The Shalom Center was invited to join in an Amicus (friend of the court) brief in the case of Yousuf v. Samantar, involving whether survivors of torture by other governments can, in the US, sue officials of those governments as provided in US law. We agreed to join in the Amicus brief, along with other religious groups, and submitted an explanation of our stake in supporting the argument on appeal. For our explanation, see below. First, the essence of the argument we support is this:
When Congress passed the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 note (2000), it intended to allow survivors of torture to sue former officials of foreign governments in U.S. courts, on the understanding that the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602-1611 (2000), would not bar suits against former officials accused of torture.
In a substantial line of cases, survivors of torture have fulfilled the purpose of this statutory scheme by using the TVPA to seek justice and hold their abusers to account—including perpetrators who were formerly government officials.
The District Court erred by disregarding Congressional intent and the line of cases that have served to fulfill that intent. Its logic would extend FSIA immunity to former officials and place undue weight on vaguely worded post hoc letters of authorization from foreign governments.
Such an approach would effectively eviscerate the TVPA. Indeed, it would permit a rogue regime to immunize the most heinous of former officials and thus deny justice to the very type of victim Congress passed the TVPA to protect, including U.S. missionaries, relief workers, and federal agents.
This is what we wrote: (It turned out hat the desired explanation was supposed to be just one paragraph from each group, so a very tightened condensation of this will be on the formal record, but I thought you might find the full explanation interesting.)
November 26, 2007
16 Kislev 5768
The Shalom Center was founded in 1983. It brings a prophetic voice to Jewish, multireligious, and American life in regard to issues of peace, justice, and healing of the earth. Its work is rooted in the teachings of Judaism as reinterpreted in every generation through the millennia.
Those roots go ultimately to the suffusion of all Jewish thought with memories of the liberation of ancient Israelites from slavery to Pharaoh, reinforced by the experience of oppression under the Babylonian Empire, Rome, the Inquisition, the Russian Tsars, the Nazi regime, and the Soviet system.
In most or all of these historical situations, oppression included the use of torture. From the earliest memories of Pharaoh's cruelty to the most recent examples, the Jewish experience has been that high officials of oppressive regimes were responsible for ordering the use of torture, and Judaism itself has from the earliest times tried to construct a legal system in which torture would be impossible and in which high officials would be accountable to the public. (See Deuteronomy 17: 14-21 for the earliest example of such a "constitution" limiting the powers of an Israelite king, to prevent his imposing "Mitzrayyim" -- the tight and narrow place of slavery like that of Egypt – upon his people.)
The most vivid effort to remind the community from generation to generation of the danger that oppressive regimes might use torture is the inclusion in the worship service of Yom Kippur – the most solemn and the best attended of Jewish holy days throughout the centuries – of a passage called in English "the Martyrology," in Hebrew "Eleh ezkerah" -- "This we will remember." It recites in excruciating detail the torture and execution of ten great rabbis by the Roman Empire, ordered by its high officials.
For all these cumulative reasons, The Shalom Center concludes that in a constitutional polity like that of the United States in which high officials are governed by laws that forbid the use of torture, it is equally necessary to apply laws governing our relations with other countries in such a way as to make actually enforceable our domestic and international laws against torture. Since our experience over the millennia teaches us that high officials are often responsible for the use of torture – not merely the particular functionary or employee who physically wields the rack, the waterboard, the burning cigarette, the electrodes, the gang-rape -- we must apply the process of law and justice to such officials.
We therefore support the argument of the amicus brief.
With hope for the blessings of tzedek and shalom – justice and peace –-
Rabbi Arthur Waskow, Director
The Shalom Center