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No. 07-1090

 

In the Supreme Court of the United States

REPUBLIC OF IRAQ, PETITIONER

v.

JORDAN BEATY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

GREGORY G. GARRE
Solicitor General
Counsel of Record
GREGORY G. KATSAS
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
DOUGLAS HALLWARD-DRIEMEIER
Assistant to the Solicitor
General
DOUGLAS N. LETTER
LEWIS S. YELIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

JOHN B. BELLINGER, III
Legal Adviser
Department of State
Washington, D.C. 20520
ROBERT F. HOYT
General Counsel
Department of the Treasury
Washington, D.C. 20220

QUESTION PRESENTED

Whether the Republic of Iraq continues to be amena ble to suit under the exception to foreign sovereign im munity contained in 28 U.S.C. 1605(a)(7).

 

 

 

In the Supreme Court of the United States

No. 07-1090

REPUBLIC OF IRAQ, PETITIONER

v.

JORDAN BEATY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is filed in response to the Court's order inviting the Solicitor General to express the views of the United States. In the view of the United States, the Court should grant the petition for a writ of certiorari.

STATEMENT

1. Congress has adopted numerous sanctions that apply to countries that have supported international ter rorism. In Section 620A of the Foreign Assistance Act of 1961 (FAA), 22 U.S.C. 2371, and in Section 6(j) of the Export Administration Act of 1979 (EAA), 50 U.S.C. App. 2405(j), Congress has forbidden foreign assistance and restricted exports to countries that the Secretary of State has determined have "repeatedly provided support for acts of international terrorism." 22 U.S.C. 2371(a); 50 U.S.C. App. 2405(j)(1)(A). Over the years, Congress has expanded the range of legal and economic sanctions that flow from a country's designation as a state sponsor of terrorism under either FAA Section 620A or EAA Section 6(j), including denial of visas, 8 U.S.C. 1735, loss of military contracts, 10 U.S.C. 2327(b), loss of grants and fellowships to the country's nationals, 15 U.S.C. 7410(b), and loss of foreign tax credits, 26 U.S.C. 901(j)(2)(A)(iv).

In 1996, Congress adopted the sanction at issue in this case-the abrogation of designated states' immunity from suit as to certain terrorism-related claims. The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1602 et seq., establishes a general rule that "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States," 28 U.S.C. 1604, subject only to exceptions specifically enu merated in 28 U.S.C. 1605 and 1607. As originally en acted, the FSIA granted foreign states immunity from suit even for acts of torture or other gross violations of human rights. See Saudi Arabia v. Nelson, 507 U.S. 349, 362-363 (1993). In 1996, Congress abrogated that immunity for claims involving "personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, [or] hostage taking," against any foreign state that was designated by the Secretary of State under EAA Section 6(j) or FAA Section 620A "as a state sponsor of terrorism" at the time the act occurred or later as a result of that act. 28 U.S.C. 1605(a)(7). The amendment applied to any claim "aris ing before, on, or after the date of" the amendment. Mandatory Victims Restitution Act of 1996, Pub. L. No. 104-132, § 221(c), 110 Stat. 1243.

2. In September 1990, Iraq, then ruled by Saddam Hussein, was designated a state sponsor of terrorism by the Secretary of State pursuant to EAA Section 6(j). 55 Fed. Reg. 37,793. As a consequence, Iraq became sub ject to the full panoply of sanctions identified above, in cluding, after 1996, the abrogation of Iraq's immunity from claims within the scope of Section 1605(a)(7).

On November 5, 1990, Congress independently de termined, using the same language as EAA Section 6(j)(1)(A), that Iraq had "repeatedly provided support for acts of international terrorism." Iraq Sanctions Act of 1990 (ISA), Pub. L. No. 101-513, § 586F(c)(1), 104 Stat. 2051. The ISA mandated that certain enumerated provisions of law, including FAA Section 620A, "and all other provisions of law that impose sanctions against a country which has repeatedly provided support for acts of international terrorism * * * shall be fully enforced against Iraq." Ibid. A separate provision of the ISA im posed additional sanctions against Iraq that were not specifically tied to Iraq's designation as a sponsor of international terrorism. § 586G, 104 Stat. 2051-2052.

In subsequent years, Congress directed that further sanctions be applied against Iraq as well. See Iran-Iraq Arms Non-Proliferation Act of 1992, Pub. L. No. 102- 484, § 1602(b), 106 Stat. 2571; Act of Apr. 30, 1994, Pub. L. No. 103-236, § 431(a)(1), 108 Stat. 459 (amending FAA Section 307, 22 U.S.C. 2227 (2000), to withhold Uni ted States' share of funding to certain international or ganizations for those organizations' programs in Iraq).

3. On March 19, 2003, a United States-led coalition began military operations to disarm Iraq and remove the Hussein regime from power. By May 1, 2003, major combat operations against the Iraqi army had ended. On December 13, 2003, Hussein himself was captured.

In response to the dramatically changed circum stances in Iraq, Congress and the President took various steps to stabilize Iraq and reconstruct it as quickly as possible. On April 16, 2003, Congress enacted the Emergency Wartime Supplemental Appropriations Act, 2003 (EWSAA), Pub. L. No. 108-11, 117 Stat. 559. In EWSAA Section 1503, Congress authorized the Presi dent to "suspend the application of any provision of the [ISA]" and further provided, inter alia, that "the Presi dent may make inapplicable with respect to Iraq section 620A of the [FAA] or any other provision of law that applies to countries that have supported terrorism." 117 Stat. 579.

On May 7, 2003, the President issued Presidential Determination No. 2003-23, in which he exercised his Section 1503 authority by "suspend[ing] the application of all of the provisions" of the ISA, with the exception of penalties for embargo violators, and "mak[ing] inappli cable with respect to Iraq section 620A of the [FAA] and any other provision of law that applies to countries that have supported terrorism." 3 C.F.R. 320 (2004).

In a formal message, the President informed Con gress of Presidential Determination 2003-23 and also that he had issued Executive Order No. 13,303, 3 C.F.R. 227 (2004), pursuant to his authority under the Interna tional Emergency Economic Powers Act, 50 U.S.C. 1701 et seq., in order to protect Iraqi assets from "attachment or other judicial process." Message to the Congress Reporting the Declaration of a National Emergency with Respect to the Development Fund for Iraq, 39 Weekly Comp. Pres. Doc. 647, 647-648 (May 22, 2003). The President's Message explained that "[a] major na tional security and foreign policy goal of the United States" in the wake of the successful military campaign was "to ensure that * * * Iraqi resources * * * are dedicated for the well-being of the Iraqi people, for the orderly reconstruction and repair of Iraq's infrastruc ture, * * * and for other purposes benefiting the peo ple of Iraq." Id. at 647. His Message specified that the provisions of law that had been made inapplicable to Iraq by EWSAA Section 1503 and Presidential Determi nation 2003-23 "include, but are not limited to, 28 U.S.C. 1605(a)(7), 28 U.S.C. 1610, and section 201 of the Terror ism Risk Insurance Act [of 2002]" (TRIA), Pub. L. No. 107-297, 116 Stat. 2337, relating to the enforcement of terrorism-related judgments.

3. In Acree v. Republic of Iraq, 370 F.3d 41 (2004), cert. denied, 544 U.S. 1010 (2005), a divided panel of the District of Columbia Circuit ruled that the President lacked authority under EWSAA Section 1503 to make Section 1605(a)(7) inapplicable to Iraq. The majority described the question as "exceedingly close," but con cluded that the power conferred on the President by Section 1503 did not encompass Section 1605(a)(7), id. at 51. While acknowledging that a "straightforward" read ing of the phrase "any other provision of law that applies to countries that have supported terrorism" would in clude Section 1605(a)(7), ibid., the majority held that Section 1503's authorization was implicitly limited to "provisions of law that call for economic sanctions and prohibit grants of assistance to state sponsors of terror ism," id. at 54. Turning to the merits, the majority de termined that the Acree plaintiffs had failed to state a cause of action, and it dismissed the suit without leave to amend. Id. at 58-60.

Then-Judge Roberts concurred in the dismissal of the plaintiffs' suit, but did so on the jurisdictional grounds advanced by the United States. Acree, 370 F.3d at 60. He observed that Section 1605(a)(7) is "on its face a 'provision of law that applies to countries that have supported terrorism,'" and he rejected the majority's inference of limitations to circumscribe the President's authority. Ibid. He would have held "that the Presi dent was authorized to-and did, with the Presidential Determination-oust the federal courts of jurisdiction over Iraq in Section 1605(a)(7) cases." Id. at 63.

4. Kenneth Beaty and William Barloon are Ameri can citizens who were taken hostage and mistreated by the Hussein regime during the first Gulf War. Pet. App. 5a; Daliberti v. Republic of Iraq, 146 F. Supp. 2d 19, 25 (D.D.C. 2001). Beaty, Barloon, and their wives sued Iraq pursuant to Section 1605(a)(7), and the four were awarded and ultimately recovered more than $10 mil lion. Id. at 20, 26. In 2003, respondents, who are chil dren of Beaty and Barloon, sued Iraq under Section 1605(a)(7) for emotional distress resulting from their fathers' captivity. Pet. App. 9a. Iraq moved to dismiss for lack of subject matter jurisdiction as a result of Presidential Determination 2003-23. Id. at 17a-19a. After the court of appeals' Acree decision, the district court denied Iraq's motion. Id. at 22a.

Iraq appealed and, with the United States' support as amicus curiae, petitioned the court of appeals to grant initial en banc consideration of the Section 1503 ques tion. The court of appeals denied the petition for initial hearing en banc, Pet. App. 94a, and, on November 21, 2007, summarily affirmed on the basis of the Acree deci sion, id. at 1a. Iraq seeks this Court's review of that decision.

5. On December 17, 2007, Congress passed a bill to amend the terrorism exception to foreign sovereign im munity. The bill repealed 28 U.S.C. 1605(a)(7), and re placed it with a new exception to immunity under the FSIA relating to support of terrorism, 28 U.S.C. 1605A. See National Defense Authorization Act for Fis cal Year 2008, H.R. 1585, 110th Cong., 1st Sess. § 1083(b)(1)(A)(iii) (H.R. 1585); id. § 1083(a). Section 1083(c)(4) of the bill purported to interpret the authority Congress had earlier provided the President in EWSAA Section 1503, stating that "[n]othing in section 1503 of [EWSAA] has ever authorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the juris diction of any court of the United States." H.R. 1585, § 1083(c)(4).

On December 28, 2007, the President withheld his approval of H.R. 1585. Despite the fact that the bill con tained important authorizations for the Department of Defense during a time of war, the President declined to sign the bill because Section 1083 "would imperil billions of dollars of Iraqi assets at a crucial juncture in that na tion's reconstruction efforts and because it would under mine the foreign policy and commercial interests of the United States." Memorandum to the House of Repre sentatives Returning Without Approval the "National Defense Authorization Act for Fiscal Year 2008," 43 Weekly Comp. Pres. Doc. 1641, 1641 (Dec. 28, 2007).

The Administration and Congress reached a compro mise to address the President's concerns. Congress passed a revised version of the bill that authorized the President to "waive any provision of [Section 1083] with respect to Iraq" if the President first found certain con ditions met. National Defense Authorization Act for Fiscal Year 2008 (NDAA) Pub. L. No. 110-181, § 1083(d)(1), 122 Stat. 343. On January 28, 2008, the same day the President signed the amended bill into law, he made the requisite findings and exercised his full authority under Section 1083(d) by "waiv[ing] all provi sions of section 1083 of the Act with respect to Iraq and any agency or instrumentality thereof." Presidential Determination No. 2008-9, 73 Fed. Reg. 6571.

DISCUSSION

The petition for certiorari should be granted because the court of appeals has incorrectly resolved a question of exceptional importance to the foreign relations of the United States in a manner that overturns the considered judgment of the President under an express grant of authority by Congress.

I. THE COURT SHOULD GRANT THE PETITION AND HOLD THAT THE PRESIDENT MADE SECTION 1605(a)(7) INAPPLICABLE TO IRAQ PURSUANT TO HIS AUTHORITY UNDER EWSAA SECTION 1503

A. Congress authorized the President in EWSAA Section 1503 to "make inapplicable with respect to Iraq Section 620A of the [FAA] or any other provision of law that applies to countries that have supported terrorism." 117 Stat. 579 (emphasis added). That provision unam biguously authorized the President to render inopera tive as to Iraq any and all laws that apply specifically to countries designated as state sponsors of terrorism. See United States v. Gonzales, 520 U.S. 1, 5 (1997) ("Read naturally, the word 'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind.'" (quoting Webster's Third New International Dictionary 97 (1976))). Section 1605(a)(7) abrogates foreign sover eign immunity for certain claims against a country "des ignated as a state sponsor of terrorism" under EAA Sec tion 6(j) or FAA Section 620A. 28 U.S.C. 1605(a)(7)(A). Thus, under the plain statutory text, Section 1605(a)(7) is one of those provisions of law that Section 1503 autho rized the President to render inapplicable as to Iraq.

As then-Judge Roberts explained in his concurring opinion in Acree, the Acree decision-which was the sole basis for the court of appeals' summary affirmance in this case-incorrectly failed to give full effect to the un ambiguous text of Section 1503. The Acree majority's conclusion that Section 1503 should be confined to a nar rower set of "provisions that present obstacles to assis tance and funding for the new Iraqi Government," 370 F.3d at 51, imposes an atextual and unwarranted limita tion on the statute. Although the majority believed that the relevant criterion of similarity between FAA Section 620A and the "other" provisions referred to in Section 1503 was that they impose "obstacles to assistance and funding," the text of Section 1503 expressly provides a different test of similarity-namely, whether the other provision of law is one that "applies to countries that have supported terrorism." By its terms, Section 1503 has a broad reach that encompasses many sanctions that do not relate to "assistance" or "funding," including, in addition to Section 1605(a)(7), the prohibition on ex ports, 50 U.S.C. App. 2405(j), military contracts, 10 U.S.C. 2327(b), and the denial of visas to Iraqi nationals, 8 U.S.C. 1735. See Pennsylvania Dep't of Corr. v. Yes key, 524 U.S. 206, 212 (1998) (term "any" plainly "dem onstrates breadth") (quotation marks omitted). The Acree majority's cramped construction erroneously ex cludes those provisions from the President's waiver au thority.

The majority's engrafted limitation is particularly unwarranted in light of the fact that another statute enacted just two months before EWSAA demonstrates that "Congress knows how to use more limited language along the lines of the majority's construction when it wants to." Acree, 370 F.3d at 60 (Roberts, J., concur ring) (citing Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, Div. E, § 537(c)(1), 117 Stat. 196 (provision easing restriction on assistance to nongov ernmental organizations in foreign countries inapplica ble "with respect to section 620A of the [FAA] or any comparable provision of law prohibiting assistance to countries that support international terrorism") (empha ses added)).

The Acree majority relied on the canons of noscitur a sociis and ejusdem generis and a presumption that "where statutory language is phrased as a proviso, * * * its scope is confined to that of the principal clause to which it is attached," which, in this case, grants the President authority to suspend the ISA. 370 F.3d at 52- 53 (citing United States v. Morrow, 266 U.S. 531, 534- 535 (1925)). Applying those canons, the court deter mined that the several provisos to Section 1503, includ ing the second proviso at issue here, were merely "re sponsive to a specific aspect of the ISA or other statutes that are implicated by the suspension authority granted in § 1503." Id. at 53. Relying on that understanding, the majority concluded, id. at 54, that the second proviso in Section 1503 is "responsive" to ISA Section 586F(c), which mandated enforcement against Iraq of five enu merated provisions of law, including FAA Section 620A, as well as "all other provisions of law that impose sanctions against a country which has repeatedly pro vided support for acts of international terrorism." ISA § 586F(c)(1) and (2), 104 Stat. 2051. After determining that the statutes enumerated in ISA Section 586F(c)(2) all "deal with restrictions on assistance to state sponsors of terrorism," the court concluded that the "all other provisions" language of Section 586F(c)(1) must be lim ited in that fashion and that that limitation must be car ried over to the "any other provision of law" language of EWSAA Section 1503, even though Section 1503 does not contain the same list of enumerated statutes as Sec tion 586F(c)(2). Acree, 370 F.3d at 54-55.

The majority's attempt to shoehorn each of the Sec tion 1503 provisos into an ISA-centered framework can not be squared with the text or purpose of Section 1503. Although provisos are sometimes dependent on a pre ceding clause, this Court has recently emphasized that "it is also possible to use a proviso to state a general, independent rule." Alaska v. United States, 545 U.S. 75, 106 (2005). Section 1503 is such a statute. The court of appeals' analysis cannot, for example, account for the fourth proviso in Section 1503, which provides that "sec tion 307 of the [FAA] shall not apply with respect to pro grams of international organizations for Iraq." 117 Stat. 579. Section 307 specifies certain countries, including Iraq at that time, as to which the United States will withhold funding for international organizations' pro grams. 22 U.S.C. 2227 (2000). Section 307 was made applicable to Iraq by that provision's own force, see Act of Apr. 30, 1994, Pub. L. No. 103-236, § 431(a)(1), 108 Stat. 459, and its application to Iraq would not have been affected by the ISA's suspension. It was instead the fourth proviso in Section 1503 that rendered that provi sion immediately inapplicable to Iraq, without regard to any action the President might take under his authority in Section 1503's principal clause to suspend the ISA.

Like the fourth proviso, the second proviso in Section 1503, at issue here, has significance independent of the President's authority to suspend the ISA. As noted above, even before Congress adopted the ISA, the Sec retary of State had designated Iraq a state sponsor of terrorism, a designation that carried with it numerous sanctions, including those in FAA Section 620A and, after 1996, application of the FSIA's terrorism excep tion. All of those provisions would have continued to apply to Iraq due to the independent legal effect of the Secretary's designation, regardless of whether the ISA was suspended. Thus, the second proviso does not mere ly "make[] clear" the President's authority to suspend the ISA, as the Acree majority believed, 370 F.3d at 54, but rather was independently essential to effectuating Congress's purpose for Section 1503. As previously dis cussed, Section 1605(a)(7) is without question a "provi sion of law that applies to countries that have supported terrorism," and accordingly is within the scope of the second proviso. Thus, even assuming that the majority's restrictive reading of the "all other provisions of law" language in ISA Section 586F(c)(1) were a correct inter pretation of that statute, it would in no way warrant the court's importation of that limitation into the second proviso in Section 1503, which does not cross-reference Section 586F and does not contain the same set of enu merated statutes as Section 586F(c)(2).

In any event, Section 1605(a)(7) is a statute that, to use the words of the Acree majority, "present[s] obsta cles to * * * funding for the new Iraqi Government." 370 F.3d at 51. As his Message to Congress explained, the President concluded that the "threat of attachment or other judicial process" against Iraqi assets necessary to stabilize and rebuild Iraq posed an "unusual and ex traordinary threat * * * to the national security and for eign policy of the United States." 39 Weekly Comp. Pres. Doc. at 647. It was for this reason that the Presi dent singled out Sections 1605(a)(7) and 1610 of the FSIA and Section 201 of the TRIA, all of which pertain to the entry and execution of judgments against terror ist states, as among those rendered inapplicable to Iraq by the President's exercise of his authority under the second proviso in Section 1503. Thus, even under the majority's implied limitation on the scope of Section 1503, it erred in refusing to defer to the President's de termination that the prospect of billions of dollars in judgments would seriously undermine funding for the essential tasks of rebuilding and stabilizing Iraq.

B. The Acree majority indicated that questions re garding Section 1503's temporal application also weigh ed against construing it to reach Section 1605(a)(7). 370 F.3d at 56-57. But those concerns are misplaced. The majority believed that Section 1503's sunset provision would render inoperative Presidential Determination 2003-23 and revive Section 1605(a)(7). Id. at 57. But the phrase "make inapplicable" in the second proviso con notes a permanent effect of the President's action. See H.R. Conf. Rep. No. 337, 108th Cong., 1st Sess. 59 (2003) (stating, in connection with extending Section 1503's authorities, that Presidential Determination 2003-23 had made terrorism-related laws "permanently inapplicable to Iraq"). Moreover, Section 1503's sunset provision provided that the President's "authorities" under the provision would expire, not that the President's exercise of those authorities within the requisite period would cease to have legal effect. When Congress wishes to eliminate not only a grant of authority, but also the con sequences of any valid exercise of that authority, Con gress does so expressly. See, e.g., Department of De fense Appropriations Act, 2000, Pub. L. No. 106-79, § 9001(a) and (c), 113 Stat. 1283 (providing for expiration of waiver authority and separately providing that "any waiver previously issued * * * shall cease to apply," upon the occurrence of a specified condition).

Nor, contrary to the Acree majority's suggestion (see 370 F.3d at 56), is it surprising that the President's ex ercise of his Section 1503 authority with respect to Sec tion 1605(a)(7) would have an immediate effect on pend ing lawsuits against Iraq, in contrast to the terms of Section 1605(a)(7) itself, which provides that, when a country's designation is rescinded, courts retain juris diction over claims that accrued during the time a coun try was designated. 28 U.S.C. 1605(a)(7)(A). The Pres ident's exercise of his Section 1503 authority responded to an unprecedented situation in which the regime of a designated state sponsor of terrorism had been removed by United States-led military operations. Practically overnight, the foreign policy of the United States changed dramatically from imposing sanctions on the Hussein regime to fostering the creation of a new, stable Iraq. As this Court has recognized, the decision to af ford immunity to foreign sovereigns "reflects current political realities and relationships," and the courts therefore give effect "to the most recent such decision." Republic of Austria v. Altmann, 541 U.S. 677, 696 (2004). Given the seismic shift in the United States' po litical relationship with Iraq in early 2003, it is unre markable that the specific decision to restore Iraq's im munity, rather than subject the new Iraq to crushing liability in U.S. courts for the wrongs of the Hussein regime, would be given immediate effect with respect to existing and prospective claims notwithstanding the general rule in Section 1605(a)(7)(A). Cf. Libyan Claims Resolution Act, Pub. L. No. 110-301, § 5(a)(1), 122 Stat. 3000 (rendering Sections 1605(a)(7) and 1605A immedi ately inapplicable to Libya upon Secretary of State's certification of receipt of funds sufficient to pay certain pending claims).

C. To the extent there is any doubt whether Section 1503 encompasses Section 1605(a)(7), the President has made clear his judgment that it does. The President fully exercised his Section 1503 authority in Presidential Determination No. 2003-23, in which he made inapplica ble to Iraq FAA Section 620A "and any other provision of law that applies to countries that have supported ter rorism." 3 C.F.R. at 320. In his formal report to Con gress, the President explicitly stated his conclusion that both Section 1503 and the Presidential Determination encompass "28 U.S.C. 1605(a)(7)." 39 Weekly Comp. Pres. Doc. at 647-648. Indeed, the President specifically referred to only three provisions as among the "other provision[s] of law" rendered inapplicable by his deter mination: Section 1605(a)(7); the FSIA's attachment provision, 28 U.S.C. 1610; and Section 201 of TRIA, 116 Stat. 2337, which creates especially favorable rules for the execution of judgments issued under Section 1605(a)(7). 39 Weekly Comp. Pres. Doc. at 647-648.

Because Congress entrusted implementation of Sec tion 1503 to the President, and because the President has independent constitutional authority in the area of foreign affairs, the Acree majority erred in failing to accord any deference to his construction of that provi sion. The majority recognized that 28 U.S.C. 1605(a)(7) falls within the literal terms of EWSAA Section 1503, 370 F.3d at 52, and believed that the case presented "an exceedingly close question," id. at 51. In such circum stances, as then-Judge Roberts observed, well-estab lished principles of judicial deference to the Executive's construction of ambiguous statutes should make this "an easy case." Id. at 64 n.2 (concurring). The majority, however, gave no such deference to the President's con struction of Section 1503, apparently because there is some question in the District of Columbia Circuit as to "[t]he applicability of Chevron to presidential interpreta tions," as opposed to those made by his subordinates, which would undoubtedly have been entitled to defer ence. Ibid. (citing Chamber of Commerce v. Reich, 74 F.3d 1322, 1325 (D.C. Cir. 1996)). But there is no sound basis to refuse deference to the President's reasonable exercise of a statutory authority entrusted to him, espe cially in the foreign affairs context, where the President generally enjoys great leeway under our Constitution and laws. See Jama v. ICE, 543 U.S. 335, 348 (2005) (noting the Court's "customary policy of deference to the President in matters of foreign affairs"); Dames & Moore v. Regan, 453 U.S. 654, 668 (1981) (Presidential action in foreign affairs context, authorized by Con gress, "would be supported by the strongest of presump tions and the widest latitude of judicial interpretation") (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)).

D. The Court should grant the petition for a writ of certiorari to resolve the EWSAA's effect on the contin ued availability of Section 1605(a)(7) as a basis for juris diction over claims against Iraq. The EWSAA reflected the dramatic changes in the United States' foreign pol icy with respect to Iraq following the successful removal of the Hussein regime. The President determined that the threat of litigation seeking to hold post-Saddam Iraq liable for billions of dollars in damages attributable to Hussein's support of terrorism presented a grave threat to the reconstruction of Iraq and establishment of a new, stable government and society, which are critically im portant foreign policy interests of the United States. 39 Weekly Comp. Pres. Doc. at 647-648. Therefore, in the exercise of authority granted him by the plain language of Section 1503, the President rendered Section 1605(a)(7) inapplicable to Iraq. The Acree majority's holding that the President's action was ultra vires is contrary to the statute's plain text and fails to accord the President the great deference he is due in the exer cise of statutory authority conferred on him in connec tion with the conduct of the Nation's foreign affairs. Moreover, that decision threatens important national priorities with respect to the reconstruction of Iraq.

As demonstrated by the President's recent and ex traordinary decision to withhold his approval of the ini tial version of the entire NDAA because of Section 1083 of that bill, the significant threat posed to Iraq's stabil ity and redevelopment by terrorism-related lawsuits and enforcement actions has not diminished in the interven ing years since the Acree decision. See 43 Weekly Comp. Pres. at 1641. Indeed, numerous suits asserting billions of dollars in damages against Iraq from the Hussein era remain pending in light of the Acree deci sion. See Pet. 23 & n.6. Because the Acree plaintiffs' claims were dismissed on other grounds, the govern ment was not in a position to seek review of the major ity's erroneous construction of EWSAA in that litiga tion. The present case provides an appropriate opportu nity for the Court to review and correct the deeply flawed decision in Acree, because the District of Colum bia Circuit summarily resolved this case on the basis of Acree. Pet. App. 1a.1

II. THE NDAA HAS NO EFFECT ON THE COURTS' JURIS DICTION OVER RESPONDENTS' CLAIMS

A. The sole reason respondents give for denying cer tiorari is their contention that "Congress and the Presi dent have recognized the propriety of the Acree decision by establishing in federal law that § 1503 of the EWSAA of 2003 did not grant the President the authority to re move the jurisdiction of any court of the United States." Br. in Opp. 7. In support of that assertion, respondents cite (id. at 9) NDAA Section 1083(c)(4), which states that "[n]othing in section 1503 of [EWSAA] has ever autho rized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States." § 1083(c)(4), 122 Stat. 343. Respon dents' reliance on Section 1083(c)(4) is mistaken. Sec tion 1083(c)(4), which was adopted by a different Con gress five years after the President exercised his au thority under EWSAA Section 1503 and after the provi sion had expired, and which was immediately waived by the President, should be afforded no weight in interpret ing EWSAA Section 1503.

This Court has frequently explained that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 355 (1998) (quota tion marks omitted); see Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990); United States v. Southwestern Cable Co., 392 U.S. 157, 170 (1968). More over, Section 1083(c)(4) does not create or modify any substantive law because the authorities contained in Section 1503 expired on September 30, 2005. EWSAA, 117 Stat. 579 ("authorities" expire on September 30, 2004, unless extended); Act of Nov. 6, 2003, Pub. L. No. 108-106, § 2204(2), 117 Stat. 1230 (extending the authori ties contained in Section 1503 to September 30, 2005). Section 1083(c)(4) therefore is merely a statement through which the 110th Congress sought to give its gloss on a no-longer-effective statute enacted five years earlier by a different Congress. But even assuming that Section 1083(c)(4) as conceived had some substantive effect, it does not "establish[] * * * federal law" (Br. in Opp. 7) because it applies only to Iraq and the Presi dent immediately waived it, along with the rest of Sec tion 1083, as to Iraq.

B. In its reply brief (at 9), Iraq urges the Court to consider as well whether the courts lack jurisdiction over respondents' claims for the independent reason that Section 1083 of the NDAA, combined with the Presi dent's waiver under that provision, deprived the courts of jurisdiction. The NDAA, however, has no effect on the courts' jurisdiction over respondents' claims. For the reasons stated above, the President's exercise of his authority under EWSAA Section 1503 had already per manently rendered Section 1605(a)(7) inapplicable to Iraq. To the extent NDAA Section 1083 purported to allow those claims to be asserted against Iraq under the newly enacted Section 1605A, the President's exercise of his waiver authority under Section 1083(d) precludes that course as well. See Presidential Determination No. 2008-9, 73 Fed. Reg. at 6571.

Because of the President's waiver, NDAA Section 1083 does not affect the legal status quo with regard to Iraq in place prior to the NDAA's enactment in any way-that is, Section 1083 has no effect on the availabil ity vel non of Section 1605(a)(7) jurisdiction over respon dents' claims against Iraq. The President immediately waived the application to Iraq of "all provisions" of Sec tion 1083 (necessarily including both its adoption of the new 28 U.S.C. 1605A and its repeal of 28 U.S.C. 1605(a)(7)), pursuant to the authority specially granted to the President in response to his withholding of his consent to H.R. 1585. See Presidential Determination No. 2008-9, 73 Fed. Reg. at 6571 ("waiv[ing] all provi sions of section 1083 of the Act with respect to Iraq"). The President and Members of Congress who were the leading proponents of the NDAA reached a compromise to enable the rapid enactment of the NDAA. Under the compromise, it was understood that the President would exercise his waiver authority under Section 1083(d), and claims against Iraq would be left in the same position as they were in before the NDAA first passed Congress. The NDAA contained hundreds of pages of other time-sensitive national security and defense authorities. The full effect of Section 1083 on Iraq received high- level scrutiny only very late in the process of passing and considering whether to sign into law H.R. 1585. 43 Weekly Comp. Pres. Doc. at 1641 (Section 1083's "full impact on Iraq and on our relationship with Iraq has become apparent only in recent days. Members of my Administration are working with Members of Congress to fix this flawed provision as soon as possible after the Congress returns." (emphases added)). The compromise permitted the expeditious passage of the broader NDAA, days after the return of Congress following the President's disapproval of H.R. 1585, without the delay that would have accompanied consideration of whether or how to adjust the legal status quo with regard to Iraq.

C. The question of the NDAA's effect on respon dents' lawsuit was not addressed by the court of appeals in this case because the NDAA was enacted after the court of appeals' decision. In Simon v. Republic of Iraq, 529 F.3d 1187 (D.C. Cir. 2008), petition for cert. pend ing, No. 08-539 (filed Oct. 22, 2008), the court of appeals did address that issue and held, as a matter of statutory construction, that the NDAA's repeal of Section 1605(a)(7) was not intended to deprive the courts of ju risdiction over pending cases. See id. at 1192-1193 (rely ing on NDAA § 1083(c)(1), 122 Stat. 342, which provides that Section 1083 applies only to "any claim arising un der section 1605A," and NDAA 1083(c)(3), 122 Stat. 343, which permits plaintiffs with pending 1605(a)(7) cases to refile a "[r]elated action[]" within 60 days of the later of "the date of the entry of judgment in the original action" or the date of the NDAA's enactment). For the reasons stated above, however, whether the Simon court cor rectly resolved the applicability of NDAA Section 1083 to pending cases as a general matter (e.g., for suits against other defendant countries) is irrelevant with respect to this suit or any other against Iraq, because the President waived Section 1083 in its entirety with respect to Iraq.

* * * * *

As discussed in Part I, above, when Congress en acted the NDAA in 2008, the courts had already been deprived of jurisdiction over respondents' claims by the President's 2003 exercise of his authority under the EWSAA. Congress's enactment and the President's immediate waiver of NDAA Section 1083 with respect to Iraq ultimately have no effect on that issue. The court of appeals' erroneous invalidation of the President's ac tion under EWSAA Section 1503 warrants this Court's review because it exposes Iraq to potentially "crushing liability for the actions of its renounced predecessor," Acree, 370 F.3d at 61 (Roberts, J., concurring), and therefore is of exceptional importance to the foreign relations of the United States and the imperative foreign policy objective of fostering a stable, democratic govern ment in Iraq.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

GREGORY G. GARRE
Solicitor General
Counsel of Record
GREGORY G. KATSAS
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
DOUGLAS HALLWARD-DRIEMEIER
Assistant to the Solicitor
General
DOUGLAS N. LETTER
LEWIS S. YELIN
Attorneys

JOHN B. BELLINGER, III
Legal Adviser
Department of State
Washington, D.C. 20520
ROBERT F. HOYT
General Counsel
Department of the Treasury

DECEMBER 2008

1 There is no circuit conflict on the question presented, and ordinarily that might counsel against certiorari. In view of the importance of the exceptional question presented and the grave error in the Acree court's analysis, however, the United States believes that certiorari is warrant ed at this time.

 

APPENDIX

 

Emergency Wartime Supplemental Appropriations Act, 2003, Pub. L. No. 108-11, 117 Stat. 559, 579 (2003)

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SEC. 1503. The President may suspend the applica tion of any provision of the Iraq Sanctions Act of 1990: Provided, That nothing in this section shall affect the applicability of the Iran-Iraq Arms Non-Proliferation Act of 1992 (Public Law 102-484), except that such Act shall not apply to humanitarian assistance and supplies: Provided further, That the President may make inappli cable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism: Pro vided further, That military equipment, as defined by title XVI, section 1608(1)(A) of Public Law 102-484, shall not be exported under the authority of this section: Pro vided further, That section 307 of the Foreign Assis tance Act of 1961 shall not apply with respect to pro grams of international organizations for Iraq: Provided further, That provisions of law that direct the United States Government to vote against or oppose loans or other uses of funds, including for financial or technical assistance, in international financial institutions for Iraq shall not be construed as applying to Iraq: Provided further, That the President shall submit a notification 5 days prior to exercising any of the authorities described in this section to the Committee on Appropriations of each House of the Congress, the Committee on Foreign Relations of the Senate, and the Committee on Interna tional Relations of the House of Representatives: Pro vided further, That not more than 60 days after enact

ment of this Act and every 90 days thereafter the Presi dent shall submit a report to the Committee on Appro priations of each House of the Congress, the Committee on Foreign Relations of the Senate, and the Committee on International Relations of the House of Representa tives containing a summary of all licenses approved for export to Iraq of any item on the Commerce Control List contained in the Export Administration Regula tions, 15 CFR Part 774, Supplement 1, including identifi cation of end users of such items: Provided further, That the authorities contained in this section shall ex pire on September 30, 2004, or on the date of enactment of a subsequent Act authorizing assistance for Iraq and that specifically amends, repeals or otherwise makes inapplicable the authorities of this section, whichever occurs first.