WASHINGTON (CN) - The Supreme Court heard arguments Monday on whether U.S. courts have jurisdiction over Iraq and suits against that nation for torture committed under the Saddam Hussein regime.
Representing the United States, Douglas Driemeier said a finding of jurisdiction over Iraq would harm the national interest. "The threat of billions of dollars of judgment against Iraq constitutes an immediate threat to the foreign policy of the United States," he said.
Justice Ruth Bader Ginsburg countered that a judgment against Iraq would not constitute a real threat because the U.S. wouldn't have access to Iraq's assets. "It ultimately doesn't matter," she said, "There is no course of action."
Driemeier replied that the assets could be deducted from shipments to Iraq from the U.S.
American citizens Roberto Alvarez, Nabil Seyam, and Bob Simon claimed they were tortured by the Iraqi military during the Second Persian Gulf War, and that they were used as human shields in military buildings to deter coalition forces from bombing the buildings.
In addition, the children of two American reporters who were abducted and imprisoned by Iraqi security guards sued for the emotional distress they endured from their fathers' wrongful imprisonment. They said the two reporters were in Kuwait and had not crossed into Iraq.
Taken together, lawsuits against Iraq seek more than $3 billion in damages.
But the focus of the hearing, packed with reporters and lawyers, was whether the U.S. courts currently have jurisdiction over such suits or whether Iraq is entitled to sovereign immunity.
Thomas Goldstein, from Goldstein and Howe, represents those seeking damages. He argued the U.S. courts can decide this case because Iraq does not fall under the Foreign Sovereign Immunities Act of 1976, which grants sovereign immunities to other governments.
Governments considered by the U.S. to sponsor terrorism such as Iran, Sudan, and Syria are not protected by the immunities act, said Goldstein.
The history on the issue is that almost two decades ago, Iraq lost its sovereign immunity when it invaded Kuwait.
Then in 2003, Congress gave President George W. Bush the power to "make any other provision of law that applies to countries that have supported terrorism" when it passed the Emergency Wartime Supplemental Appropriations Act.
President Bush promptly took that apparent authority to give Iraq sovereign immunity from U.S. courts, and he took Iraq off the list of state sponsors of terrorism the following year.
But Goldstein argued that Bush did not have the authority to grant sovereign immunity to Iraq. Goldstein said "any other provision" doesn't mean "every provision."
He said the 2003 Congressional act only allowed the President to remove restrictions that would bar the U.S. from funding or aiding an earlier sponsor of terror, but it did not allow the president to grant sovereign immunity.
"We have a more modest reading," he said.
In an interview, Michael Granne, a visiting assistant professor at Seton Hall Law School, commented that Goldstein's interpretation is partially supported by Acree v. Republic of Iraq in 2004, where the D.C. Circuit held that Congress did not intend for the President to grant Iraq sovereign immunity when it passed the appropriations act.
However, Granne noted, Chief Justice John Roberts, then an appellate judge on the Acree panel, said that the powers bestowed on the President in the appropriations act were broad enough to allow President Bush to grant sovereign immunity to Iraq.
During oral arguments on Monday, it was Justice Ginsburg who asked the most questions. She noted that the President traditionally had the power to grant sovereign immunity until 1976, and said that it now seems unclear. "Why shouldn't we restore to the President the power he once had?" she asked.
Representing the Republic of Iraq, Jonathan Franklin, with Fulbright & Jaworski, agreed, saying the court has traditionally given the executive leeway, and that it is particularly appropriate in this case, because the U.S. role in supporting Iraq "would be seriously disrupted if Iraq were not granted sovereignty."
He argued that Iraq is sovereign because it is no longer a terrorism state, and that the United States has no jurisdiction to decide this case.
"Iraq is a very strong ally against terrorism, not a supporter of it," he said. "This is the way friendly allies ought to be addressed."
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