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Two years ago, a D.C. federal judge awarded 17 American POWs and their families nearly $1 billion in damages for the torture they endured under the Saddam Hussein regime during the 1990-91 Gulf War. But in 2003, the Bush administration, which had just begun fighting a new war with Iraq, intervened, claiming that the president should be able to shield Iraq from civil judgments. Last year, a three-judge panel for the U.S. Court of Appeals for the D.C. Circuit sided with the Bush administration and threw out the judgment and dismissed the case. The court acknowledged that the POWs “endured this suffering while acting in service to their country,” but said “[n]evertheless, we cannot ignore … that [the POWs] were not legally entitled to this judgment.” The POWs are now appealing Acree v. Republic of Iraq and United States of America to the Supreme Court, which will decide at its Friday conference whether to hear the case. “I experienced torture, mock executions, confinement in a filthy environment,” said a visibly emotional Col. Clifford Acree at an April 7 press conference. Acree spent 47 days in captivity after his aircraft was shot down the first day of the war. Politicians across the political spectrum, including Sens. George Allen, R-Va., Tom Harkin, D-Iowa, and Patty Murray, D-Wash., have rallied around the POWs. The Washington Legal Foundation, a conservative advocacy group that often sides with the administration, has filed an amicus brief on behalf of the lawmakers and itself in support of the POWs. Two other amicus briefs have also been filed on the POWs’ behalf — one from the Center for Justice and Accountability and International Law Scholars, and another from St. Mary’s University School of Law Center for Terrorism Law and others. No amicus briefs have been filed on behalf of the administration. Jeffrey Addicott, director of the St. Mary’s University Center for Terrorism Law in San Antonio, Texas, writes in his brief that the D.C. Circuit decision “sends a message to United States military personnel that while they protect their country, their country will not protect them.” Lawyers and advocates for the POWs argue that this is a particularly important case because a jurisdictional provision that makes it unlikely that such cases would be brought elsewhere in essence leaves the D.C. Circuit as the only legal avenue for victims of state-sponsored terror. The Acree ruling as it now stands, they say, precludes other torture victims from filing suit against a foreign state. Although highly politicized, the case boils down to a technical legal question — whether the Foreign Sovereign Immunities Act provides the POWs with a cause of action to sue Iraq. Under the act, foreign states are immune from suit in American courts. In 1996, Congress passed a law allowing civil suits in the United States when “money damages are sought against a foreign state for personal injury or death that was caused by an act of torture” and when the foreign state is designated a “state sponsor of terror.” Iraq was declared a state sponsor of terror in 1990 after its invasion of Kuwait. The Flatow Amendment, passed five months after the terrorism exception and named for U.S. citizen Alissa Flatow, who died as a result of a terrorist bombing in Israel, also created a right to bring suit against “officials, employees, and agents of foreign states for” such things as torture. Both the terrorism exception and the Flatow Amendment served as the basis for the POWs’ original suit against Iraq. But the D.C. Circuit said that neither provision allowed for a cause of action against Iraq. The D.C. Circuit ruled that the POWs failed to provide a specific state or federal cause of action, apart from the Foreign Sovereign Immunities exception. The court also said that under the Flatow Amendment, the POWs could not sue the state of Iraq, but only the officials, employees, or agents of Iraq in their personal capacity. Since the POWs had failed to do so, the court rejected their claim. In their appeal to the Supreme Court, the POWs, who are being represented by lawyers from D.C.’s Steptoe & Johnson and by University of Virginia law professor John Norton Moore, claim they can sue Iraq under the Foreign Sovereign Immunities Act. In particular, the lawyers cite a section of the law that says that where a foreign state can be sued “the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” (Emphasis in the original.) Lawyers say that through this provision, plaintiffs are able to bring state common law personal injury claims and that the “shall be liable” gives the POWs a cause of action. “It simply makes no sense that Congress would have given jurisdiction to federal courts to hear cases on state-sponsored terror but not have provided causes of action,” says Matthew Yeo, a partner at Steptoe & Johnson. “Congress understood that there already were causes of action… . You do not need a separate federal cause of action. That is the critical error [of the D.C. Circuit].” Lawyers for the POWs also argue that a federal common law action for torture exists. The Bush administration argues that the POWs failed to provide a “specific and concrete source of law” for the suit. The administration also argues that the Emergency Wartime Supplemental Appropriations Act of April 2003 gave the president the authority to have the suit against Iraq dismissed. Acting Solicitor General Paul Clement writes in his brief for the government that the law allowing suits against foreign states “present[s] obstacles … to funding for the new Iraqi Government” and that seizing Iraqi assets “would hinder crucial foreign policy objectives.” Clement says that suspension of the suit does not mean the POWs will go uncompensated. “[T]he President may choose to espouse petitioners’ claims through diplomatic means,” Clement writes in his brief. Yeo, the lawyer for the POWs, says the case has never been about the assets. “It’s about accountability and adhering to the principle that we will not absolve countries for violations of the Geneva Convention,” he says. He notes that there is a long line of individuals and companies seeking recompense from Iraq. “At some point, there’s going to be a claims reconciliation process that sorts this out,” Yeo says. “All we’re saying is that these plaintiffs should be allowed to get in line with everyone else.” This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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