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Washington-The long shadow of Iraq’s Abu Ghraib prison has reached the U.S. Supreme Court-not in the context of American soldiers abusing Iraqis but of Iraqis abusing American soldiers. Thirteen of 17 American POWs from the 1991 Gulf War were tortured in Abu Ghraib. The 17 POWs and their families are asking the justices to review a federal appellate ruling last year that erased a near $1 billion damages award to them. Acree v. Republic of Iraq and United States of America, No. 04-820. Winning high court review is always a daunting battle. But to these 17 petitioners-who were beaten, starved and shocked with electricity-the longest of long shots is nothing new. (The petition is scheduled for the justices’ April 22 conference.) They brought their suit three years ago under 1996 amendments to the Foreign Sovereign Immunities Act (FSIA), which generally immunizes foreign nations from suit. The amendments permitted American victims of terrorist acts to sue in U.S. courts for money damages from foreign states designated as state sponsors of terrorism by the executive branch. FSIA suits often have important foreign policy implications, and where they clash with what a particular president believes to be U.S. interests, the government steps in as a formidable opponent. The 17 Gulf War POWs suffered a double blow last year. The executive branch intervened after the judgment was entered to argue that the district court had no jurisdiction because the president, pursuant to the 2003 Emergency Wartime Supplemental Appropriations Act, had made the 1996 amendments to FSIA inapplicable to Iraq. The U.S. Circuit Court for the District of Columbia, virtually the only venue for this type of litigation, dismissed the suit, holding that the POWs failed to state a cause of action. “The underlying issue here is deterrence and punishment, to hold accountable state sponsors of terrorism,” said Paul Kamenar of the Washington Legal Foundation, which has supported the POWs throughout the litigation. The FSIA was signed by the president and it is essentially the policy of the United States. You can’t pick and choose when you want the law to have effect. The law is the law.” When the POWs’ lawyers at Washington’s Steptoe & Johnson filed suit, they had what they thought looked like the perfect FSIA case: The POWs fit the definition of victims of terrorism; Iraq was truly a state sponsor of terrorism; there was a large pool of Iraqi assets in the U.S. available to pay an award; and the case was a righteous one. By the time of judgment, the U.S. had gone to war against Iraq, and the government had frozen Iraqi assets and designated that they be used for rebuilding that country. After rejecting the government’s argument, the circuit panel applied a precedent, decided just five months before the Acree judgment, holding that the terrorism exception to FSIA does not provide a cause of action against foreign states. The same precedent also held that the so-called Flatow Amendment to FSIA, which provides a cause of action against an official, employee or agent of a foreign state acting within the scope of employment, does not afford a cause of action against a foreign state itself. Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004). The POWs had relied on both for their cause of action. “I think the D.C. Circuit thinks there is a requirement for a distinct federal cause of action in order for these cases to go forward and the cause of action is not the same as, for example, state law tort claims,” said Steptoe’s Matthew Yeo, who along with Stewart A. Baker, is counsel to the POWs. And that’s wrong, he said, arguing that FSIA Section 1606 creates a cause of action against foreign states that includes common law torts. The Flatow Amendment also creates a cause of action that runs against terrorist states under ordinary agency principles of respondeat superior, he said. But the POWs’ best hope, said some legal scholars, may be their argument that the D.C. Circuit ruling is contrary to the Supreme Court’s decision last term in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004). Sosa, decided after Acree, held that the Alien Tort Statute is not just a grant of jurisdiction but allows suits alleging specific, verifiable violations of international law, such as torture claims. William J. Aceves of California Western School of Law, who filed an amicus brief on behalf of 21 international law scholars, said: “If the federal courts have this inherent power to recognize causes of action for serious violations of international law, that notion shouldn’t be limited to Alien Tort Statute litigation. Using the Sosa framework, we can presume Congress intended FSIA to open U.S. courts and those courts would have authority under their traditional common law powers.” The government argues again lack of subject-matter jurisdiction. It also contends that Congress “acted carefully” in amending FSIA, “taking certain steps to assist victims of state-sponsored terrorism while not taking others.” The major step not taken, said the government in its opposition brief, was creating a cause of action against foreign states. And, the government argues, “Although petitioners maintain that they have viable state-law claims, in none of their filings in this case-including their petition to this Court-have petitioners identified any specific state or foreign law that could serve as the basis for Iraq’s liability in this case.” Legislation has been introduced in the House to pay the Acree petitioners $17 million, but the bill is viewed as much of a long shot as high court review. “The problem here is the D.C. Circuit has shown unremitting hostility toward this type of litigation,” said Yeo. “I really don’t think U.S. citizens who are victims of terror should have to go up to the Hill to get a special appropriation just because the D.C. Circuit refuses to do what Congress told them to do. That’s what the court needs to fix here.”

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