Legal Resources

In 1996, Congress amended the Foreign Sovereign Immunities Act (FSIA) to permit lawsuits against countries on the State Department's "State Sponsors of Terrorism" list, which, until 2004, included Iraq, Iran, Syria, Libya, North Korea, Cuba and Sudan. In short, American citizens murdered, tortured or kidnapped by officials of a country on the List when the crimes occurred, or by terrorists supported by the government of one of those countries, could seek to hold the perpetrators accountable in U.S. courts.

"International terrorism," Congressman Jon Fox of Pennsylvania said at the time of the 1996 amendment, "poses a grave threat to the interests and security of the United States both at home and abroad. Outlaw states continue to serve as sponsors and promoters of this reprehensible activity by providing a safe haven, terrorist training and weapons. This legislation will make those states responsible for their actions and the actions of those they support in their terrorist efforts."

Since 1996, Congress has repeatedly passed legislation supporting the victims' right to access the frozen assets of the terrorist state so that the actual wrongdoers pay. This only makes sense. In contrast, both the Clinton and Bush administrations have opposed permitting access to blocked assets and have fought American victims in court, making it nearly impossible to prevail.

Although a federal judge ruled in favor of the tortured Gulf War POWs in July 2003, the Justice Department won a court ruling shortly thereafter that prohibited the POWs from collecting on their judgment from Iraqi assets. The Bush Administration in March 2003 had removed all the assets from the frozen assets fund and dedicated them to rebuilding Iraq, which effectively undercut Congress's plan to make terrorists like Saddam pay for their crimes.

Even worse, the Justice Department went to court after the POWs won in an effort to erase the judgment from the books and take away the public recognition of the suffering the POWs endured in the service of the United States. Ultimately, the Court of Appeals for the D.C. Circuit took up an argument never raised or argued by anyone, and decided that it would vacate the judgment on those never-before considered grounds. Further, it took this action because case involved a judgment “against a foreign government whose present and future stability has become a central preoccupation of the United States’ foreign policy,” revealing that its decision to vacate the judgment was simply a judicial foray into foreign policy. In so doing, it deprived tortured servicemen their opportunity to hold their torturers accountable and of the ability to curb the future torture of American POWs.

At this point, it is up to the Supreme Court to right this wrong.

Resource Set I:
The July 7, 2003 decision in Acree v. Republic of Iraq, finding that Saddam Hussein, Iraq, and the Iraqi Intelligence Service are liable for the torture of the American POWs, and assessing substantial damages as a way to send a message that: "Because of [the] inducements to use torture, there must be a premium on protecting POWs. POWs are uniquely disadvantaged and deterring torture of POWs should be of the highest priority."

Further, the court wrote, "[p]unitive damages are particularly appropriate in seeking to deter terrorist states from engaging in the heinous acts," and, "[c]reating incentives for the agencies and instrumentalities of terrorist nations to comply with their obligations not to torture POWs serves the highest public purpose. Plaintiffs in this case not only seek to obtain appropriate recompense for their own injuries but also to take actions which will deter others in the future from torturing American POWs."

Acree v. Republic of Iraq

Resource Set II:
Included here are documents relating to the blocking of the POWs' access to the Iraqi frozen assets. The Court of Appeals for the DC Circuit affirmed the district court's ruling, but differed in its reasoning, essentially holding that when the President confiscated and vested the assets on March 20, 2003, the money "became" the property of the United States and ceased to be assets of Iraq, a terrorist state, for purposes of satisfying the judgment.

Acree v. Snow, district court opinion

Snow's Memo in Opposition

Memo in Support of Acree's Cross-Motion

Resource Set III:
Included here is the Justice Department's motion to intervene in the case and its motion to vacate. On August 6, 2003, the district court ruled against the Justice Department. The DOJ had argued that the existence of the judgment would hamper the rebuilding effort. Judge Roberts called this attack "meritless," and noted that "the contrast between the behavior of the autocratic regime under Saddam Hussein which resulted in the adjudication of liability in this case and that of a democratic government which does not engage in torture could benefit the United States' efforts to promote the new government in Iraq."

Also, the court wrote that the "United States did not move to intervene in this case until after plaintiffs ... attempt to satisfy their judgment from seized Iraqi assets" and suggested that this could be viewed as retaliatory against the POWs.

The United States then appealed.

August 6, 2003 Order denying the United States' Motion to Intervene

POWs' Opposition to Intervention

Government Motion to Vacate

Government Motion to Intervene

On December 29, 2003, the Justice Department filed its opening brief in its appeal, asking again that the POWs' final judgment for torture be erased. The appeal argues, among other things, that the courts have had their jurisdiction retroactively taken away (by way of a provision that says absolutely nothing to that effect), and most strikingly, that the President's power to settle foreign policy disputes "with or without" the consent of U.S. citizens means that we should assist Iraq at the expense of accounting for the torture the POWs endured (despite the POWs' final judgment and the U.S.' binding treaty commitment under the Geneva Convention not to absolve another country for grave breaches of that Convention, such as torture of POWs).

DOJ appeal brief

On January 28, 2004, the POWs filed their brief, emphasizing the serious constitutional issues at stake. The government's arguments seek to expand Presidential powers far beyond the limited power granted by Congress. This misuse of authority is unlawful and unfair, and the POWs ask the Court to allow their judgment to stand.

POW Brief

On February 11, 2004, the Washington Legal Foundation files an amicus brief on behalf of Members of Congress, including Senators Reid, Allen, and Murray, and Reps. Conyers, Meeks, and Berman supporting the POWs. The brief argues, from Congress' perspective, that the legislature did not grant the President the authority to undo the laws that would potentially affect the POWs' judgment, and even if it had, that authority could not be used retroactively to undo their judgment.

WLF Amicus Brief

On February 18, DOJ filed its reply brief -- the last word to the court before the April 15, 2004 oral argument before three judges. Filled with rehashings of the same arguments, it again tells the court that the POWs' case should be thrown out, even though their judgment is the only evidence to date proving Hussein's complicity in the torture of Americans and is the first case ever to hold a nation accountable for torturing American POWs.

DOJ Reply

Following oral argument before three judges of the Court of Appeals for the District of Columbia Circuit, the court ruled against the POWs, then later denied a request to reconsider its decsision. So, the POWs on December 17, 2004 asked the Supreme Court to hear their appeal. These briefs can be linked to from the home page of this site.

Resource Set IV: Additional Materials Key to Understanding How the Case Got to This Point