Monday, June 8, 2009
U.S. Supreme Court Holds that the Republic of Iraq is No Longer Subject to Suit in U.S. Federal Courts
The U.S. Supreme Court issued its decision today in Republic of Iraq v. Beaty, a case it consolidated with Republic of Iraq v. Simon. Justice Scalia authored the opinion for a unanimous Supreme Court, which reversed the federal appellate court and held that the Republic of Iraq is no longer subject to suit in U.S. federal courts. Here’s the summary of the decision from the U.S. Supreme Court, includinig references to specific pages of the decision. Click here for the U.S. Supreme Court decision itself.
The Foreign Sovereign Immunities Act of 1976 (FSIA) prohibits suits against other countries in American courts, 28 U. S. C. §1604, with certain exceptions. One exception, §1605(a)(7) (now repealed), stripped a foreign state of immunity in any suit arising from certain acts of terrorism that occurred when the state was designated as a sponsor of terrorism under §6(j) of the Export Administration Act of 1979 or §620A of the Foreign Assistance Act of 1961.
Iraq was designated as a sponsor of terrorism in 1990, but in 2003, following the American-led invasion of Iraq, Congress enacted the Emergency Wartime Supplemental Appropriations Act (EWSAA), §1503 of which included a proviso clause (the second in a series of eight) authorizing the President to “make inapplicable with respect to Iraq [§]620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism.” Although President Bush exercised that authority, the D. C. Circuit held in its 2004 Acree decision that the EWSAA did not permit the President to waive §1605(a)(7), and thereby restore Iraq’s sovereign immunity, for claims arising from actions Iraq took while designated as a sponsor of terrorism.
Thereafter, Congress repealed §1605(a)(7) in §1083(b)(1)(A)(iii) of the National Defense Authorization Act for Fiscal Year 2008 (NDAA) and replaced it with a new, roughly similar exception, §1083(a). The NDAA also declared that nothing in EWSAA “ever authorized, directly or indirectly, the making inapplicable of any provision of [the FSIA] or the removal of the jurisdiction of any court” (thus purporting to ratify Acree), §1083(c)(4); and authorized the President to waive “any provision of this section with respect to Iraq” under certain conditions, §1083(d). On the same day the President signed the NDAA into law he also waived all of §1083’s provisions as to Iraq.
Respondents filed these suits against Iraq in early 2003, alleging mistreatment by Iraqi officials during and after the 1991 Gulf War. Under Acree, the courts below refused to dismiss either case on jurisdictional grounds. The D.C. Circuit also rejected Iraq’s alternative argument that even if §1605(a)(7)’s application to it survived the President’s EWSAA waiver, the provision was repealed by NDAA §1083(b)(1)(A)(iii); and that the President had waived NDAA §1083(a)’s new exception with respect to Iraq under his §1083(d) authority. The court held instead that it retained jurisdiction over cases pending against Iraq when the NDAA was enacted.
Held: Iraq is no longer subject to suit in federal court. Pp. 6–17.
(a) The District Court lost jurisdiction over both suits in May 2003, when the President exercised his EWSAA authority to make §1605(a)(7) “inapplicable with respect to Iraq.” Pp. 6–13.
(i) Iraq’s (and the United States’) reading of EWSAA §1503’s second proviso as sweeping in §1605(a)(7)’s terrorism exception to foreign sovereign immunity is straightforward. In the proviso’s terms, the exception is a “provision of law” (indisputably) that “applies to” (strips immunity from) “countries that have supported terrorism” (as designated pursuant to certain statutory provisions). Because he exercised his waiver authority with respect to “all” provisions of law encompassed by the second proviso, his actions made §1605(a)(7) “inapplicable” to Iraq. Pp. 6–7.
(ii) Acree’s resistance to the above construction was based on a sophisticated attempt to construe EWSAA §1503’s second proviso as limiting that section’s principal clause, which authorized suspension of “any provision of the Iraq Sanctions Act of 1990.” While a proviso’s “general office … is to except something from the enacting clause, or to qualify and restrain its generality,” United States v. Morrow, 266 U. S. 531 , another recognized use is “to introduce independent legislation,” id., at 535, which was the function of the proviso here. In any event, §1605(a)(7) falls within the scope of the proviso even accepting the narrower interpretation adopted by the Acree decision. Pp. 7–11.
(iii) Respondents’ other objections to the straightforward interpretation of EWSAA §1503’s proviso are rejected. Pp. 11–12.
(iv) Nothing in the NDAA changes the above analysis. Although NDAA §1083(c)(4) appears to ratify Acree, this Court need not decide whether such a ratification is effective because §1083(d)(1) authorized the President to “waive any provision of this section with respect to Iraq,” and he waived “all” such provisions, including §1083(c)(4). Pp. 12–13.
(b) The Court rejects the argument that §1605(a)(7)’s inapplicability does not bar claims arising from Iraq’s conduct prior to the President’s waiver. In order to exercise jurisdiction over these cases, the District Court had to “apply” §1605(a)(7) with respect to Iraq, but the President’s waiver made that provision “inapplicable.” No retroactivity problem is posed by this construction, if only because the primary conduct by Iraq that forms the basis for these suits actually occurred before §1605(a)(7)’s enactment. Pp. 13–16.
(c) Respondents also argue that EWSAA §1503’s sunset clause—under which “the authorities contained in [that] section” expired in 2005—revived §1605(a)(7) and restored jurisdiction as of the sunset date. But expiration of the §1503 authorities is not the same as cancellation of the effect of the prior valid exercise of those authorities. Pp. 16–17.