Republic of Iraq v. Beaty, et al.; Republic of Iraq, et al., v. Robert Simon, et al.

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Contents

[edit] Briefs and Documents

Docket: 07-1090; 08-539

Issue: Whether U.S. Courts have jurisdiction over Iraq in claims involving alleged misdeeds that occurred during Saddam Hussein’s regime.

Merit briefs

Amicus briefs

Oral Argument: Transcript

Opinion: REVERSED in an opinion by Justice Scalia

[edit] Pre-Argument Articles

[edit] Grant write-up

[edit] Argument Preview

Foreign states cannot normally be sued in U.S. courts. The Foreign Sovereign Immunities Act ("FSIA"), however, carves out several exceptions to this general rule, including one that permits lawsuits against state sponsors of terrorism "for personal injury or death that was caused by," among other things, torture and hostage-taking.

On Monday, in Nos. 07-1090 & 08-539, Republic of Iraq v. Beaty and Republic of Iraq v. Simon, the Court will consider whether U.S. courts have jurisdiction over Iraq for claims involving hostage-taking and torture that occurred during Saddam Hussein's regime.

[edit] Background

The Beaty case was brought by the children of Kenneth Beaty and William Barloon, U.S. citizens who were living in Kuwait after the Persian Gulf War ended in 1991. In April 1993, Beaty was detained by Iraqi border guards and taken to Baghdad, where for 205 days he lived in "squalid conditions" in Iraqi prisons, deprived of food, water, and medications for his heart conditions. In March 1995, Barloon was similarly detained by Iraqi border guards and taken to Baghdad, where for 126 days he was deprived of necessities such as food and water, beaten, and subjected to a "mock execution."

Beaty, Barloon, and their spouses (along with two other detainees and their spouses) successfully brought multi-million dollar suits against Iraq. In 2003, however, the children of Beaty and Barloon filed this case, seeking to recover damages for "mental anguish, pain and suffering during the period of their fathers' incarceration."

Simon is itself a consolidation of cases involving the hostage-taking of U.S. citizens prior to, during, and after the Persian Gulf War. The plaintiffs in Simon include Robert Simon, a CBS news reporter, and his cameraman, Roberto Alvarez. Both were kidnapped and tortured by Iraq in 1991. Also plaintiffs in the case are the estate and family of Nabil Seyam, an Arab-American who in 1990 was kidnapped and tortured by Iraqi forces while working in Kuwait.

In Beaty, the district court rejected Iraq's claim that "adjudication of plaintiffs' claims ‘would compromise critical U.S. foreign policy objectives,'" as well as its claims that the political question, act-of-state, and foreign affairs preemption doctrines rendered the case non-justiciable.

The court also considered Iraq's argument, supported by the United States in a Statement of Interest, that President Bush reinstated Iraq's sovereign immunity pursuant to the 2003 Emergency Wartime Supplemental Appropriations Act ("EWSAA"), which provided for, among other things, wartime funding and homeland security efforts. It also authorized the President to "make inapplicable with respect to Iraq" provisions of law that apply to countries that have supported terrorism. Shortly after EWSAA's passage, President Bush issued a determination that FSIA's terrorism exception no longer applied to Iraq. The issue, however, had already been decided in Acree, an earlier D.C. Circuit case holding that the language in EWSAA, read in context, was meant to make economic sanctions inapplicable to Iraq, rather than FSIA's exceptions to sovereign immunity. The district court in Simon reached similar conclusions, but dismissed the suits as untimely.

On appeal, the D.C. Circuit summarily affirmed the district court's opinion in Beaty. In Simon, the D.C. Circuit concluded that Simon and Seyam's complaints were timely filed and not barred by the political question doctrine. The court also considered the effect of the National Defense Authorization Act of 2008 ("NDAA"), which replaced FSIA's terrorism-exception to sovereign immunity with a slightly different version and gave the President the authority to waive that section as it applies to Iraq, which President Bush did shortly after its passage. The court concluded that the language of the NDAA left intact the court's jurisdiction over pending litigation, including Simon, under the original FSIA section.

[edit] Petition for Certiorari

The Republic of Iraq made essentially two arguments in support of certiorari in both cases. First, it argued that the case involved an issue of exceptional national and international importance in light of the U.S.'s "ongoing military operation with the purpose of supporting and strengthening the new democratic government of Iraq and the reconstruction of its country." Moreover, the suit not only "threatens Iraq's fundamental sovereignty," but might also implicate other pending cases involving over $1 billion in asserted liability.

Second, Iraq argued, the cases were erroneously decided. It emphasized the plain language of Section 1503 of the EWSAA, which in its view allowed the President to "make inapplicable with respect to Iraq . . . any other provision of law that applies to countries that have supported terrorism" - including the state-sponsored terrorism exception. Iraq relied heavily on a concurrence by then-Judge Roberts in Acree, in which he argued both that EWSAA granted the President the authority to restore sovereign immunity and that the President had properly exercised that authority.

In their brief in opposition to certiorari, the Simon plaintiffs strongly disputed Iraq's assertion that the case implicates U.S. and Iraqi foreign policy interests. They emphasized that thus far the possibility of lawsuits had not impaired U.S.-Iraqi relations, and that their claims (as well as others) would be too insignificant to pose any threat to Iraq's economic reconstruction. And in any event, the D.C. Circuit's decision in Acree -- holding that § 1503 of the EWSAA did not authorize the President to reinstate sovereign immunity for Iraq - was correct, and nothing that would undermine that holding had occurred in the interim.

In their brief in opposition, the Beaty plaintiffs also sought to downplay the significance of the case. Moreover, they argued, the National Defense Authorization Act for 2008 ("NDAA") explicitly provided that § 1503 of EWSAA "did not grant the President the authority to remove the jurisdiction of any court of the United States."

The Supreme Court asked the Solicitor General to file a brief expressing the views of the United States. In December 2008, the U.S. filed a brief urging the Court to grant certiorari. It explained that "the court of appeals has incorrectly resolved a question of exceptional importance to the foreign relations of the United States in a manner that overturns the considered judgment of the President under an express grant of authority by Congress."

[edit] Merits Briefing

In its brief on the merits, Iraq makes three main arguments. First, Iraq argues that the combination of § 1305 of EWSAA and the President's determination under that section render the state-sponsored terrorism exception to FSIA inapplicable to Iraq. According to Iraq, the statute's plain language - which authorizes the President to make inapplicable with respect to Iraq "any other provision of law that applies to countries that have supported terrorism" - explicitly allowed President Bush to reinstate Iraq's sovereign immunity. Moreover, although the Court need not look to the history and context of EWSAA, that history further indicates that the powers of EWSAA were meant to be construed broadly. Iraq dismissed a section in the 2008 NDAA - which provided that nothing in the EWSAA "has ever authorized . . . the removal of the jurisdiction of any court of the United States" - as "an ineffective, after the-fact effort to manufacture ‘history' for an expired law"; it did not, Iraq contended, affect President Bush's 2003 determination that Section 1605(a)(7) did not apply to Iraq, as post-enactment history is not a reliable basis for inferring the intent behind a statute. Moreover, the President vetoed the first formulation of the NDAA, and then explicitly refused to sign any bill until he was given the authority to waive the sections in the NDAA that implicate Iraq's sovereign immunity.

Second, Iraq argues that it is in any event immune from suit based on the enactment of Section 1083 of the NDAA, which replaced the original statute under which plaintiffs brought suit, and authorized the President to waive the new section as it applied to Iraq. The NDAA, Iraq contends, "expressly repealed" the earlier state-sponsored terrorism exception to sovereign immunity, replacing it with a new provision that applies to all pending cases, and "the President then waived its replacement as to Iraq."

Third and finally, Iraq repeats its argument that the case "cannot be divorced from the foreign policy concerns that underlie it," as outlined in its petition for certiorari.

The United States filed an amicus brief at the merits stage. In that brief, its EWSAA arguments in large part support Iraq's. First, the United States argues that the plain language of the EWSAA grants authority to the President to render Section 1605(a)(7) inapplicable to Iraq. Even if the statute were ambiguous, however, the President's reasonable construction "is entitled to great deference." "Because Congress entrusted the implementation of Section 1503 [of EWSAA] to the President, and because the President has independent constitutional authority in the area of foreign affairs," the United States argues, President Bush's determination should carry great weight.

Unlike Iraq, however, the United States regards the NDAA as having "no effect on the proper resolution of this case" because the President "categorically waived its application to Iraq." But to the extent that the Court does find the NDAA relevant, the better construction "is that it does not deprive the courts of jurisdiction over suits brought pursuant to the exception to immunity in Section 1605(a)(7) before the NDAA's enactment." The U.S. explains that when Congress enacted the NDAA, "it was understood that the President would exercise his waiver authority . . . and claims against Iraq would be left in the same position as before" the NDAA passed.

In their briefs on the merits, respondents Simon and Beaty make similar arguments. Simon first argues that his interpretation of EWSAA § 1503 - viz., that it did not give the President authority to repeal jurisdiction under Section 1605(a)(7) - is superior. When read literally, Simon explains, Section 1503 is "absurdly vague," including in its application "all statutes of general application (state law, federal law, and treaties) which happen to affect countries which have supported terrorism." Instead, Simon contends, the scope of the second proviso, providing that the President may make inapplicable to Iraq provisions of law that apply to countries that have supported terrorism, is limited to the only statute specifically identified in the proviso: Section 620A(a) of the Foreign Aid Act of 1961.

Addressing Iraq's argument that the NDAA and the President's waiver under it with regard to Iraq repeal jurisdiction for his case, Simon emphasizes that the text of the NDAA specifically limits it to claims arising under the newly enacted Section 1605A; it does not extend to Section 1605(a)(7), under which his case and the Beaty case was filed.

The Beaty merits brief makes the additional point that because the relevant provisions in EWSAA and the NDAA did not include a clear directive from Congress that they apply retroactively, they cannot retroactively divest the federal courts of jurisdiction over his lawsuit against Iraq. Moreover, because the President waived all provisions of NDAA towards Iraq, the repeal of Section 1605(a)(7) does not apply to the respondents' pending cases.

Finally, Simon argues that public policy, including the policy of compensating victims and their families, and well-settled principles of international law support the conclusion that FSIA sovereign immunity exceptions should not be waived, even after a regime change in Iraq.

[edit] Oral Argument Recap

Jonathan Franklin, representing the Republic of Iraq, received relatively few questions from the Court. He began with Iraq’s main theory of the case: that President Bush validly made Section 1605(a)(7) inapplicable to Iraq, thus depriving plaintiffs jurisdiction to proceed with the suit, and pushed back against small inroads in the theory from Justices Ginsburg and Alito. In particular, Justice Ginsburg pressed Franklin to provide an example of a statute in which Congress stripped U.S. courts of jurisdiction without announcing its intention to do so.

The United States, represented by Douglas Hallward-Driemeier, made an argument similar to Iraq’s, contending that Section 1503 of the EWSAA allowed the President to make exceptions to laws that applied to state-sponsored terrorism, and the state-sponsored terrorism exception to sovereign immunity falls precisely in that category. But even if one accepts the D.C. Circuit’s “atextual” reading of the statute in Acree, Hallward-Driemeier continued, that Section 1503 only dealt with statutes that stood as an obstacle to funding a post-war Iraq, sovereign immunity would be included, as lawsuits could draw billions of dollars from Iraq’s coffers.

Justice Ginsburg seemed interested in the practical effect of a holding against Iraq - whether creditors could actually collect against Iraq’s assets. And the Chief Justice focused on whether there would be jurisdiction for the suit absent Bush’s EWSAA waiver. Justice Ginsburg challenged the notion that the Court should defer to the President in this case, given that Congress through FSIA specifically limited his powers in this area.

Arguing for the respondents, Thomas Goldstein argued that the EWSAA gave the President the power to rescind Iraq’s designation of a terrorist state, as opposed a stronger power (such as writing “except for Iraq” into 1605(a)(7)). Because changing designation doesn’t affect Iraq’s liability for past terrorist acts, the current case should be able to proceed.

Justices Souter and Kennedy, as well as the Chief Justice, pressed Goldstein on Congress’s reasons for making such a fine distinction. Goldstein explained that Congress would make that distinction because when the EWSAA was passed, it was only days after the fall of the Iraqi government, and the President needed to immediately rescind certain sanctions provisions as they pertained to Iraq. Under the existing statutory scheme, however, the President would not be authorized to do that until Iraq was recognized as a country, nearly a year later. EWSAA was meant to address the immediate and short-term economic health of Iraq.

Justices Scalia, Souter, Stevens, and Breyer then questioned Goldstein on why Congress would choose to use the word “any” in the EWSAA if it did not mean it to apply to literally any statute, including jurisdictional statutes. After a back-and-forth with Justice Breyer, Goldstein admitted that the only statutes not covered in the EWSAA under his interpretation are the one at issue in the case, and the sale of military hardware to Iraq.

And Justice Ginsburg expressed concern that, if the Court holds for the respondents, any country would be able to sue the United States in their courts.

Goldstein finished by arguing that it would make no sense for Congress to have intended to give Iraq permanent immunity, as the EWSAA under petitioner’s view grants the President the authority to exempt Iraq from immunity, but not the power to rescind that exemption.

Franklin began his rebuttal responding to the charge that Iraq’s state-sponsored terrorism waiver would be permanent, and asserted that the United States may at a later point reinstate the ability to sue Iraq. He also argued that Congress knew how to make exception to the President’s authority in EWSAA, and did so explicitly with military hardware in Proviso 3. That it chose not to make such an exemption for sovereign immunity is proof that the President should therefore acted with authority in making 1605(a)(7) inapplicable to Iraq.

[edit] Opinion Analysis

In a unanimous decision authored by Justice Scalia, the Court held that Iraq is immune from suit in federal court. President Bush acted within the authority granted to him under § 1503 of the EWSAA when he made the statute waiving Iraq’s sovereign immunity inapplicable to Iraq.

The proviso in the EWSAA that allows the President to “make inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism” enabled him to make inapplicable to Iraq § 1605(a)(7) of FSIA. The word “any” in the proviso has an expansive meaning, which the Court cannot construe to exclude § 1605(a)(7).

The D.C. Circuit’s reading of the proviso in Acree, the Court explained, was flawed. The Acree court reasoned that because the principal clause of § 1503 of the EWSAA dealt with the Iraq Sanctions Act, “any other provision of law” must apply only to that Act. Provisos, the Court explained, can be used to introduce independent legislation, which is what Congress intended to do with that proviso. Even if Congress never intended specifically for the proviso to apply to the FSIA, the value of the broad phrasing was that it can serve as a catchall for all matters that Congress did not contemplate.

The Court rejected as “absurd” a reading of the proviso that allows the President to make inapplicable to Iraq § 620A of the Foreign Assistance Act and all the statutes cited therein. Such a reading conflicts not only with a plain reading of the text, but also with the policy goals Congress intended to further in the EWSAA – the statutes cited in § 620A are beneficial to Iraq, and waiving them would only damage it.

Nor, in the Court’s view, did the subsequent NDAA legislation change any of the above analysis. While the statute seemed to ratify Acree, it also allowed the President to “waive any provision of this section with respect to Iraq,” which he did.

The Court also rejected the plaintiffs’ argument that, even if the President waived the FSIA as it applied to Iraq, it does not bar their claims which arise from Iraq’s conduct prior to the waiver. The word “inapplicable” in the proviso, the Court explained, indicates that the exception can no longer be applied – i.e., serve as a basis for jurisdiction. Moreover, Iraq’s conduct that formed the basis of the suits occurred before the FSIA exception, so the waiver could not have deprived the plaintiffs of any expectation they held at the time of their injury that they would be able to sue Iraq.

Finally, the sunset clause in the EWSAA only deprived the President of the authority to make inapplicable specific laws after the sunset date, but the effect of the valid exercise of his authority before the sunset date lasts beyond the sunsetting of the statute.

[edit] Links and further information

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