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36 Yale J. Int'l L. Online 1 (2010-2011)

handle is hein.journals/yejloillwo36 and id is 1 raw text is: THE YALE JOURNAL OF INTERNATIONAL LAW ONLINE Officially Immune? A Response to Bradley and Goldsmith Chimene I. Keitnert It is often tempting to read statutes the way one thinks they ought to have been written. This impulse, though understandable, can create more problems than it solves. Such is the case with applying the Foreign Sovereign Immunities Act of 1976 (FSIA)1 to suits against current and former foreign officials, as Curt Bradley and Jack Goldsmith have recently proposed.2 Bradley and Goldsmith argue that the FSIA's grant of immunity to a foreign state3 should be read to include current and former foreign officials for actions taken in their official capacity. 4 Under their interpretation, official capacity actions would include human rights abuses and other violations of international law that require state action,5 such as the alleged torture and t Associate Professor of Law, University of California, Hastings College of the Law. I represented amici Professors of Public International Law and Comparative Law in Support of Respondents in Samantar v. Yousuf, No. 08-1555 (U.S. argued Mar. 3, 2010). 1. Pub. L. No. 94-583, 90 Stat. 2891 (codified as amended at 28 U.S.C. §§ 1330, 1602-1611 (2006)). 2. Curtis A. Bradley & Jack L. Goldsmith, Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation, 13 GREEN BAG 2D 9 (2009) [hereinafter Bradley & Goldsmith, Foreign Sovereign Immunity]. 3. 28 U.S.C. § 1604 (2006). 4. Bradley & Goldsmith, Foreign Sovereign Immunity, supra note 2, at 13. 5. Id. at 10. Bradley and Goldsmith use a number of terms to refer to suits they believe should come within the scope of the FSIA, including suits for abuses committed ... under color of state law, id. at 9, suits for official acts, id. at 12, suits for actions carried out on behalf of the state, id. at 13, official capacity suits, id. at 15, and suits against individual state officers who act in an official capacity, id. at 16. However, even if certain official acts are deemed to fall within the scope of the FSIA, it is not self-evident that acts that violate international law, or the foreign state's own law, can constitute official acts for immunity purposes. See, e.g., Brief of Dolly Fildrtiga et al. as Amici Curae Supporting Respondents at 18, Samantar v. Yousuf, No. 08-1555 (U.S. argued Mar. 3, 2010) (positing that a court must determine, first, what authority a state has actually granted to an official and, second, what authority domestic and international law permit a state to grant lawfully to an official).