High Court Backs Iraq’s Sovereign Immunity

(CN) - Former President George W. Bush stripped U.S. courts of jurisdiction over certain claims against Iraq by waiving the now-repealed terrorism exception to foreign sovereign immunity, the Supreme Court ruled unanimously on Monday.

Congress passed a law in 1996 denying sovereign immunity to states that sponsored terrorism. At the time, Iraq was considered "a country which has repeatedly provided support for acts of international terrorism."

After the United States invaded and occupied Iraq in March 2003, Congress passed the Emergency Wartime Supplemental Appropriations Act (EWSAA), which authorized the president to make the terrorism exception "inapplicable with respect to Iraq." This had the effect of restoring sovereign immunity to Iraq.

But in Acree v. Republic of Iraq (2004), the D.C. Circuit determined that the president did not have the power to waive the terrorism exception for claims arising from acts that occurred when Iraq was designated a terrorism sponsor.

The Supreme Court justices agreed to clarify the issue by taking up two cases accusing Iraqi officials of mistreating U.S. soldiers and citizens before and after the 1991 Gulf War.

The district court had refused to dismiss either case, citing the D.C. Circuit's holding in Acree.

The D.C. Circuit had also allowed the case to proceed, but on different grounds. It relied on the National Defense Authorization Act (NDAA), passed in 2008, which repealed the terrorism exception and replaced it with a new, similar exception. The NDAA declared that nothing in the EWSAA stripped U.S. courts of their jurisdiction in claims that fell under the terrorism exception to sovereign immunity.

However, former President George W. Bush refused to sign the bill without a waiver provision, saying it "would imperil billions of dollars of Iraqi assets at a crucial juncture in that nation's reconstruction efforts."

A waiver provision was added, and the bill passed.

The D.C. Circuit ultimately found that the 2008 law "leaves intact our jurisdiction over cases ... that were pending against Iraq when Congress enacted the NDAA."

The Supreme Court justices disagreed, rejecting the D.C. Circuit's narrow interpretation of the law in Acree.

"When the President exercised his authority to make inapplicable with respect to Iraq all provisions of law that apply to countries that have supported terrorism, the exception to foreign sovereign immunity for state sponsors of terrorism became inoperative as against Iraq," Justice Scalia wrote.

The justices said federal courts lost jurisdiction in May 2003, when the president made the terrorism exception inapplicable to Iraq.

"At that point, immunity kicked back in and the cases ought to have been dismissed," Scalia concluded.

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