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

The causes of action you list are state law claims. That is, the source of law is the power of the State. A State may regulate an individual's conduct occurring within its boundaries, and to some extent it may regulate conduct occuring outside its boundaries so long as it can demonstrate the conduct directly affects its citizens. A State may not, however, regulate the conduct of foreign states because "power over external affairs is not shared by the States; it is vested in the national government exclusively." United States v. Pink, 315 U.S. 203, 233 (1942); see also U.S. Const. art. I, § 8, cl. 10 ("The Congress shall have Power ... To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations"); Zschernig v. Miller, 389 U.S. 429, 441 (1968) (discussing what has been dubbed the doctrine of "dormant foreign affairs preeemption.")

In Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), American plaintiffs brought an action against a foreign state, one of its agencies, and a foreign official in his official (rather than personal) capacity. The D.C. Circuit agreed with the district court that it had jurisdiction over the case, id. at 58, but disagreed that the plaintiffs stated a cause of action for which relief could be granted. The court ruled that the plaintiffs failed to identify a federal law the defendants allegedly broke. Id. at 59-60. Contrary to your suggestion, Joe, the source of law could not have been state common law because, as discussed above, the State does not have authority to regulate the conduct of foreign states. And "generic common law cannot be the source of a federal cause of action. ... Rather, as in any case, a plaintiff proceeding under the [Foreign Sovereign Immunities Act] must identify a particular cause of action arising out of a specific source of law." Id. at 59.

The district court ruled that the Flatow Amendment provided the cause of action. Codified as a note to 28 U.S.C. § 1605, the Flatow Amendment provides in relevant part:

An official, employee, or agent of a foreign state designated as a state sponsor of terrorism ... while acting within the scope of his or her office, employment, or agency shall be liable to a United States national ... for personal injury or death caused by acts of that official, employee, or agent.

In Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (2004), the D.C. Circuit ruled that "the Flatow Amendment only provides a private right of action against officials, employees, and agents of a foreign state, not against the state itself." Further, an action under the Flatow Amendment must be against an official, employee, or agent in his individual (or personal) capacity, because official-capacity suits are, in substance, "a claim against the government itself." Id. at 1034.

If there is a flaw in reasoning anywhere, it must be in the Cicippio-Puleo decision. It is entirely reasonable to believe the Congress intended to hold foreign states liable for acts of torture. Consider the following portion of 28 U.S.C. § 1606, a provision of the FSIA the court neglects to mention in Cicippio-Puleo:

As to any claim for relief with respect to which a foreign state is not entitled to immunity unde section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.

The other appellate courts and the Supreme Court may disagree with the D.C. Circuit's conclusion that the Flatow Amendment does not provide a cause of action against foreign states, but until that happens there appears to be no other basis under which a citizen plaintiff may sue a foreign state for acts of torture.

In sum, a plaintiff suing a foreign state must allege a federal claim because the authority of the State does not reach that far into foreign affairs. One might suggest that is a subject matter limitation, though I believe it would be more accurate to characterize the limitation as one of federalism. There is no "generic federal common law" as such, so a plaintiff must identify some particular act of Congress or a provision of the Constitution that prohibits the alleged conduct and that provides the plaintiff the right to recover in federal court. After Cicippio-Puleo, it seems unlikely that a plaintiff can use the Flatow Amendment as the basis for liability against a foreign state.

Hope that clarifies things. I look forward to reading your response.