Jonathan Adler notes the DC Circuit's Tuesday release of Simon v. Iraq, a case where US servicemen alleged that Saddam Hussein's Iraqi intelligence services had taken them hostage and tortured them during Gulf War I. The court concluded (in contrast to earlier, similar lawsuits) that the suit could go forwards.
The plaintiffs rely on an exception to the Foreign Sovereign Immunity Act passed as part of the Anti-Terrorism & Effective Death Penalty Act of 1995, which holds that countries on the State Department's list of state sponsors of terrorism are not immune from suit for certain kinda of offenses committed against American citizens. Iraq was on the list from 1990 until after the overthrow of the Hussein regime.
The exception was amended in the National Defense Authorization Act for FY 2008. The amendment provided, among other things, an amendment to the terrorism exception by explicitly granting a federal cause of action to plaintiffs, which the DC Circuit had not found in prior cases. It also newly permitted President Bush to waive the relevant sections of the NDAA with respect to Iraq.
The executive attempted to do so here, but the court concluded that because the plaintiffs had sued Iraq before the NDAA amended FSIA, the old FSIA provisions controlled the suit. The court then found the plaintiffs had a cause of action and permitted the plaintiffs’ suit to go forwards.
Iraq will almost certainly petition for certiorari in the United States Supreme Court, so any jury trial is almost certainly more than a year away. Nonetheless, for the moment, the court's decision makes it much easier for American POWs who suffered war crimes during the Gulf War conflict to recover damages.
Full disclosure: As a law school student, the author assisted attorneys for a different group of tortured POW's filing suit under FSIA.
