Thursday September 17, 2015
By Larry O'Dell, Associated Press
RICHMOND, Va. — A key claim in a Somali farmer's lawsuit alleging torture at the hands of an ex-officer who now lives in Virginia must be allowed to stand, or the United States will become a safe haven for war criminals, the plaintiff's lawyer told a federal appeals court Wednesday.
An attorney for former Somali military officer Yusuf Abdi Ali, however, argued that the judge correctly applied a 2013 U.S. Supreme Court ruling in tossing out Alien Tort Statute claims against Ali.
The judge allowed Farhan Warfaa's claims under another law, the Torture Victim Protection Act, to move forward.
Warfaa claims in his lawsuit that Ali presided over his torture for three months in 1987 and 1988 and then shot him five times. According to the complaint, Ali left Warfaa for dead and ordered jail guards to bury him — but Warfaa, who survived, bribed the guards to free him. Ali moved to Canada in 1990 but was deported after his "gross human rights abuses" came to light, Warfaa says in court papers. Ali settled in northern Virginia in 1992.
Arguments before a three-judge panel of the 4th U.S. Circuit Court of Appeals focused on whether Ali's residency in the United States means he can be sued under the 1789 Alien Tort Statute. Warfaa's attorney, Tara Lee, said that since 1980 courts have allowed foreign residents to pursue claims under that law for atrocities committed outside the U.S.
The Supreme Court reined in the practice in 2013, ruling that a corporation could not be held liable for alleged human rights abuses on foreign soil. U.S. District Judge Leonie M. Brinkema dismissed Warfaa's Alien Tort Statute claim based on that decision.
Warfaa's attorney, Tara Lee, said the judge improperly failed to consider an exception that allows application of the statute when atrocities committed in other countries "touch and concern" the U.S.
"Courts must look at a broader range of facts than just the location of the injury," she said.
Judge Albert Diaz asked Lee what interest the U.S. has, other than the defendant's residency.
"The U.S. has a national interest, a strong national interest, in not becoming a safe harbor for the world's war criminals," Lee said.
Ali's attorney, Joseph Peter Drennan, argued that the only basis for the "touch and concern" exception is his client's residency — and that's not enough.
"Here, there is no nexus to the U.S.," Drennan said.
Robert Loeb, a former Justice Department official and an expert on the issue, said in a telephone interview that Warfaa's attorneys are overstating the ramifications of the appeals court's ruling, which is expected in a few weeks.
"I agree there has been a sea change, but it happened a year and a half ago" when the Supreme Court curbed the reach of the Alien Tort Statute, he said.
"And as far as making the U.S. a safe haven, you can still bring claims against people for torts in other countries," he said, citing the Torture Victim Protection Act as one avenue that expressly applies to human rights abuses in other countries.
Lee said in an interview that Warfaa still lives in the farming village in Somalia where he was abducted by the Somali National Army. She said Warfaa was told he was a suspect in the theft of a water tanker, but that was a pretext for interrogating him about whether he was sympathetic to rebel forces.
Drennan said his client vigorously denies any involvement in Warfaa's torture. Ali now works as a security guard.
"He's lived a blameless life," Drennan said after the hearing. "I don't think he's gotten so much as a parking ticket."