A Forum for Grinches and Ho-Ho-Hoes

[bilmore]

Originally posted by Gattigap
Order from Court of Appeals.

And, more comprehensively, a set of links that appears to cover the litigation history and all of the pleadings and orders.

It's maintained by a site called Stop POW Torture, so tread carefully, though.

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.)

[bilmore]

Originally posted by Tyrone Slothrop
The Complete Idiot's Guide to Intelligent Design

See now, you're gonna die, and zip up to heaven, and end up in front of an old dude in a great big chair looking down on you, and, when you realize that the old guy looks just like Charlie Darwin, you're gonna be wettin' your pants.

[Tyrone Slothrop]

Originally posted by bilmore
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.

Explain this to me. The first part of the decision you quote suggests that the plaintiffs have no cause of action against states. Then you quote a portion suggesting that there is an exception for states that support terrrorism (a category that apparently included Iraq at the time of the torture). But then you quote a portion suggesting that President Bush exercised statutory authority to essentially remove Iraq from this list, meaning -- I surmise -- that although the plaintiffs did have a cause of action at one point, their ability to sue Iraq was later (retroactively) eliminated by action of the federal government. And the authority by which the latter was done doesn't owe to a general doctrine of odious debts, but derives from specific laws passed in connection with our occupation of Iraq. Have I got any of that wrong?

I assume you thanked Gatti for the leg work by PM or something.

[Adder]

Originally posted by bilmore
Tom Friedman is coming around to my way of thinking, even:

"I believe the tensions between us and the Muslim world stem primarily from the conditions under which many Muslims live, not what we do. I believe free people, living under freely elected governments, with a free press and with economies and education systems that enable their young people to achieve their full potential, don't spend a lot of time thinking about who to hate, who to blame, and who to lash out at. Free countries don't have leaders who use their media and state-owned "intellectuals" to deflect all of their people's anger away from them and onto America.

So I don't want young Muslims to like us. I want them to like and respect themselves, their own countries and their own governments. I want them to have the same luxury to ignore America as young Taiwanese have - because they are too busy focusing on improving their own lives and governance, running for office, studying anything they want or finding good jobs in their own countries."

Does anyone disagree with any of that? The question on the table is how do you acheive this. And is it even possible via invasion?

[bilmore]

Originally posted by Tyrone Slothrop
Explain this to me. The first part of the decision you quote suggests that the plaintiffs have no cause of action against states. Then you quote a portion suggesting that there is an exception for states that support terrrorism (a category that apparently included Iraq at the time of the torture). But then you quote a portion suggesting that President Bush exercised statutory authority to essentially remove Iraq from this list, meaning -- I surmise -- that although the plaintiffs did have a cause of action at one point, their ability to sue Iraq was later (retroactively) eliminated by action of the federal government. And the authority by which the latter was done doesn't owe to a general doctrine of odious debts, but derives from specific laws passed in connection with our occupation of Iraq. Have I got any of that wrong?

Yes. The main issue was, is there a cause of action against a "state". The answer was, no. But, to get there, the US had to have permission to bring the motion - they got booted in lower court for moving to intervene too late. It's all tied together, and you need to read the whole thing. As to the "well, they don't say "odious debt, do they?" thingie, no. They talk about how Saddam was the correct target, and not the "state", or the people remaining there. You know - like my last four posts on the topic.

I assume you thanked Gatti for the leg work by PM or something.

That would be the "Cool. Thanks!" that you quoted back to me.

[Tyrone Slothrop]

Originally posted by bilmore
Yes. The main issue was, is there a cause of action against a "state". The answer was, no. But, to get there, the US had to have permission to bring the motion - they got booted in lower court for moving to intervene too late. It's all tied together, and you need to read the whole thing. As to the "well, they don't say "odious debt, do they?" thingie, no. They talk about how Saddam was the correct target, and not the "state", or the people remaining there. You know - like my last four posts on the topic.

Having accused me of blindly relying on the statements made by the author of that piece -- who, incidentally, is a professor of law at Virginia, has been appointed to several positions by Republican presidents, and was the legal advisor to Kuwait's Ambassador to the United States from 1991 -- there is some irony involved in having you explain to me that he's wrong by quoting selectively from the opinion he was criticizing. That said, I'll read the decision.

[Hank Chinaski]

Originally posted by Tyrone Slothrop
The Complete Idiot's Guide to Intelligent Design

And here's another thing about evolution that you guys can't explain.

Okay- Ty went from posting his dry crazy blogs to posting something from a blog that was actually funny. Explain that without divine intervention.

[sgtclub]

Originally posted by Tyrone Slothrop
The Complete Idiot's Guide to Intelligent Design

I know you posted this for humor/entertainment value.

I'm not smart enough to prove there's a god or an intelligent designer, if you will, but the best evidence I've heard to support the god side is that Einstien believed it to be true.

[sgtclub]

I must admit, I'm behind on my SS reading, and didn't read Krugman's original piece yet, but this seems like another fisking . . .

• OK, now we are going to serious-up for a moment. The Earnest Prof has an unsolved arithmetic problem; perhaps we can help him with it.
  
  ...if we take into account realistic estimates of the fees that mutual funds will charge - remember, in Britain those fees reduce workers' nest eggs by 20 to 30 percent - privatization turns into a lose-lose proposition.
  
  Hmm, since my beer is cold, I know I am not in Britain, so what might a realistic estimate of cumulative fund fees be here in the States?
  
  The CBO, in their July 2004 evaluation, assumed account fees of 0.30% per annum on total assets, which seems plausible for the types of comparable funds run by the Federal Thrift Savings Plan. Shall we try a simple calculation to help the Prof?
  
  Suppose we are 20 years old, and our annual contribution will be an even $1,000 for the next 45 years. Let's keep this real simple, and assume we put the first $1,000 in a no-interest checking account with a 0.30% annual fee. This means that my first $1,000 will be charged $3 in the first year. If I had a spreadsheet (I will in a minute) I would reduce the $1,000 balance by that amount and calculate a new, slightly smaller fee for the second year. But for purposes of this estimation, lets just reduce my $1,000 deposit by $3 each year for 45 years.
  
  In that case, the total fees charged on my first $1,000 deposit are ($3 x 45) = $135. That is 13.5% of my initial deposit.
  
  But wait! I will also make deposits in subsequent years, and none of them will be charged fees over a full 45 year term. Good point. The last deposit will be charged a fee for just one year; taking a quick average of 45 years and 1 year, we can estimate that the average term is 23 years. The average fee is then $3 x 23, or $69. This is roughly 7% of my $1,000 deposit.
  
  Seems too easy, doesn't it? Well, with a modest spreadsheet, we can vary the growth rate in the annual deposit, and plug in an annual return on the account balance. Both of these factors make the account balance, and hence the annual fee, get larger.
  
  For 0% deposit growth and a 0% account return, the ending ratio, after 45 years, of an account with a 0.30% fee can be compared to a no-fee account. The result is a bit lower than our 7% estimate, coming in at 6.3%.
  
  For an account with 5% annual deposit growth (that would represent rising wages), and a 15% account return (that would be an astonishing stock market run), the expenses consume 8.5% of the "no-fee" account. So the "right" answer is somewhere in the 6% to 8% range.
  
  But hold on! Didn't Paul Krugman just ask for a "reasonable" estimate, and throw out 20% to 30% in Britain as a comparison? Based on the CBO number and some mental math, we came to 7%, which was quickly confirmed by a more elaborate calculation. Why, oh why is Prof. Krugman off by a factor of 300% to 400%? How can it be that he is misrepresenting the intelligence and hyping his case?
  
  You've got me. Possible answers might include: (a) this was too complicated a calculation for a prospective Nobel Laureate; (b) this was an easy calculation but not a helpful result for polemical purposes; or (c) his beer was warm, and all the folks in Princeton speak English, so he thought he was in Britain.
  

http://justoneminute.typepad.com/mai...ng_to_agr.html

[Tyrone Slothrop]

Originally posted by sgtclub
I know you posted this for humor/entertainment value.

I'm not smart enough to prove there's a god or an intelligent designer, if you will, but the best evidence I've heard to support the god side is that Einstien believed it to be true.

I think Einstein believed in a divine creator, a view that is not necessarily inconsistent with support of evolution and a rejection of intelligent design. One is a question of origins; the other a question of what happened then.

[Hank Chinaski]

If I lip synch the oath, maybe it'll help Boxer with the challenge of the results?

[sgtclub]

Originally posted by Tyrone Slothrop
I think Einstein believed in a divine creator, a view that is not necessarily inconsistent with support of evolution and a rejection of intelligent design. One is a question of origins; the other a question of what happened then.

I guess I don't understand the difference between devine creator and intelligent design. Isn't one a subset of the other.

[andViolins]

Originally posted by sgtclub
I guess I don't understand the difference between devine creator and intelligent design. Isn't one a subset of the other.

no. it simply points out one of the myriad of problems with "intelligent design" as a supposed "theory" explaining life. Where exactly did the "intelligence" make its grand entrance?

aV

[Tyrone Slothrop]

Originally posted by sgtclub
I guess I don't understand the difference between devine creator and intelligent design. Isn't one a subset of the other.

Many people believe that life was originally created by God, but that it has evolved since then. The intelligent design people believe that it was created in the form it now is in, ostensibly on the theory that living organisms are too complex to have evolved that way. Evolution is inconsistent with a literal reading of the Bible; ID is not.

[Tyrone Slothrop]

Originally posted by bilmore
You switch from justice to legalism way fast, kemo sabe. They are legal debts that are being cancelled on the basis of the moral-based theory of "odious debt".

You should have stuck with justice. I've now spent some time to read the circuit court decision in Acree, and I'm stumped as to why bilmore could claim some measure of vindication from it. I don't see any inconsistency between with the Slate article. The central point of the Slate article is that the circuit court, in a wartime nod of support to the executive branch, weakened the long-term interests of POWs by weakening the legal remedies for victims of torture. The author doesn't explain exactly what the court did, since he's writing for non-lawyers, but the court's holding is that the plaintiffs had no cause of action against the country of Iraq, as opposed to other named defendants, but -- and this is crucial -- not for any of the policy reasons that bilmore has suggested, but because there simply is, according to the court, no federal law providing for a cause of action against sovereign nations. This is the point of the Slate article -- by so holding, notwithstanding that no one ever raised this argument, the court has weakened the legal prohibitions on torture.

There's a whole separate issue about the court's jurisdiction to consider claims against Iraq, but the plaintiffs win that issue. And the Slate author accuses the government of making additional arguments that the court didn't reach or expressly rely on; as to these, bilmore is confused if he believes that the fact that the court didn't discuss these arguments means that the government didn't make them.

The key to what's wrong with the court's holding is that the same holding would apply to any other country which tortured our prisoners, without regard to all of the facts on which bilmore relies -- i.e., the benefits (or lack thereof) of the torture to Iraqis, the odiousness of the regime, etc.

The Slate author doesn't explain why the court's holding on the cause of action issue is in error, presumably because he's writing for non-lawyers, but the fact that a cert petition is pending would lead you to believe he's got an argument. As a matter of law, maybe he's wrong, of course.