* * * Petitioner Kingdom of Saudi Arabia owns and operates petitioner King Faisal Specialist Hospital in Riyadh, as well as petitioner Royspec Purchasing Services, the Hospital’s corporate purchasing agent in the United States. [Citation.] The Hospital Corporation of America, Ltd. (HCA), an independent corporation existing under the laws of the Cayman Islands, recruits Americans for employment at the Hospital under an agreement signed with Saudi Arabia in 1973. [Citation.]

In its recruitment effort, HCA placed an advertisement in a trade periodical seeking applications for a position as a monitoring systems engineer at the Hospital. The advertisement drew the attention of respondent Scott Nelson in September 1983, while Nelson was in the United States. After interviewing for the position in Saudi Arabia, Nelson returned to the United States, where he signed an employment contract with the Hospital, [citation], satisfied personnel processing requirements, and attended an orientation session that HCA conducted for Hospital employees. In the course of that program, HCA identified Royspec as the point of contact in the United States for family members who might wish to reach Nelson in an emergency. [Citation.]

In December 1983, Nelson went to Saudi Arabia and began work at the Hospital, monitoring all ‘‘facilities, equipment, utilities and maintenance systems to insure the safety of patients, hospital staff, and others.’’ [Citation.] He did his job without significant incident until March 1984, when he discovered safety defects in the Hospital’s oxygen and nitrous oxide lines that posed fire hazards and otherwise endangered patients’ lives. [Citation.] Over a period of several months, Nelson repeatedly advised Hospital officials of the safety defects and reported the defects to a Saudi Government commission as well. [Citation.] Hospital officials instructed Nelson to ignore the problems. [Citation.]

The Hospital’s response to Nelson’s reports changed, however, on September 27, 1984, when certain Hospital employees summoned him to the Hospital’s security office where agents of the Saudi Government arrested him. The agents transported Nelson to a jail cell, in which they ‘‘shackled, tortured and bea[t]’’ him, [citation], and kept him four days without food. [Citation.] Although Nelson did not understand Arabic, Government agents forced him to sign a statement written in that language, the content of which he did not know; a Hospital employee who was supposed to act as Nelson’s interpreter advised him to sign ‘‘anything’’ the agents gave him to avoid further beatings. [Citation.] Two days later, Government agents transferred Nelson to the Al Sijan Prison ‘‘to await trial on unknown charges.’’ [Citation.]

At the Prison, Nelson was confined in an overcrowded cell area infested with rats, where he had to fight other prisoners for food and from which he was taken only once a week for fresh air and exercise. [Citation.] Although police interrogators repeatedly questioned him in Arabic, [citation], Nelson did not learn the nature of the charges, if any, against him. [Citation.] For several days, the Saudi Government failed to advise Nelson’s family of his whereabouts, though a Saudi official eventually told Nelson’s wife, respondent Vivian Nelson, that he could arrange for her husband’s release if she provided sexual favors. [Citation.]

Although officials from the United States Embassy visited Nelson twice during his detention, they concluded that his allegations of Saudi mistreatment were ‘‘not credible’’ and made no protest to Saudi authorities. [Citation.] It was only at the personal request of a United States Senator that the Saudi Government released Nelson, 39 days after his arrest, on November 5, 1984. [Citation.] Seven days later, after failing to convince him to return to work at the Hospital, the Saudi Government allowed Nelson to leave the country. [Citation.]

In 1988, Nelson and his wife filed this action against petitioners in the United States District Court for the Southern District of Florida seeking damages for personal injury. * * *

The District Court dismissed for lack of subject-matter jurisdiction under the Foreign Sovereign Immunities Act of 1976, [citation]. It rejected the Nelsons’ argument that jurisdiction existed, under the first clause of §1605(a)(2), because the action was one ‘‘based upon a commercial activity’’ that petitioners had ‘‘carried on in the United States.’’ * * *

The Court of Appeals reversed. [Citation.] It concluded that Nelson’s recruitment and hiring were commercial activities of Saudi Arabia and the Hospital, carried on in the United States for purposes of the Act, [citation], and that the Nelsons’ action was ‘‘based upon’’ these activities within the meaning of the statute * * *. We now reverse.

The Foreign Sovereign Immunities Act ‘‘provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country.’’ [Citation.] Under the Act, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state. [Citations.]

Only one such exception is said to apply here. The first clause of §1605(a)(2) of the Act provides that a foreign state shall not be immune from the jurisdiction of United States courts in any case ‘‘in which the action is based upon a commercial activity carried on in the United States by the foreign state.’’ The Act defines such activity as ‘‘commercial activity carried on by such state and having substantial contact with the United States,’’ [citation], and provides that a commercial activity may be ‘‘either a regular course of commercial conduct or a particular commercial transaction or act,’’ the ‘‘commercial character of [which] shall be determined by reference to’’ its ‘‘nature,’’ rather than its ‘‘purpose.’’ [Citation.]

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We * * * observed that the statute ‘‘largely codifies the so-called ‘restrictive’ theory of foreign sovereign immunity first endorsed by the State Department in 1952.’’ [Citation.] We accordingly held that the meaning of ‘‘commercial’’ for purposes of the Act must be the meaning Congress understood the restrictive theory to require at the time it passed the statute. [Citation.]

Under the restrictive, as opposed to the ‘‘absolute,’’ theory of foreign sovereign immunity, a state is immune from the jurisdiction of foreign courts as to its sovereign or public acts ( jure imperii), but not as to those that are private or commercial in character ( jure gestionis). [Citations.] We explained in Weltover, [citation], that a state engages in commercial activity under the restrictive theory where it exercises ‘‘only those powers that can also be exercised by private citizens,’’ as distinct from those ‘‘powers peculiar to sovereigns.’’ Put differently, a foreign state engages in commercial activity for purposes of the restrictive theory only where it acts ‘‘in the manner of a private player within’’ the market. [Citation.]

* * * [W]hether a state acts ‘‘in the manner of’’ a private party is a question of behavior, not motivation: ‘‘[B]ecause the Act provides that the commercial character of an act is to be determined by reference to its ‘nature’ rather than its ‘purpose,’ the question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in ‘trade and traffic or commerce.’’’ * * *

* * * [T]he intentional conduct alleged here (the Saudi Government’s wrongful arrest, imprisonment, and torture of Nelson) could not qualify as commercial under the restrictive theory. The conduct boils down to abuse of the power of its police by the Saudi Government, and however monstrous such abuse undoubtedly may be, a foreign state’s exercise of the power of its police has long been understood for purposes of the restrictive theory as peculiarly sovereign in nature. [Citations.] Exercise of the powers of police and penal officers is not the sort of action by which private parties can engage in commerce. ‘‘[S]uch acts as legislation, or the expulsion of an alien, or a denial of justice, cannot be performed by an individual acting in his own name. They can be performed only by the state acting as such.’’ [Citation.]