Against Conduct-Based Immunity for Torture Victim Protection Act Defendants

Abstract

On October 13, 2016, former Israeli Minister of Defense, Ehud Barak, was granted immunity and dismissed from a civil action alleging he violated the Torture Victim Protection Act of 1991 (TVPA) by authorizing the torture and extrajudicial killing of an American citizen. Both the government of Israel and the United States Department of State called on the court to grant federal common law foreign official immunity by arguing that Barak was protected from suit because he acted “in his official capacity.” The TVPA, however, permits legal action against foreign defendants who have acted in such a capacity—namely, “under actual or apparent authority, or color of law, of any foreign nation.” Nevertheless, the court determined that the TVPA did not abrogate federal common law immunity “where the sovereign state officially acknowledges and embraces the official’s acts,” allowing the court to also avoid the complicated question of whether the executive branch has the power to order a court to grant immunity. This article argues that the text and legislative history of the TVPA prohibit federal common law conduct-based immunity. First, the mere assertion that a TVPA defendant acted “in his official capacity” is not sufficient to dismiss allegations of torture or extrajudicial killing because the TVPA requires such capacity as a prerequisite to liability. Second, the Act’s legislative history, which directs federal courts to look to 42 U.S.C. § 1983 actions for guidance regarding the immunities available to TVPA defendants, demonstrates Congress’ intent to allow government officials to be held personally liable for acts undertaken in an official capacity—regardless of a foreign state’s acknowledgment or embracement. Finally, while federal courts have an interest in avoiding conflict with the executive branch in cases involving foreign affairs, the executive branch lacks the power to mandate conduct-based foreign official immunity—especially when, as here, the executive branch asserts an incorrect interpretation of federal law.