Cool. Thanks! I'm glad I didn't just rely on Ty's totally neutral source - seems he was confused about some things. Like, the essence of the case, and all. Not that I would call him biased or anything - there's simply no reason to think that a losing plaintiffs attorney writing in Slate about how he lost to the US might not be totally . . . umm . . . truthful - so I'll take the criticism to heart, and start reading Joe Wilson's stuff over again, too.
Well, first, the court ruled on the basis that the FSIA provides no cause of action against a "state" - just against individuals making up that state. Sort of in line with what I was saying earlier, about how the victims were victimized by SH, or maybe even specific henchmen - but not by a state, and so there should be no recovery from the citizens of that state who neither participated in, nor profited from, that victimization.
We nevertheless conclude that the District Court’s judgment
in favor of appellees must be vacated and their lawsuit
dismissed for failure to state a cause of action. The District
Court’s judgment against Iraq rests solely on causes of action
purportedly arising under the terrorism exception and the
Flatow Amendment to the FSIA. Neither appellees’ complaint,
nor their submissions to this court, nor the District
Court’s decision in their favor offers any other coherent
alternative causes of action in support of appellees’ claims
against Iraq. Our recent decision in Cicippio-Puleo v. Islamic
Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004) (‘‘Cicippio’’),
makes it plain that the terrorism exception to the FSIA
is merely a jurisdictional provision and does not provide a
cause of action against foreign states. Cicippio also holds
that the Flatow Amendment to the FSIA, which provides a
cause of action against an ‘‘official, employee, or agent of a
foreign state,’’ 28 U.S.C. § 1605 note (2000), does not afford a
cause of action against a foreign state itself. We are therefore
constrained to vacate the judgment of the District Court
and dismiss appellees’ suit for failure to state a cause of
action.
It also appears that the government wasn't arguing, as per Ty, that "no, no, we need those funds, give them to MEEE!", but instead that, since the successful invasion of the country and deposition of the government, our government had already frozen and confiscated all of the Saddam funds in foreign accounts (from which these plaintiffs would have to seek their payment, as per the FSIA), and so these were no "judgment funds subject to seizure". In short, as we were sending billions over to Iraq for rebuilding, the plaintiffs wanted us to send them tons of our money, too. (Maybe we should - but that's a different argument, and would need a bill, not an FSIA lawsuit followed by a TRIA execution.)
"
This court affirmed the decision of the District Court by
judgment. See Acree v. Snow, No. 03–5195 (D.C. Cir. Oct. 7,
2003). The court did not address the applicability or effect of
the EWSAA and the Presidential Determination, however.
Rather, the court adopted the reasoning of the Second Circuit’s
decision in Smith v. Federal Reserve Bank of New
York, 346 F.3d 264 (2d Cir. 2003). In that case, the Second
Circuit held that plaintiffs proceeding under the TRIA to
attach seized Iraqi assets in satisfaction of a judgment were
precluded from doing so because the President had previously
confiscated the blocked assets and vested title in them in the
United States Department of the Treasury, thereby rendering
those funds insusceptible to execution or attachment. See
id. at 272 (discussing Exec. Order No. 13,290 of Mar. 20, 2003,
68 Fed. Reg. 14,307 (Mar. 24, 2003)). The Second Circuit –
and by extension this court – therefore did not reach the issue
of whether § 1503 or the Presidential Determination made
the TRIA inapplicable to Iraq and expressed no views on the
scope or validity of those provisions."
Finally, the court discusses the US's standing to bting the motion, and, more importantly, Bush's powers to cancel the applicability of the FSIA's "terrorism" provisions when he determines that the terrorist state at issue is now an ex-terrorist state being rebuilt with our money.
"
The logic of this interpretation is straightforward: Section
1605(a)(7) creates an exception to the sovereign immunity
normally enjoyed by foreign states in American courts for
suits based on acts of torture or other terrorist acts. This
exception applies only if the defendant foreign state was
designated as a sponsor of terrorism at the time the acts took
place. Section 1605(a)(7) is thus a ‘‘provision of law that
applies to countries that have supported terrorism.’’ The
EWSAA authorizes the President to make such provisions
inapplicable to Iraq, which authority the President exercised
in the May 7 Determination. Section 1605(a)(7) therefore no
longer applies to Iraq and cannot provide a basis for jurisdiction
in appellees’ case. Quod erat demonstrandum."
. . . .
"
Thus, when read in juxtaposition with this
portion of the ISA, the second proviso of § 1503 is more
persuasively interpreted as sharing a similar scope. That is,
it authorizes the President to make inapplicable with respect
to Iraq those provisions of law that impose economic sanctions
on Iraq or that present legal obstacles to the provision
of assistance to the Iraqi Government. This interpretation
reflects a central function of Chapter 5 of the EWSAA, which
is to provide for relief and reconstruction in post-war Iraq."
So, no, Mr. Slate's-version-of-an-uninterested-reporter, the US didn't just argue that "we need the money more than you do", and the court didn't just roll over to that. There were a few more sentences uttered during the motion hearing, I'm guessing.
(The Stop the Torture site makes several very basic and central errors. First, they insist there is a cause of action against a state. Next, they say "The Administration in March 2003 had removed all the assets from the frozen assets fund and dedicated them to rebuilding Iraq, which effectively undercut Congress's plan to make terrorists like Saddam pay for their crimes." Excuse me, but how, exactly, does taking this money from the citizens of Iraq - Saddam's other victims - serve Congress's "plan to make terrorists like Saddam pay for their crimes"? Saddam's in jail, and I hear he's overdrawn as hell. Taking this money from the Iraqis and giving it to the plaintiffs will result in Saddam paying . . . uh . . . NOTHING . . . for his crimes.)
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