Monday, January 24, 2005

Re: When the US Government Backs Iraqi Torturers of American POWs

I am convinced by your arguments on the state/federal cause of action issue. There is a nice law review note that summarizes developments in FSIA terrorist claims through the last decade, and including Acree and Cicipio: Jeewon Kim, Making State Sponsors of Terrorism Pay: A Separation of Powers Discourse Under the Foreign Sovereign Immunities Act, 22 Berkeley J. Int'l L. 513 (2004). As noted there, more than 20 judgments have been handed down against state defendants since 1996, although few plaintiffs have been able to recover any of the damages awarded them. In 2000, Congress passed the Victims of Trafficking and Violence Protection Act, which was to allow some of these plaintiffs to be paid from frozen assets held by the United States. Congress also apparently passed legislation to allow plaintiffs in these cases to be able to attach the property of foreign states, but Clinton vetoed it. There is also some discussion of the additional complications that would arise in the suit should it be remanded with a go ahead for intervention by the Feds. They plan to argue that the Emergency Wartime Supplemental Appropriations Act officially removes Iraq from all the terrorist state sponsors lists and makes it no longer a valid target of an FSIA claim.

In any case, the Cicipio ruling seems fairly incoherent. The section you quote ("the foreign state shall be liable in the same manner and to the same extent...") provides ample opportunity for a textualist interpretation of the statute to allow for an action against a state. Moreover, the intent of Congress does not seem terribly difficult to ascertain. The Flatow Amendment was titled the Civil Liabilities for Acts of State Sponsored Terrorism Act, and the relevant Congressional committee report reads:

"This subtitle provides that nations designated as state sponsors of terrorism under section 6(j) of the Export Administration Act of 1979 will be amenable to suit in U.S. courts for terrorist acts. It permits U.S. federal courts to hear claims seeking money damages for personal injury or death against such nations".

104 H. Rpt. 518

Additionally, numerous cases have already occurred where foreign states have been sued under the act, and not only has Congress not acted to stop this from occurring, they have endeavored through legislation to help the plaintiffs recover from the foreign state defendants.

Finally, the court's interpretation that "the cause of action is limited to claims against those officials in their individual, as opposed to their official, capacities" is awfully difficult to reconcile with the language of the statute which states that an "official ... of a foreign state ... while acting within the scope of his or her office ... shall be liable".

I think it's interesting that they could make a separation of power issue out of this, but don't. Moreover, if they had just made the ruling to allow the Feds to intervene and remanded it, it probably would have become a separation of powers issue. It just seems odd that they fixated on this issue, which doesn't appear to have a lot of support.

I wonder if Dave has something to say on all this...?

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