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For 17 former American prisoners of war, brutally tortured during the 1991 Gulf War, their eye-popping $959 million judgment against Iraq last year was hard-won and deserved. But a week after Americans remembered their veterans over the recent Memorial Day weekend, these veterans were reeling from the loss of the judgment with the stroke of an appellate court keyboard. The POWs had jumped through all of the hoops required by the complex law surrounding lawsuits against foreign nations. They had made difficult service of process, had offered to arbitrate their claims and even had fought off the Bush administration’s late attempt — a motion to intervene two weeks after the judgment was entered — to use a federal law for rebuilding Iraq to eliminate their suit. But a three-judge panel of the U.S. Circuit Court for the District of Columbia, acting on an appeal by the Bush administration, dismissed the lawsuit, not because the administration’s argument was right, but because the POWs had failed to state a cause of action. Acree v. Republic of Iraq, No. 03-5232 Failure to state a cause of action. No remand. No opportunity, as often given, to amend the complaint and start again. “They just nuked it,” said Tony Onorato, who, with Stephen Fennell and Stewart Baker of D.C.’s Steptoe & Johnson and international law scholar John Norton Moore of the University of Virginia School of Law, represented the POWs and family members in the suit. The panel basically reiterated what it had said last January in a case decided after the Acree judgment: Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, said Elizabeth Wydra, supervising attorney of the appellate litigation clinic at Georgetown University Law Center. In Cicippio-Puleo, Wydra said, the court held that neither the terrorism exception to the Foreign Sovereign Immunities Act (FSIA) nor the 1996 Flatow Amendment to the act provides a cause of action against a foreign state — the two principal bases for the Acree lawsuit. “The Acree case shows that the decade-long way of litigating these cases by using the Flatow Amendment and the terrorism exception is no longer a viable option against a foreign state,” added Wydra, whose clinic was appointed by the D.C. Circuit in Cicippio-Puleo to file an amicus brief supporting the district court. But to some in the small bar of lawyers who have built practices out of pursuing Iraq, Libya, Iran and others for the atrocities against Americans, the Acree decision was political. “I think the panel — putting aside its reasons — was very deferential to those two branches of government that have been proactively engaged in Iraqi affairs since the invasion last year,” said Stuart Newberger of Washington’s Crowell & Moring. “I don’t necessarily agree with that, but I think that’s the explanation. This was an Iraq decision.” Parts of the opinion show that the panel was concerned about the case’s foreign policy implications and effect on the rebuilding of Iraq, agreed Daniel Wolf of Washington’s Sprenger & Lang. “I think the court bent over backwards to dismiss the cause of action,” he said. “The only surprising thing about the decision is the failure to give the plaintiffs an opportunity to identify alternative causes of action on remand.” The panel issued an order two days before oral argument directing the Acree plaintiffs to be prepared to discuss Cicippio-Puleo. A cause of action issue hadn’t been raised before that by anyone, including the U.S., and hadn’t been briefed. “The court’s order did not ask them to identify alternative causes of action. They didn’t and I’m sure they feel bushwhacked,” said Wolf. “I’m sure if they had been told to choose or lose, they would have come up with something.” The POWs’ suit against Iraq and Saddam Hussein had relied on the FSIA terrorism exception, Sec. 1605(a)(7), which eliminates immunity for governments designated as state sponsors of terrorism at the time of the alleged torture. It also relied on the Flatow Amendment, which provides a cause of action against an “official, employee or agent of a foreign state designated as a state sponsor of terrorism” for personal injury or death. “And just as every single FSIA case ever brought, we specifically pled torts in the alternative: assault, battery and intentional infliction of emotional distress,” said Steptoe’s Onorato. “But basically [Judge Harry] Edwards says in his opinion, �You need to have given me more.’ He said we should have known this is what he wanted. But he said that after the fact.” Edwards said the POWs’ counsel at oral argument “gestured again toward generic common law torts, but generic common law cannot be the source of a federal cause of action.” He said that the lawyers failed to identify a particular cause of action arising out of a specific source of law. Moore said there was a miscommunication by the court on cause of action as opposed to choice of law. “It’s absolutely clear assault, battery and intentional infliction of mental distress are causes of action and an entire range of statutory law from the states are other strong bases of causes of action,” he said. “The issues that do arise after Cicippio-Puleo may be choice of law. Is it D.C. law or some other law? But just as in Cicippio-Puleo – and remember our complaint, indeed our entire action, were all determined before Cicippio-Puleo – one would have thought in any uncertainty over this, it would be remanded to the district court.” Moore echoed the concern voiced by many lawyers handling these types of cases that the notice and opportunity provided by the Acree panel to address the determining question was inadequate. But he also said it was important not to lose sight of the suit’s objective. “This is a critical issue in the protection of our POWs from torture in the future,” he explained. “It becomes even more so in light of this very unfortunate Iraq prison-abuse scandal. The Geneva Convention is very clear: Under Article 131, you cannot absolve a torturing state of any liability.” Congress may want to examine the statutory scheme for bringing these suits in light of Acree and Cicippio-Puleo, said Georgetown’s Steven Goldblatt, adding that scheme has many “question marks.” “The court is insisting on a very clear statement of who is liable and under what circumstances, particularly if the State Department is opposing the suit,” he said. “[P]eople should know where they can recover and where they can’t so they don’t end up with false hopes.” Marcia Coyle is a reporter for The National Law Journal , a Recorder affiliate based in New York.

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