The World in U.S. Courts: Fall 2015 - Alien Tort Statute (ATS)/Foreign Sovereign Immunity Act (FSIA)
Dr. Abdul Rahman Al-Swailem, a defendant in the vast multi-district litigation arising from the September 11 terrorist attacks, sought dismissal from the case on grounds that he enjoyed common-law sovereign immunity because the acts he is alleged to have committed were taken as president of two Saudi Arabian entities that are "instrumentalities" of the Saudi Arabian Government, and that are described by the Saudi government as "humanitarian relief organizations."
As a preliminary matter, the Court confirmed that the FSIA was not available because it does not apply to protect individuals. Passage of that statute, however, did not eliminate sovereign immunity that previously existed under common-law. As a procedural matter, the Court noted that Al-Swailem could have sought a determination of immunity by the U.S. State Department and had not done so, but it ruled that option to be discretionary. Absent such a U.S. Government determination, the Court stated it would decide for itself whether "the ground of immunity is one which it is the established policy of the [State department] to recognize." Here, the Court determined that the Government would grant "conduct-based immunity" for acts by officials of instrumentalities of non-U.S. governments in their official capacities. It concluded that test would be satisfied because the Saudi ambassador to the U.S. made a filing with the Court requesting that immunity be granted, and stating that Al-Swailem was a Saudi government official whose alleged conduct was undertaken "as an official of the Saudi government." Because the Saudi representations were sufficient under established State Department policy for granting common-law immunity, the Court dismissed Al-Swailem from the case. In so doing it observed that the U.S. Court of Appeals for Second Circuit, in which the Court sits, previously rejected the argument advanced by the plaintiffs that common-law immunity is unavailable to individuals alleged to have violated fundamental international norms of conduct.