Iraq v. Beaty (07-1090); Iraq v. Simon (08-539)

Oral argument: Apr. 20, 2009

Appealed from: United States Court of Appeals for the District of Columbia Circuit (Nov. 21, 2007; June 24, 2008)

FOREIGN SOVEREIGN IMMUNITIES ACT ("FSIA"), SOVEREIGN IMMUNITY, STATE SPONSOR OF TERRORISM, POLITICAL QUESTIONS DOCTRINE, IRAQ, SADDAM HUSSEIN

The Foreign Sovereign Immunities Act ("FSIA") prevents foreign governments from being sued in courts of the United States. 28 U.S.C. § 1605(a)(7) creates an exception that allows US courts to hear cases involving foreign governments that sponsor terrorism. Alleged victims of Saddam Hussein's regime sued the current Iraqi government in federal court under this exception. However, due to the Emergency Wartime Supplemental Appropriations Act of 2003 ("EWSAA"), and the National Defense Authorization Act for Fiscal Year 2008 ("NDAA"), the issue of whether U.S. courts have subject-matter jurisdiction over those claims has come into question. Iraq argues that both the EWSAA and the NDAA make § 1605(a)(7)'s exception to sovereign immunity inapplicable to them. In both cases, the United States Court of Appeals for the District of Columbia ruled that in spite of the EWSAA and the NDAA, U.S. courts maintain subject-matter jurisdiction to hear claims brought against Saddam Hussein's regime. Iraq appealed both decisions, and the Supreme Court granted certiorari. The Supreme Court's decision will determine whether victims of Saddam Hussein's government may sue the current Iraqi government in U.S. courts. The outcome of this case will impact U.S.-Iraqi relations, U.S. efforts to rebuild and support the current Iraqi government, and the ability of victims of Saddam Hussein's regime to sue the current Iraqi government.

Questions presented

Iraq v. Beaty (07-1090)

Whether the Republic of Iraq possesses sovereign immunity from the jurisdiction of the courts of the United States in cases involving alleged misdeeds of the Saddam Hussein regime and predicated on the exception to immunity in former 28 U.S.C. § 1605(a)(7).

Iraq v. Simon (08-539)

Whether the Republic of Iraq possesses sovereign immunity from the jurisdiction of the courts of the United States in cases involving alleged misdeeds of the Saddam Hussein regime predicated on the now repealed state sponsor of terrorism subject matter exception to immunity of former 28 U.S.C. § 1605(a)(7).

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Issue

Whether U.S. courts have jurisdiction over the Republic of Iraq in cases involving the alleged misdeeds, including torture and hostage taking, by Saddam Hussein's regime, or whether Iraq is immune from prosecution.

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Facts

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

Robert Simon ("Simon"), a news reporter for CBS News, was one of several American citizens in Kuwait and Iraq immediately following Iraq's invasion of Kuwait in 1990. See Vine v. Republic of Iraq, 459 F. Supp. 2d 10, 14 (D.D.C. 2006). Following the invasion, Saddam Hussein prevented Americans from leaving Kuwait and Iraq, rounded them up, and relocated them to strategic sites to act as "human shields." See id. at 14. The United States repeatedly called for the release of the hostages, and Hussein eventually did so in December 1990. See id. at 15. In 2003, Simon sued the Iraqi government in the United States District Court for the District of Columbia ("D.D.C."), alleging that the Iraqi government had illegally seized and tortured him and CBS cameraman Robert Alvarez. See id.

Simon relied upon 28 U.S.C. § 1605(a)(7) of the Foreign Sovereign Immunities Act ("FSIA"), an exception to the sovereign immunity typically enjoyed by foreign states, which allows U.S. nationals to sue foreign governments that sponsor terrorism in U.S. courts. See Simon v. Republic of Iraq, 529 F.3d 1187, 1188 (D.C. Cir. 2008). This exception applied to Iraq because the U.S. Department of State declared Iraq a "terrorist state" in September of 1990. See Vine, 459 F. Supp 2d at 15. Iraq moved to dismiss the claims on the grounds that the claims were non-justiciable political questions, that the statute of limitations had passed on the claims, and that the plaintiffs failed to state a cause of action. See id. at 17-28. The D.D.C. dismissed Simon's claim on the basis that the statute of limitations on Simon's claim had expired, and Simon appealed. See Simon, 529 F.3d at 1188.

During Simon's appeal, Congress passed the National Defense Authorization Act for Fiscal Year 2008 ("NDAA"). See Simon, 529 F.3d at 1188. The NDAA contained provisions that authorized the executive to make § 1605(a)(7)'s exception to foreign sovereign immunity inapplicable to Iraq. See Pub. L. No. 110-181, § 1083, 122 Stat. 3. Following the passage of the NDAA, President George W. Bush immediately exercised that power, reinstating Iraq's sovereign immunity. See Simon, 529 F.3d at 1190. Following the passage of the NDAA and Bush's action, Iraq moved to dismiss, arguing that the NDAA and Bush's subsequent action destroyed the basis upon which the subject-matter jurisdiction of the court was founded. See id. at 1190-1191. On appeal, the U.S. Court of Appeals for the D.C. Circuit held that the NDAA allowed U.S. courts to maintain subject-matter jurisdiction over cases against the current Iraqi government for acts committed by Saddam Hussein's government that were brought before Congress enacted the NDAA. See id. at 1190-1194.

Republic of Iraq, et al., v. Jordan Beaty, et al.

The Iraqi government allegedly detained and held hostage Jordan Beaty ("Beaty") and William Barloon ("Barloon") during the 1990s. See Beaty v. Republic of Iraq, 480 F. Supp 2d 60, 62 (D.D.C. 2007). The children of Beaty and Barloon sued the Iraqi government in February 2003 in the D.D.C., seeking money damages for the emotional distress they suffered during the detainment of their fathers. See id. at 64. Iraq filed a motion to dismiss, arguing that that the plaintiffs failed to state a cause of action, that the court did not have subject-matter jurisdiction over the case, and that the case involved a political question and was therefore not justiciable. See id. at 62. Iraq argued that the Emergency Wartime Supplemental Appropriations Act of 2003 ("EWSAA") in conjunction with Presidential Determination 2003-23 on May 7, 2003, restored Iraq's sovereign immunity. See id. at 69-86. The EWSAA, among other things, authorized the President to "make inapplicable with respect to Iraq . . . any other provision of law that applies to countries that have supported terrorism." See Pub. L. No. 108-11, § 1503, 117 Stat. 559, at 579 (2003). President George W. Bush exercised that power on May 7, 2003, thus effectively restoring Iraq's sovereign immunity from suits brought in U.S. courts. See Beaty, 480 F. Supp 2d at 64-65.

The court denied Iraq's motion to dismiss, ruling that the case did not involve a political question and that allowing the case to proceed would not adversely affect U.S. foreign policy. See Beaty, 480 F. Supp 2d at 70-90. The court further ruled that the EWSAA does not "alter the jurisdiction of the federal courts under the FISA." See id. at 69 (citing Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004)). Iraq appealed, and the United States Court of Appeals for the District of Columbia Circuit affirmed the district court's ruling. See id. at 104.

Iraq appealed, filing its petition for a writ of certiorari on February 19, 2008. The Supreme Court granted certiorari on January 9, 2009, and consolidated this case with Iraq v. Simon. See Docket for 07-1090.

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Discussion

The issue in these consolidated cases is whether victims of alleged misdeeds of Hussein's regime may sue Iraq in U.S. courts under 28 U.S.C. § 1605(a)(7), which abrogates the sovereign immunity of states that sponsor terrorism. A decision in favor of the petitioners, the Republic of Iraq, et al. ("Iraq"), will mean that § 1605 does not abrogate the sovereign immunity of the current Iraqi government and that victims of alleged misdeeds of Hussein's regime will no longer be able to sue Iraq in courts of the United States. On the other hand, a decision in favor of the respondents, Robert Simon and Kevin Beaty, will mean that victims of alleged misdeeds of Hussein's regime will be able to sue the current Iraqi government under the exception to state sovereign immunity created by § 1605(a)(7). The outcome of this case will impact the executive's authority to determine which foreign states will be protected by the doctrine of sovereign immunity, trigger possible international law concerns, and most importantly, affect U.S.-Iraqi relations and current U.S. efforts to reconstruct Iraq.

First, the outcome of this issue will determine the executive's authority to determine which foreign states should be protected by the doctrine of sovereign immunity. Simon argues that a decision in favor of Iraq would give the executive too much power to determine whether foreign governments will enjoy sovereign immunity in U.S. courts. See Brief for Respondents, Robert Simon, et al. ("Simon") at 52. Simon also believes that courts should read the Foreign Sovereign Immunities Act ("FSIA") narrowly, and that the FSIA should be viewed as a restraint on the executive's power to grant sovereign immunity to foreign governments. See id. On the other hand, Iraq argues that a decision in favor of Simon and Beaty will create a situation in which the executive would be unable to determine which foreign governments are protected by sovereign immunity and thereby would weaken the executive's ability to effectively formulate and carry out foreign policy. See Brief for Petitioners, Republic of Iraq, et al. ("Iraq") at 50-51.

In addition, Simon argues that a decision in favor of Iraq may place the United States in a position in which it will violate several tenets of international law. See Brief for Simon at 53-54. For one, shielding the current Iraqi government from liability for actions of Hussein's regime would violate "the fundamental principle of international law that a state's liability is not erased by changes in government." See id. Additionally, absolving the current Iraqi government from the acts of Hussein's regime may also conflict with articles of the Geneva Convention governing the treatment of civilians during times of war and the treatment of nation-states that torture POWs during war. See id. at 54.

Most importantly, the outcome of this case will impact U.S.-Iraq relations and the current war in Iraq. Both parties believe that an adverse ruling will impact the relationship between the two countries negatively. Simon argues that it is only fair that American citizens victimized by Hussein's regime enjoy some legal recourse in U.S. courts, especially in light of the fact that, since 2003, Iraqis injured by military contractors and U.S. soldiers have been able to advance claims seeking compensation. See Brief for Simon at 55-56.

On the other hand, Iraq is concerned that if Americans are allowed to sue the current Iraqi government in U.S. courts, Iraqis may wish to sue the United States in Iraqi courts for alleged misdeeds caused by U.S. soldiers and military contractors. See Brief for Iraq at 52. The relationship between the two nations may be damaged if U.S. plaintiffs may sue the current Iraqi government, while Iraqis may not sue the United States government on reciprocal claims. See id. at 53-54. In addition, abrogating the sovereign immunity of the current Iraqi government may damage the economic relationship between the two nations. See id. at 54. A decision in favor of the Simon and Beaty may cause Iraq to remove its assets from the U.S., so that those assets are not attached to satisfy judgments against the current government. See id. Moreover, Iraq may denominate its oil sales in a currency other than dollars, and Iraqi businesses may be hesitant to do business with U.S. corporations for fear of entangling assets in lawsuits. See id. at 55-56. Finally, exposing the current Iraqi government to liability may hamper the Iraqi government's ability to devote funds to reconstructing Iraq, as well as thwart the ultimate U.S. foreign policy goal of rebuilding and supporting Iraq, and bringing peace and stability to the Middle East. See id. at 55.

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Analysis

Traditionally, under customary international law, foreign states have enjoyed virtually absolute immunity from the jurisdiction of other states' courts. See The Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 137-40 (1812). Throughout the twentieth century, however, states have increasingly adopted a restrictive theory of sovereign immunity, granting immunity to public but not private acts of sovereigns and states. See Tate Letter (1952). In 1952, the U.S. Department of State ("State Department") followed suit and in 1976, Congress codified the restrictive theory in the Foreign Sovereign Immunities Act ("FSIA"). See id.; 28 U.S.C. § 1330, et seq. In 1996, Congress amended the FSIA, providing in relevant part, that a state "designated as a state sponsor of terrorism . . . at the time the act [at issue] occurred" is not immune from an action for "money damages . . . for personal injury . . . that was caused by an act of torture . . . [or] hostage taking" to a "national of the United States." 28 U.S.C. § 1605(a)(7); see also Simon v. Iraq, 529 F.3d 1187, 1189 (D.C. Cir. 2008). The State Department designated the Republic of Iraq as a state sponsor of terrorism from 1990 to 2004. See American Forces Press Service News Articles. In these consolidated cases, the U.S. Supreme Court will decide if, under 28 U.S.C. § 1605(a)(7), U.S. courts have jurisdiction over Petitioner the Republic of Iraq, et al. ("Iraq"), in cases involving alleged misdeeds, including torture and hostage taking, by Saddam Hussein's regime, or if Iraq is immune from prosecution.

Applicability of 28 U.S.C. § 1605(a)(7) to Iraq under the Emergency Wartime Supplemental Authorization Act

The Emergency Wartime Supplemental Authorization Act ("EWSAA") provides, in relevant part, that "the President may make inapplicable with respect to Iraq . . . any other provision of law that applies to countries that have supported terrorism." Pub. L. No. 108-011, § 1503, 117 Stat. 559, 579 (2003). Iraq contends that the plain language of the EWSAA unambiguously authorized then President George W. Bush to make 28 U.S.C. § 1605(a)(7)'s exception to sovereign immunity inapplicable to Iraq and that President Bush exercised that authority in 2003. See Brief for Petitioners, Republic of Iraq, et al. ("Iraq") at 23-28. According to Iraq, "federal courts ‘are not at liberty to rewrite [a] statute to reflect a meaning [they] deem more desirable. Instead, [they] must give effect to the text Congress enacted.'" See id. at 28 (citing Ali v. Fed. Bureau of Prisons, 128 S.Ct. 831, 841 (2008)). Iraq argues that because the phrase "any other provision of law" is unambiguous, it is unnecessary to "resort to legislative history" to inform the EWSAA's meaning. Id. at 29 (citing U.S. v. Gonzales, 520 U.S. 1, 6 (1997)). Nevertheless, Iraq asserts that the EWSAA's legislative history, in particular Congress' inclusion of the word "any," supports Iraq's expansive reading of the EWSAA. See id. at 29. In addition, Iraq notes that "the President has independent constitutional authority-even without express statutory authority-to compromise the claims of U.S. nationals to further foreign policy interests," such as determining "whether and when a new government of Iraq [should] be freed from the sanctions imposed on its predecessor regime." Id. at 30-32. Finally, Iraq contends that § 1083(c)(4) of the National Defense Authorization Act for Fiscal Year 2008 ("NDAA"), enacted five years after the EWSAA to clarify congressional intent, neither altered Congress' original intent in enacting the EWSAA nor undermined the President's authority to make 28 U.S.C. § 1605(a)(7) inapplicable to Iraq. See id. at 34-37. Amicus curiae the United States agrees. See Brief for United States in Support of Reversal at 28-30. In addition, the United States supports Iraq's argument that the EWSAA unambiguously authorized President Bush to make 28 U.S.C. § 1605(a)(7) inapplicable to Iraq and that President Bush validly exercised that authority. See id. at 10-19. Finally, the United States contends that even if the EWSAA was ambiguous, courts should accord the President's reasonable interpretation "great deference." Id. at 22-25.

Conversely, Respondents Robert Simon, et al. ("Simon") and Jordan Beaty, et al. ("Beaty") contend that the EWSAA did not grant President Bush the authority to make 28 U.S.C. § 1605(a)(7) inapplicable to Iraq. See Brief for Respondents, Jordan Beaty, et al. ("Beaty") at 29-42 (citing Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004)); see Brief for Respondents, Robert Simon, et al. ("Simon") at 11-14. According to Simon, under the plain language of the EWSAA, the phrase "any other provision of law" refers only to "statutes contained in § 620A(a)" of the Foreign Assistance Act of 1961, not to 28 U.S.C. § 1605(a)(7). Id. at 14-23 (citing Pub. L. No. 108-011, § 1503, 117 Stat. 559, 579 (2003)). Simon argues that conventions and presumptions of statutory language, including contextualizing statutory language and recognizing express but not implied statutory repeals, also support this interpretation. See id. at 23-34. In addition, Simon asserts that "there is no indication anywhere in the legislative history of § 1503 [of the EWSAA] that Congress intended to authorize the President to make inapplicable any part of the FSIA." Id. at 37-39. Simon further asserts that NDAA § 1083(c)(4), post-EWSAA legislation which mandates the manner in which the EWSAA "is to be interpreted," supports his argument and should be accorded "great weight." Id. at 39-42 (citing Loving v. U.S., 517 U.S. 748, 770 (1996)). Finally, Simon contends that even if President Bush did effectively render 28 U.S.C. § 1605(a)(7) inapplicable to Iraq under the EWSAA, it is no longer effective because the EWSAA lapsed on September 30, 2005. See id. at 39-42. In addition, Beaty adds that even if the EWSAA authorized President Bush to make 28 U.S.C. § 1605(a)(7) inapplicable to Iraq, it did not authorize the President to do so retroactively and therefore, U.S. courts have jurisdiction over Simon's and Beaty's claims. See Brief for Beaty at 7-24.

Effect of the National Defense Authorization Act for Fiscal Year 2008 on 28 U.S.C. § 1605(a)(7)

Iraq contends that even if President Bush did not effectively render 28 U.S.C. § 1605(a)(7) inapplicable to Iraq under the EWSAA, § 1605(a)(7) does not apply to Iraq because the NDAA expressly repealed it and President Bush "waived its replacement as to Iraq." Brief for Petitioners at 37-38. According to Iraq, both the NDAA and its legislative history support Iraq's argument that the NDAA repealed § 1605(a)(7). See id. at 40-50. In addition, according to Iraq, U.S. courts have jurisdiction under the FSIA only if a state is not entitled to immunity under §§ 1605-07. See id. at 38. Accordingly, U.S. courts lack jurisdiction over Iraq because §§ 1605-07 do not currently except Iraq from sovereign immunity. See id.

Conversely, according to Beaty and Simon, the NDAA does not apply retroactively. See Brief for Beaty at 25-29; see Brief for Simon at 50-52. Thus, they argue, even if it repeals 28 U.S.C. § 1605(a)(7), U.S. courts would maintain jurisdiction over Simon and Beaty's claims. See id. In addition, Beaty argues that even if the NDAA applied retroactively, U.S. courts would maintain jurisdiction over Simon's and Beaty's claims because President Bush waived the NDAA with respect to Iraq. See Brief for Beaty at 25-29.

According to the United States, although both parties rely on the NDAA, it has no effect on U.S. courts' jurisdiction over Simon's and Beaty's claims because President Bush "immediately waived application of the NDAA with respect to Iraq upon its enactment." Brief for United States at 25-27.

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Conclusion

In Iraq v. Beaty and Iraq v. Simon, the U.S. Supreme Court will decide if, under 28 U.S.C. § 1605(a)(7), U.S. courts have jurisdiction over the Republic of Iraq ("Iraq") in cases involving alleged misdeeds, including torture and hostage taking, by Saddam Hussein's regime, or if Iraq is immune from prosecution. The Supreme Court's decision in this case will likely impact Iraq's sovereign immunity, the viability of U.S. nationals' claims against Iraq in U.S. courts, the Iraqi government's financial obligations for its predecessor's alleged misdeeds, and the United States' alliance with Iraq in the war against terror.

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Authors

Prepared by: Lauren Jones and Gary Laio

Edited by: Joe Hashmall

Additional Sources

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Edited by: