of December 30, 2013, and the Solicitor General’s response to that letter on January 6, 2014. On December 30, Respondents submitted to the Court a letter from Professor Abukar Hassan Ahmed. Professor Ahmed held himself out as a Legal Adviser to the Somali President, and purported to rescind the Somali Prime Minister’s request for immunity for Petitioner. Professor Ahmed is also a plaintiff in another case against a former Somali official, in which he has been represented by Respondents’ counsel. See Dkt. Nos. 5, 6, 7, 22, 24, 35, 39, 97, & 101, Ahmed v. Magan, No. 2:10-cv-00342 (S.D. Ohio). The Court should ignore this most recent eleventh- hour attempt to deflect attention from the certworthy issue presented by this case. First, the Somali President, Hassan Sheikh Mohamoud, swiftly renounced Professor Ahmed’s letter. Within days, he “instructed” his Chief of Staff “to communicate officially” with the United States that Professor Ahmed’s “letter to the US Secretary of State is null and void.” App. 2a (e-mail from Kamal Hassan, Chief of Staff to the Somali President, to Gamal M. Hassan, U.S. Embassy, Nairobi, Kenya, Jan. 2, 2014). Indeed, the Solicitor General acknowledges “further communications” between Somalia and the United States following Professor Ahmed’s letter, while withholding from the Court that those communications repudiated Professor Ahmed’s letter. See Letter from Donald B. Verrilli, Jr. to Scott S. Harris, Jan. 6, 2014, at 1. In addition, the Somali Government subsequently sent the United States a formal diplomatic letter, 2 which sought to further “clarif[y]” “any confusion caused by Professor Ahmed’s erroneous and unauthorized letter.” App. 5a (Letter from Kamal D. Hassan, Chief of Staff to the Somali President, to James P. McAnulty, Special Representative for Somalia, U.S. Embassy, Nairobi, Kenya, Jan. 7, 2014). Professor Ahmed—who is “no longer a Legal Adviser to the President”—“was in no way authorized to represent the views of Somalia about immunity for” Petitioner. Id. at 4a. Thus, “the position of the Federal Government of Somalia has not changed”: Petitioner should be immune from suit because “his acts in question were all undertaken in his official capacity with the Government of Somalia.” Id. at 4a- 5a. Professor Ahmed’s unauthorized letter does not speak for Somalia’s President or its Government. Second, the Somali Prime Minister is “the Head of the Federal Government” and is responsible for “formulat[ing] the overall government policy and implement[ing] it.” See Provisional Constitution, Fed. Rep. of Somalia, Arts. 97, 100, available at http://unpos.unmissions.org/LinkClick.aspx?fileticket =RkJTOSpoMME=. That is why the Prime Minister himself—not one of the President’s purported Legal Advisers—requested immunity for Petitioner in the first place. Pet. App. 70a-75a. The Somali President, who appointed Somalia’s new Prime Minister, see Provisional Constitution, Art. 90(d), has “adopt[ed] and ratif[ied]” the former Prime Minister’s request “in full.” App. 4a. There is thus no reason to believe—and every reason to doubt—that the new Prime Minister would take a different view than his predecessor of Petitioner’s immunity. Third, the Fourth Circuit’s per se rule of non- immunity for jus cogens violations turned on pure 3 questions of law—not on any facts about the Somali government or its view of immunity. See, e.g., Petr. Supp. Br. Dec, 23, 2013, at 6. To the extent that Somalia’s view of Petitioner’s immunity is relevant, it can be assessed by the lower courts on remand, under the correct legal standard as articulated by this Court. Respondents’ desperate attempt to obfuscate Somalia’s position should not lead the Court to leave in place a categorical non-immunity rule that has divided the circuits and that presents a question of great national importance. Nor has the Solicitor General given the Court any reason to GVR. In its supplemental letter, the Government continues to grasp for any excuse to avoid plenary review. The Government asks for more time for “discussions” with the Somali Prime Minister, which may lead to “any further determination by the United States with respect to immunity . . . .” Govt. Letter, Jan. 6, 2014, at 1. But foreign political leaders will be replaced in the course of almost all litigation involving immunity determinations. Pure speculation about a change in a foreign government’s position each time there is a change in leadership cannot justify bypassing review of legal issues that are independent of the foreign government’s position. If the United States needs more time for discussions and theoretical future determinations, it will have that opportunity while this Court reviews the Fourth Circuit’s per se rule (which did not turn on Somali-specific facts or the views of the United States), or in the course of any subsequent remand. CONCLUSION The petition for certiorari should be granted.
4
Respectfully submitted,
SHAY DVORETZKY Counsel of Record MICHAEL A. CARVIN PAUL V. LETTOW RICHARD M. RE JONES DAY 51 Louisiana Ave. NW Washington, DC 20001 [email protected]
(202) 879-3939
Counsel for Petitioner January 7, 2014
APPENDIX 1a
APPENDIX A1
From: Zahra Samantar
Shay and Joseph, this is the email that was sent to the embassy.
------Forwarded message ------From: Mohamud Hersi Abdulle
Dear Zahra,
1 The email chain reproduced below was sent first by Kamal Hassan, the Chief of Staff to the Somali President, to Gamal M. Hassan, an official at the American Embassy in Nairobi, Kenya, which handles Somali affairs. It was then forwarded by Kamal Hassan to Mohamud Hersi Abdulle, the Chief of Staff to the new Somali Prime Minister, Abdiweli Sheikh Ahmed. Mr. Abdulle, in turn, forwarded the email to Zahra Samantar, Petitioner’s daughter, who sent it to Petitioner’s counsel. 2a
below is an email sent to MR. Gamal at the US Embassy in Nairobi. I received this email from the Chief of Staff at the Office of the President Mr. Kamal Hassan. Thanks
Mohamoud Abdulle ------Forwarded message ------From: Kamal Hassan
FYI
Sent from my iPad
Begin forwarded message:
From: Kamal Hassan
Dear Gamal,
The letter that our legal advisor has written to the US Secretary of State is null and void and I've consulted the President which he instructed me to communicate officially with you on those lines. Let us talk. 3a
Thanks
Sent from my iPad 4a
APPENDIX B
January 07, 2014
James P. McAnulty Special Representative for Somalia, U.S. Embassy—Somalia Section Nairobi—Kenya
Dear Ambassador:
The Office of the President of the Federal Republic of Somalia presents its compliments to the Embassy of the United States of America, Somalia Section and have the distinct honor and high privilege of writing to on behalf of the Federal Government of Somalia. I write regarding the unfortunate letter of December 28, 2013 sent to you by Professor Abukar Hassan Ahmed. Professor Ahmed is no longer a Legal Adviser to the President and his communication to you on that letter is considered as null and void. He was in no way authorized to represent the views of Somalia about immunity for Mohamed Ali Samantar, the former First Vice President of Somalia, Prime Minister, and Defense Minister, in the matter of Bashe Abdi Yousuf, et al. v. Mohamed Ali Samantar, Civil Action N. 04-1360 (United States District Court for the Eastern District of Virginia). I write to reaffirm that the position of the Federal Government of Somalia has not changed from the letter sent to you on February 26, 2013 by former Prime Minister Abdi Farah Shirdon. We adopt and ratify his letter in full. As stated in that letter, the 5a
Federal Republic of Somalia affirms and ratifies Mr. Samantar’s plea of common law immunity from suit, finding that his acts in question were all undertaken in his official capacity with the Government of Somalia. I wish to stress the critical importance of this request and our deep appreciation for the prompt attention of the Department of State. I regret any confusion caused by Professor Ahmed’s erroneous and unauthorized letter.
Respectfully yours,
/s/ Kamal D. Hassan Kamal D. Hassan Chief of Staff cc: Office of East African Affairs Somalia Desk Office United States Department of State 2201 “C” Street, NW — Room 5238 Washington, DC 20523 United States of America
Joseph Peter Drennan, Esq., Counsel for Mohamed Ali Samantar Shay Dvoretzky, Esq., Supreme Court Counsel for Mohamed Ali Samantar