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the Biden administration decreed that Saudi Arabian Crown Prince and Prime Minister Mohammed bin Salman was immune from a pending civil suit for damages in federal court under the Torture Victim Protection Act for allegedly ordering the grisly assassination of journalist Jamal Khashoggi. That shocking decree should be a wake-up call to Congress to amend the act to cure its unconstitutional crippling by the executive and judicial branches.
The statute was enacted in 1992 to make the United States a “shining city on a hill” in defense of human rights. It creates a civil damages remedy in United States courts against individuals for the universal human rights crimes of extrajudicial killings or torture under the color of foreign law. The United States Court of Appeals for the Second Circuit explained in Filartiga v. Pena-Irala: “For purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind.”
The Torture Victim Protection Act text leaves no room for smuggling in immunities for heads of state or otherwise. It reaches any “individual” acting under the color of foreign law. The prime target of the act is heads of state. They are uniquely endowed with the power to perpetuate industrial-scale torture or massacres.
The executive branch and the federal judiciary, however, have taken a wrecking ball to the act by concocting a sitting head of state immunity to enable the president to crucify human rights on a cross of national security foreign policy. The extralegal process is exemplified by the administration’s suggestion that bin Salman is immune from suit under the Torture Victim Protection Act as head of state for murdering Khashoggi — even though the crown prince was not yet prime minister when he allegedly ordered the assassination.
