The Stanford clinic previews today’s argument in Republic of Iraq v. Beaty. Please note that Tom Goldstein represents the respondents and will argue today at 10 a.m. The briefs for the case can be found at the SCOTUSWiki page here.

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.

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.

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.”

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.

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