Monday, January 24, 2005

Re: When the US Government Backs Iraqi Torturers of American POW's

I've got a couple of responses. I apologize for the Congressional record thing. I'm doing my research for this during study breaks (which is a sad comment in itself), and the discontinuity leaves me a bit confused at times as to what I'm actually looking at.

On the issue of official capacity: I had read that as plain English, not realizing it was a term of art. Having read up on the jargon, it still seems difficult to defend. I can't see how these 42 U.S.C. § 1983 distinctions could be sensibly applied to this situation. Are we now charging foreign officials for being unfaithful the U.S. Constitution? Surely the court does not literally intend to enforce § 1983 against foreign officials, but rather to apply the general distinction of official/personal capacity. The cases referenced in Ky v. Graham to illustrate the meaning of official capacity as opposed to personal capacity discuss the distinction in terms of abuse of official powers. The intention is to prevent immunity from applying when an official does not apply the powers of his office in good faith. The point of the Flatow Amendment is to create liability against agents of states whose official policy is terrorism. An official who promotes terrorism within the scope of his office in a state whose policy is the promotion of terrorism is not necessarily (or likely) abusing his office; it is the office itself which is abusive. To limit liability under such a statute to agents who were carrying out terrorist acts in a manner that abused their office would be, sorry to use this word, incoherent. It's a Catch 22. Either the state does not support terrorism, or the official is not abusing his powers, either way you're screwed.

And really there's no reason to read the statute this way. Rather than deciding first that Flatow does not offer a cause of action against foreign states, then reasoning backwards from there to reinterpret Flatow in a way that would neuter it almost entirely, why not read it in a plain-meaning fashion, and infer whether or not a cause of action is offered against foreign states? It seems necessary for Flatow to serve any purpose that it create a valid cause of action against a foreign officer who, acting in good faith with respect to his office, took some action to promote terrorism against American citizens. If this is true, then based on reasoning offered by the United States and accepted by the court in Cicipio that an action against an official acting in their official capacity is equivalent to an action against the entity, we can infer that there is a valid cause of action against a foreign state.

Additionally, I am not ready to dismiss the intent of Congress so quickly either. The issue is not that these cases occurred and Congress stood by and did nothing. Theses cases occurred, and Congress, recognizing that barriers still prevented the plaintiffs in them from recovering damages against the foreign state defendants, passed new legislation to facilitate that recovery. Get a look at this congressional research report detailing Congress' efforts through the Victims of Trafficking and Violence Protection Act of 2000 to force the United States to pay up on a number of cases against foreign governments (including Cicipio!) out of funds that the U.S. had frozen from those countries. Flatow provided the cause of action for all these cases (in fact, the document remarks of Flatow: "Later in 1996 Congress enacted a counterpart statute giving injured parties or their legal representatives a cause of action for suits against terrorist states"). In the face of this legislation, I don't see how you could possibly argue that Congress did not intend Flatow to provide a cause of action against state sponsors of terrorism.

So anyway, I am still rather of the opinion that Cicipio (and thereby Acree) was botched.

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