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December 28, 2007

Bush To Wield Another Veto

President Bush has announced that he will veto the National Defense Authorization Act, DoD's spending bill, because it contains an amendment to the Foreign Sovereign Immunities Act which would make things difficult for Iraq's government. He gets credit for focusing on our immediate needs, but the Administration's reasoning is a little difficult to square with the greater War on Terror. The White House reasons:

One provision in the bill - section 1083 - would significantly amend current law (the Foreign Sovereign Immunities Act) in ways that would imperil Iraqi assets held in the United States, including reconstruction and central bank funds. If enacted, Section 1083 [of the NDAA] would permit plaintiffs' lawyers immediately to freeze Iraqi funds and would expose Iraq to massive liability in lawsuits concerning the misdeeds of the Saddam Hussein regime. The new democratic government of Iraq, during this crucial period of reconstruction, cannot afford to have its funds entangled in such lawsuits in the United States. Once in place, the restrictions on Iraq's funds that could result from the bill could take months to lift, and thus Section 1083 cannot become law even for a short period of time.

The Foreign Sovereign Immunities Act generally provides immunity from suits in U.S. courts for foreign states. However, FSIA contains several exceptions to the general protection, for example, waiver by the state or suits for commercial activity (as opposed to official acts of state). The defense authorization would have added another exception for state sponsors of terrorism who are sued in U.S. courts. The text of the bill can be found here.

Generally, I think that allowing such suits is a good idea. Section 1083 is pretty specific about who can take advantage of the exception: U.S. nationals, or members of the armed forces, or employees of the U.S. government, for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support. The injury or death had to be caused by a state official and the state must have been designated a "state sponsor of terrorism."

Unfortunately, the amended FSIA, combined with a 2004 Supreme Court case, which held that FSIA can apply retroactively, would allow suits against Iraq's current government for Saddam's atrocities. That's the point of FSIA, it applies against the state, regardless of the current government. President Bush doesn't want to subject the slowly developing Iraqi government to this kind of liability.

And that makes what would otherwise be a new tool for private individuals to wield against foreign sponsors of terrorism which have injured them inconvenient at this time. The White House says it wants to work with Congress to protect Iraqi funds in the U.S. and pass an acceptable form of the act in January.

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posted by Gabriel Malor at 02:04 PM

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