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

Here are some additional comments in response to your recent post. I will save for a later post an elaboration on the issue of whether state law claims could serve as the basis for liability.

The D.C. Circuit has already considered, in Acree, the Government's argument that the Emergency Wartime Supplemental Appropriations Act removes Iraq from the reach of FSIA's terrorism exception, and it concluded, "While it is a close question, we agree with appellees that 28 U.S.C. § 1605(a)(7) is not a provision of law that falls within the scope of" that Act. 370 F.3d at 48. I'm sure that will not be the last we hear of that argument, but at least it's resolved in the D.C. Circuit. As Professor Moore observes in his petition for certiorari (available on Westlaw), it is unlikely there will be much action on these issues in other circuits because the venue provision of the FSIA favors the District of Columbia. See 28 U.S.C. § 1391(f).

I agree there are parts of Cicippio with strained reasoning (and I submit the same goes for Acree), though I disagree the opinion is "incoherent." That is a pejorative I prefer to save for the most appalling opinions (like the remedial majority's Booker opinion). And although the text of 28 U.S.C. § 1606 resolves the matter for me, it is certainly not conclusive on the issue of congressional intent. For instance, one could make a strong argument that the familiar doctrine of expressio unius est exclusio alterius (the expression of one thing implies the exclusion of another) applies--it seems at least plausible from the fact that the Flatow Amendment made officials, employees, and agents of foreign states liable that the Congress purposefully omitted a foreign state from the list.

As for your resort to legislative history, I note that beside its inherently dubious value, the portion you quote suggests to me not that the Congress intended to create a cause of action against a foreign state, as you suggest, but that it wanted to be sure someone with a viable claim against a foreign state could bring that claim in federal court, notwithstanding foreign sovereign immunity. Now, I humbly admit my skills of research into legislative history are not well-honed, and please correct me if I am wrong, but it appears you are citing a report that has nothing to do with the Flatow Amendment. Rather, you cite a portion of a House Conference report addressing the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. 104-132 (1996). The section from which you quote, section 221, is entitled "jurisdiction for lawsuits against foreign states"; in that section the Congress added the exception to immunity now found at 28 U.S.C. § 1605(a)(7). See H.R. Conf. Rep. 104-518 (Apr. 15, 1996).

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The Congress enacted the Flatow Amendment in title V, section 589, as part of the omnibus appropriations bill for fiscal year 1997, Pub. L. 104-208 (1996). For what little it's worth, the Committee report to that bill may be found at H.R. Conf. Rep. 104-863 (Sept. 28, 1996). The only portion I found addressing the liability provision states as follows:

The conference agreement inserts language expanding the scope of monetary damage awards available to American victims of international terrorism. The conferees intend that this section shall apply to cases pending upon enactment of this Act.

Not very helpful, in my opinion.

You suggest that something can be gleaned from the fact that the Congress has failed to act despite that numerous cases have been successfully brought against foreign state defendants. I disagree. I hesitate to point out the obvious--the Congress fails to act more often than it actually does something, and in any event acquiescence of a later Congress is not a reliable indicator of the intent of an earlier one. Further, neither the D.C. Circuit nor any other circuit to my knowledge has affirmed an order holding a foreign state liable under the Flatow Amendment. And, contrary to popular opinion, district courts do not create precedent.

Finally, it is perfectly logical that the Congress intended to impose personal liability on an official, employee, or agent acting in his official capacity, for that is the same scheme the Congress established under 42 U.S.C. § 1983. That section makes an individual liable in his individual capacity for damages resulting from an action he takes under color of state law that deprives a citizen of a constitutional right. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Section 1983 suits for damages may be brought directly against a municipality, but not against a State unless it has waived its sovereign immunity. To be sure, bringing § 1983 into the picture actually supports the ultimate conclusion that the Flatow Amendment creates liability of foreign states, because the exceptions to the FSIA remove the barrier of sovereign immunity. I cite that statute, however, to illustrate that it is not unprecedented to hold an individual personally liable for an official act.