Amicus Curiae Brief — Republic of Iraq v. Simon (No. 08-539)

Nos. 07-1090 and 08-539

Jn the Supreme Court of the Vnited States

REPUBLIC OF IRAQ, PETITIONER,

V.

JORDAN BERATY, ET AL... RESPONDENTS.

REPUBLIC OF IRAQ, PETITIONER,

Vv.

ROBERT SIMON, ET AL... RESPONDENTS.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR AMICI CURIAE

JAMES S. VINE, £7 AL.

IN SUPPORT OF RESPONDENTS IN 08-539

MICHAEL. 1). LIEDER, ESQ. DANIEL WOLF. ESQ.

SPRENGEEF: & LANG, PLLC LAW OFFICES OF DANIEL WOLF

L400 [STREET. NW, 1220 N STREET, NW,

SUITE 500 SUITE PH2

WASHING (ON, DC 20005 WASHINGTON, DC 20005

(202) 772-1159 (202) 842-2170

Counsel of Record

Counse/ for Amici Curiae

Lia. AL PRINT ER C. Washengron DC e@ 202 747-2400 © localprinters.com

TABLE OF CONTENTS

Page

TAs CO RATT EGIE BOM ceccccscsecsessovecnsscsseccseseses ill

INTEREST OF THE AMICI CURIAE.................44. 1

PROCEDURAL HISTORY OF THE VINE

SUD sinicinsaseinchenichaearnpbiipinhandiscstalandieietibaeincssatpioninlioeapanninan 3

SUMMARY OF THE ARGUMENT.......................5. 6

STE, seieiussiicitesiibeaesicipian deailceiicidiadha sieeiobiighbieainaet 10

I. Any Authority The EWSAA May Have

Bestowed Upon The President To

Exempt Iraq From Section 1605(a)(7)

Of the FSIA Expired On September 30,

SUID scunuibanaaesiamabiadsamniaaiaaebianebinadaaamaaonibia 12

A. Congress Clearly Intended That

All Of The Authorities Contained

In Section 1503 Of The EEWSA,

Including Any Authority To

Exempt Iraq From The

Jurisdictional Grant Contained In

Section 1605(a)(7) Of the FSIA,

Would Lapse Upon The Date

Specified In The Sunset Provision............ 12

B. Even If Congressional Intent

Regarding Application Of The

Sunset Provision Were Unclear,

That Provision Must Be Construed

As Applying To The Authorities

i

Page

Contained In Section 1503 In

Order To Avoid Grave

Constitutional Questions In

Regard To The Separation Of

Se icissccdcccurcacdeleiiahiiseiemedideadtimidbintamiapenmiosneninaans 24

II. Absent An Unmistakably Clear

Statement Of Congressional Intent —

Of Which There Is None — Section

1503 Of The EWSAA Cannot Be

Construed As Impliedly Amending

Section 1605(a)(7) Of The FSIA. ................... 28

ET scvsctivassesnscconsessunstansadnseenietindinnennanein 33

APPENDIX

IO a 8 SS Do Bl la

Page

TABLE OF AUTHORITIES

CASES

Acree v. Republic of Iraq,

370 F.3d 41 (D.C. Cir. 2004) .............. passim

Atchison, T. & S. F. R. Co. v. United

States,

PIED sc rncicescnenenuseioasibbaninest 20

Breuer v. Jim's Concrete of Brevard, Inc.,

rs Ce MD kacecccccentcccvacepncecosesesceces 22

Calcano-Martinez v. LNS, 232 F.3d 328

I a caeiins 31-32

Chapman v. Houston Rights Welfare

Organization,

er IID vecnscccancsennccmseenssesioiniceess 11

Clinton v. New York,

ee PS GEES CEI ccserecnscccscesvscnevancnicerss 9, 24

Edward J. DeBartolo Corp. v.

Florida Gulf Coast Building &

Construction Trades Council,

ae I iris nctinttietsatimcnenninenninnns 27

Electronic Data System Corp. v. Social

Security Organization of Iran,

508 F. Supp. 1350 (N.D. Tex. 1981),

affirmed in part and vacated in part,

651 F.2d 1007 (5th Cir. 1981)................... 27

ill

Glidden Co. v. Zdanok,

Pe BPs I GD ariccsccesesscscccsconeneensone

Griffin v. Oceanic Contractors,

Re Ee I CE sonincennvsnncincriniesenvonses

Helvering v. Stockholms Enkilda Bank,

Se Cte OD viitbibicitcasisiniteinerernaeds

Fill, et al. v. Republic of Iraq,

SE 5 eee

Hill v. Republic of Iraq,

175 F. Supp. 2d 36 (D.D.C. 2001),

reversed in part, 328 F.3d 680 (D.C.

EE ee ee

Holloway v. United States,

Ne OF WE inisennsctavcessanesonensucennisecs

INS v. Chadia,

Ge WIA WED CRD cvnevcsssscocsnsesssescecesens

INS v. St. Cyr,

WI ae. BO GD oeccscececccssenessnconseenenes

J.W. Hampton, Jr., & Company v.

United States,

SIS UD. BOE CIDR) ..0.0.2000secccercccrsecesseee

Lockerty v. Phillips,

eee

IV

Page

er 3

— |

Page

Manhattan Genera! Equipment

Company v. Commissioner,

gst B. | RRNTaneere ener 17

North Haven Board of Education v. Sell,

GOS UF Bee CD wviictitinimemmasienenee 23

National Association of Homebuilders v.

Defenders of Wildlife,

bse Bo @ |. ., ee 29, 30

Palmore v. United States,

Ris & [see 27

Regional Rail Reorganization Act Cases,

GOD Ue Fe Ce enctitsiininuiimnaainal 30, 32

Sandoval v. Reno,

166 F.3a 335 (9a Cir. 1908)..........<0cs0sses0--: 32

Sevam, et al. v. Republic of Iraq,

BO, SI Gs iecsecscsccceccncmenneucctons 2,4, 5

Simon, et al. v. Republic of Iraq,

Oe, Ge GD sccctniiuniniiistntnaniatatanaia 2,4,5

Sorenson v. Secretary of Treasury,

i Bek Ef sre. * 22

Tennessee Valley Authority v. Hill,

GEE CEE. TEE CIO tvisiccisstintacemeeionniaee 29

Terran v. Secretary of Health and

Human Services,

195 F.3d 1302 (Fed. Cir. 1999) ....0.00.00000... 24

Page

Times Publishing Co. v. U.S. Department

of Commerce,

236 F.3d 1286 (11th Cir. 2001)................. 18

Traynor v. Turnage,

I ID oo « cocccnsesescsscncesenesseceoss 30

Tyler v. Cain,

ED nsccnccncnsavesscssvenscssecesecs 11

United States v. Borden Co.,

i 29, 30

United States v. Hansen,

772 F.2d 940 (D.C. Cir. 1985) ............0000... 30

United States v. Jin Fuey Moy,

I I snccnsscrccsccsevececsrsnscoenss 27

United States v. Lahey Clinic

Hospital, Inc.,

399 F.3d 1 (ist Cir. 2008)..............c...cccc0ee. 24

United States v. Larionoff,

I nn sc csenecsctanconenss 17

United States v. Mechanic,

809 F.2d 1111 (5th Cir. 1987)...........00.0.... 18

United States v. Quinn,

401 F. Supp. 2d 80 (D.D.C. 2005)....... 16-17, 19

United States v. Spawr Optical

Research, Incorporated,

685 F.2d 1076 (10th Cir. 1982) .........0....... 18

vi

United States v. Welden,

I te 30

Vine, et al., v. Republic of Iraq,

Pee, Sar e Ce dvcicdccccesececcescscesvccsecss 1-5

Vine v. Republic of Iraq,

459 F. Supp. 2d 10 (D.D.C. 2006) ............... 5

Vine v. Republic of Iraq, 2006 U.S. App.

LEXIS 30400 (D.C. Cir. Dec. 11, 2006) ...... 5

Watt v. Alaska,

ee ED vctencnieicinsaniniteniitianciliatieasiibcllnas 30

Whitman v. American Trucking Ass'ns,

iia aaa 25

Wisconsin Project on Nuclear Arms

Control v. U.S. Department

of Commerce,

317 F.3d 275 (D.C. Cir. 2003) ................... 18

STATUTES AND REGULATIONS

Emergency Supplemental Appropriations

Act for Defense and for the

Reconstruction of lrag and

Afghanistan,

Pub. L. No. 108-106, 117 Stat. 1230...... passim

Emergency Wartime Supplemental

Appropriations Act,

Pub. L. No. 108-011, 117 Stat. 559........ passim

Vu

Export Administration Act,

50 U.S.C. App. § 2401-20 ..............

Foreign Assistance Act of 1961,

22 U.S.C. § 2151, et seq. ............000000

Se Ste OF Oe ED verentvinsicccvesosceees

Foreign Sovereign Immunities Act ,

28 U.S.C. §§ 1602 et seg................

28 U.S.C. § 1605(a)(7) .............0000.

BB UTES. ©] RGB). ccvccccccnccccsseccsee

International Emergency Economic

Powers Act,

50 U.S.C. §§ 1701 & 1702..............

Iraq Sanctions Act of 1990,

Pub. L. No. 101-513, 104 Stat.

IG Ce iitiniciniicinihnianiintinnniiiedaonnaiee

National Defense Authorization Act

of 2008,

Pub. L. No. 110-181, 122 Stat 3....

49 Fed. Reg. 13099 (1984) ...................

66 Fed. Reg. 44025 (2001) ...................

68 Fed. Reg. 26,459 (2003) ............0000-.

Vill

Page

jails passim

sine 9,14

enidaeniaeie 3

oe passim

aiecnenida 3

seen 5, 6

Page

MISCELLANEOUS

H.R. Conf. Rep. No. 337, 108th Cong.,

i iii casesceatisainonigeniiial 22

S. Rep. No. 108-33, 108th Cong.,

I ica eticipianteiateilaniennioninnee 11

Webster’s New Twentieth Century

Dictionary (2nd ed. 1966).................ccceeeeee 23

Weekly Comp. Pres. Doc. 647 (2003) .............. 25

INTEREST OF THE AMICI] CURIAE

Amici curiae, James S. Vine, et al,’ are 201

American citizens who are plaintiffs in Vine v.

Republic of Iraq No. 01-02674 (D.D.C.), a suit that

was originally filed on December 27, 2001, as a class

action against the Republic of Iraq (“Iraq”) for money

damages resulting from acts of hostage taking and

false imprisonment.” The Vine plaintiffs were held

in Iraq and Kuwait following the Iraqi invasion on

August 2, 1990, when former Iraqi President

Saddam Hussein issued an order detaining all

American citizens present in those countries in order

to extract a commitment from the United States and

its coalition allies to refrain from using military force

to liberate Kuwait.

Many of the Vine plaintiffs were rounded up by

Iraqi security forces and forcibly relocated to

strategic sites, where they were used as “human

shields” to prevent allied air attack. Other Vine

plaintiffs fled to various diplomatic properties in

Iraq and/or Kuwait, where they were confined

throughout the crisis. Still others hid themselves in

“safehouses” and private residences for fear of being

captured by Iraqi security forces, who they believed

would either execute them or force them to serve as

“human shields.” All of the Vine plaintiffs endured

harsh conditions throughout their detention, lived in

constant fear for their lives and suffered severe

emotional distress. Many witnessed unimaginable

atrocities. Others were beaten, raped, tortured

and/or subjected to mock executions.

* A complete list of the Vine plaintiff amic7is set forth in Appendix A.

* The parties have consented to the filing of this brief.

The interest of the Vine plaintiffs in the

resolution of these matters could not be greater.

Indeed, upon motion of the Vine plaintiffs, the

district court consolidated their case with both

Seyam v. Republic of Iraq, No. 03-00888 (the

plaintiffs in which are members of the putative class

in Vine) and Simon v. Republic of Iraq, 03-00691, for

purposes of resolving Iraq’s motion to dismiss. The

district court then issued a single consolidated

decision in which it granted Iraq’s motion in the

Seyam and Simon cases, but denied it in the Vine

case. In other words, the district court decision that

the D.C. Circuit affirmed and that is a subject of the

present writs of certiorari is as much a decision in

the Vine case as it is in two of the three cases that

are covered by those writs. However, because the

Vine plaintiffs had the “misfortune” to have

prevailed in the district court—and because Iraq

made a tactical decision to forego its appellate

rights—the Vine plaintiffs have been denied the

opportunity to appear before this Court as parties

and to argue their cause.

The Vine plaintiffs’ inability to participate in

this proceeding is particularly distressing because

the arguments that they believe are the most

compelling are not highlighted in Respondents’ brief,

and have received little or no attention from either

iraq or the United States. Given these unusual

circumstances, the Vine plaintiffs respectfully

request that this Court give their brief amici curiae

the same degree of consideration that it would if

they were appearing as parties before it.

PROCEDURAL HISTORY OF THE VINE CASE

The Vine plaintiffs filed their original complaint

against Iraq on December 27, 2001, invoking the

district court’s jurisdiction under the state-sponsored

terrorism exception to the Foreign Sovereign

Immunities Act, 28 U.S.C. § 1602 et seg. (the

“FSIA”), which permits American citizens to bring

actions against terrorist states for certain acts of

terrorism, including hostage-taking. 28 U.S.C. §

1605(a)(7).’ In accordance with the requirements of

the FSIA, 28 U.S.C. § 1608(e), the Vine plaintiffs

effectuated service of their complaint upon Iraq on

November 25, 2002.

Following the entry of an order of default against

Iraq on August 18, 2003, the United States filed a

statement of interest in the Vine case, arguing that

jurisdiction over Iraq had not existed since May 7,

2003, when the President issued a determination,

declaring that all “provision[s] of law that applly] to

countries that have supported terrorism” were

inapplicable with respect to Iraq. Presidential

* Vine was filed as a case related to Hil] v. Republic of Iraq,

Case No. 99-3346 (D.D.C.), an action that had been filed two

years before and that was prosecuted on behalf of 180 other

plaintiffs who had been victims of Iraq’s hostage-taking in the

wake of its invasion of Kuwait. In that action, the district court

ruled that each of the plaintiffs had established his or her claim

to relief by satisfactory evidence and issued them default

judgments that totaled approximately $94 million. See Hi// v.

Republic of Iraq, 175 F. Supp. 2d 36 (D.D.C. 2001), revd in part

on other grounds, 328 F.3d 680 (D.C. Cir. 2003). These

judgments were collected in full in March 2003, when President

George W. Bush instructed the Secretary of Treasury to issue a

license instructing the Bank of New York to pay the judgment

out of blocked Iraqi accounts.

C2

Determination No. 2003-23, 68 Fed. Reg. 26,459

(May 16, 2003). In issuing this determination, the

United State argued, the President was acting

pursuant to authorities delegated to him under the

second proviso of Section 1503 of the Emergency

Wartime Supplemental Appropriations Act of 2003

(the “EWSAA”), which provides that:

the President may make inapplicable with

respect to lraq section 620A of the Foreign

Assistance Act of 1961 or any other provision

of law that applies to countries that have

supported terrorism.

Pub. L. No. 108-011, § 1503, 117 Stat. 559.

While the issue was still being pending in the

district court, the D.C. Circuit held in Acree v.

Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), that

Section 1503 of the EEWSA was not intended to give

the President the authority to exempt Iraq from the

exception to immunity set forth in Section 1605(a)(7)

of the FSIA. In an order, dated July 20, 2004, the

district court ruled that the Acree decision foreclosed

the United States’ jurisdictional argument.

Subsequently, in January 2005, Iraq appeared in

the Vine case, which the district court then

consolidated with the Seyam and Simon cases for

purposes of resolving lraq’s motion to dismiss. That

motion sought dismissal on a variety of grounds,

including that plaintiffs’ claims were all barred by

the statute of limitations, that they had failed to

state a viable cause of action, that their claims

presented a non-justiciable political question, and

that the President’s exercise of his supposed

authority under Section 1503 of the EWSAA had

divested the court of jurisdiction over Iraq.

On September 7, 2006, the district court issued

its decision on Iraq’s motion to dismiss, in which it

denied that motion as to the claims of the Vine

plaintiffs, but granted it as to the claims of the

Seyam and Simon plaintiffs on statute of limitations

grounds. Vine v. Republic of Iraq, 459 F. Supp. 2d

10 (D.D.C. 2006). Although Iraq filed a notice of

appeal from the order denying its motion to dismiss

the Vine case, Iraq ultimately moved to dismiss that

appeal and the D.C. Circuit obliged. Vine v. Republic

of Iraq, 2006 U.S. App. LEXIS 30400 (D.C. Cir. Dec.

11, 2006).

While Iraq was filing its appeal in the Vine case,

the Seyam and Simon plaintiffs filed a notice of

appeal of the decision dismissing their claims. In an

opinion issued on June 24, 2008, the Court of Appeal

reversed the district court’s ruling that the Seyam

and Simon cases were time-barred, rejected Iraq’s

argument that a Presidential waiver under Section

1083(d) of the National Defense Authorization Act of

2008, Pub. L. No. 110-181, 122 Stat. 3 (the “NDAA”),

stripped the district courts of jurisdiction to hear

pending claims against Iraq under Section 1605(a)(7)

of the FSIA, and adhered to the Acree court’s ruling

that Section 1503 of the EWSAA also did not give

the President the authority to deprive the courts of

jurisdiction over such claims. Simon v. Republic of

Iraq, 529 F.3d 1187 (D.C. Cir. 2008).

On January 9, 2009, this Court granted Iraq’s

petition for certiorari to address the issues whether

jurisdiction continues to exist over Iraq in light of

the exercise of Presidential authorities under Section

1083(d) of the NDAA and Section 15038 of the

EWSAA.*

SUMMARY OF THE ARGUMENT

In their opinions in Acree v. Republic of Iraq,

370 F.3d 41 (D.C. Cir. 2004), both Judge Edwards,

writing for the majority, and Chief Justice Roberts,

in a concurring opinion, found the meaning of

Section 1503 of the EEWSA to be less than pellucid

and the question whether that section’s second

proviso gave the President the authority to exempt

Iraq from the jurisdictional grant contained in

Section 1605(a)(7) of the FSIA to be a close one. Jd.

at 51 and 62. This Court, however, need not struggle

trying to answer that question.

The legal landscape surrounding’ the

jurisdictional issue in this case has dramatically

changed since the D.C. Circuit issued its decision in

the Acree case on June 4, 2004. At that time, the

authorities contained in Section 1503 were in full

force and effect. However, Section 1503 contains its

own sunset provision, which, by its terms, provides

that “the authorities contained in this section”

(including the authority to declare “provision|s] of

* This brief does not address the issue whether Section 1083(d)

of the NDAA deprives the district courts of jurisdiction over

Iraq. For the reasons set forth in Respondents’ merits brief and

the United States’ amicus brief, the Vine plaintiffs agree that it

does not have that effect.

law that applly] to countries that have supported

terrorism” inapplicable to Iraq) “shall expire on

September 30, 2004” unless extended by a

subsequent congressional enactment. Pub. L. No.

108-011, § 1503, 117 Stat. 559, 579 (emphasis

added). While Congress temporarily extended the

sunset date by one year in November 2003, Pub. L.

No. 108-106, § 2204(2), 117 Stat. 1230, it has

granted no further extension and, hence, the

authorities contained in Section 1503 lapsed on

September 30, 2005.

While the Acree panel disagreed on the issue

whether Section 1503 authorized the President to

limit the jurisdictional grant contained in Section

1605(a)(7) of the FSIA, all three of the Acree judges

agreed on what would happen upon the expiration of

Section 1503’s sunset period—that is, they agreed

that jurisdiction over Iraq would be restored upon

the triggering of its sunset provision. 370 F.3d at 57

and 62. As that provision became effective some

three and one half years ago, Section 1605(a)(7) has

applied to Iraq ever since.

The United States’ argues that this passing of

the sunset is of no moment because the President’s

exercise of his authority to exempt Iraq from laws

applicable to terrorist countries has “a permanent

effect.” (United States Amicus Brief at 19 (emphasis

in original.) It is wrong. First, the proposition that

delegated authorities can somehow outlast the

statute that is the source of such delegation is totally

devoid of support and conflicts with elementary

principles of administrative law.

~]

Second, the United States’ view regarding the

temporal scope of Section 1503’s second proviso

cannot be squared with its admission that the

authorities contained in that section’s fourth and

fifth provisos, which likewise, make certain

provisions of law inapplicable to Lraq, expired with

the passing of the sunset on September 30, 2005. As

there is no relevant distinction between the

language of these two provisos and the language of

the second proviso, the United States’ interpretation

runs afoul of the basic canon of construction that

requires identical words used in the same statute to

be given the same meaning.

The failure to apply that rule in this case carries

dangerous and absurd policy consequences that

Congress could not possibly have intended. Under

the United States’ interpretation of Section 1503, the

President permanently exempted Iraq from any and

all provisions of law applicable to terrorist states.

Furthermore, since all of the authorities that Section

1503 granted the President expired on September

30, 2005, he no longer has any implied power to undo

Iraq’s exemption from those provisions. Thus, in the

unfortunate event that insurgent forces were to take

power in Iraq and launch terrorist attacks against

U.S. interests around the world, the President would

be powerless to take immediate action. Rather, he

would have to wait for Congress to pass a new

statute making applicable to Iraq all of the

provisions of law that President Bush supposedly

made permanently inapplicable to that country some

S1X years ago.

If, as would be the case under the United States’

interpretation of Section 1503, the only way to re-

apply all of these provisions of law to Iraq would be

for Congress to enact new legislation withdrawing

Iraq’s exemption, then the power the Congress

delegated to the President in that section was, in

effect, the power to amend the law. There is,

however, “no provision in the Constitution that

authorizes the President to... amend .. . statutes.”

Clinton v. New York, 524 U.S. 417, 438 (1998).

Where, as here, a proffered interpretation of a

statutory provision would present a_ serious

separation of powers problem, that interpretation

should be avoided if there is any other plausible way

of construing that provision.

A construction of Section 1503’s second proviso

under which the Presidential authorities contained

in that proviso would lapse on its sunset date is

more than just plausible. That provision was an

emergency measure, the manifest purpose of which

was to enable the President to remove the barriers to

aiding and trading with Iraq that had been imposed

as a result of its designation as a terrorist state.

Such authority was needed only until such time as

conditions on the ground in Iraq would allow the

Secretary of State to certify that its new leadership

had provided credible assurances that Iraq would

henceforth abide by the rule of law, thereby,

enabling him to rescind Iraq’s designation as a state-

sponsor of terrorism. 22 U.S.C. § 237l(c). Thus,

Section 1503 of the EEWSA is best construed as an

interim measure, which gave the President the

authorities he needed to exempt Iraq from provisions

of law applicable to countries that have supported

terrorism for the limited period of time specified in

its sunset provision.

Even assuming that jurisdiction over Iraq was

not restored when the authorities contained in

Section 1503 expired, the argument that Section

1503 authorized the President to make Section

1605(a)(7) of the FSIA inapplicable to lraqg overlooks

the cardinal rule of statutory construction that

disfavors implied amendments’ and_ repeals.

Consistent with this rule, which is not mentioned in

either of the opinions in Acree, this Court has

repeatedly held that a legislative intention to repeal

or amend a prior statute will be found only where

such intention is “clear and manifest.” As Chief

Justice Roberts acknowledged in his concurring

opinion in Acree, Section 1503’s second proviso does

not constitute an unequivocal congressional

command to limit jurisdiction under Section

1605(a)(7) of the FSIA. 370 F.3d at 62. Accordingly,

it cannot be construed as having that effect.

ARGUMENT

In their haste to be rid of these cases, Iraq and

the United States seek to manipulate the meaning of

nineteen words in a proviso to a_ wartime

appropriations bill, which was enacted by Congress

on an emergency basis and without debate. To this

end, they construe those words as_ impliedly

amending the FSIA, so as to give Iraq a permanent

exemption from its jurisdictional grant in cases

involving acts of state-sponsored terrorism. It is,

however, the task of this Court to interpret the

words of the EWSAA not as if they existed “in a

10

vacuum,” but rather in the “context” of that statute

as a whole, 7y/er v. Cain, 533 U.S. 656, 662 (2001),

and “in light of the purposes, Congress sought to

serve.” Chapman v. Houston Rights Welfare Org.,

441 U.S. 600, 608 (1979); see also Holloway v.

United States, 526 U.S. 1, 6 (1999) (stating that

basic principle of construction mandates that courts

“consider not only the bare meaning’ of the critical

word or phrase ‘but also its placement and purpose

in the statutory scheme’””).

The EWSAA was enacted on April 16, 2003 in

the immediate aftermath of the fall of Baghdad to

coalition forces. Pub. L. No. 108-011, 117 Stat. 559.

The manifest purpose of that statute was to meet

Iraq’s urgent need for foreign assistance and to

enable private relief organizations and businesses to

help in the rebuilding effort. These objectives could

not be achieved, however, without removing the

barric’s to aid and commerce that had been imposed

on Iraq by virtue of the former regime’s support for

international terrorism. As set forth in greater

detail in Respondents’ brief, the removal of these

barriers—and not any desire to forever deprive

American victims of Iraqi terrorism of their right to

a judicial forum—was the sole concern of the

language in Section 1503 of the EWSAA authorizing

the President to exempt Iraq from “Section 620A of

the Foreign Assistance Act or any other provision of

law” applicable to terrorist states. See S. Rep. No.

108-33, at 21 (2003) (noting that section 1503

responded to the President’s “request for the repeal

of the Iraqi Sanctions Act of 1990 [sic], and other

limitations on assistance for Iraq’) (emphasis

added).

11

I. Any Authority The EWSAA May Have

Bestowed Upon The President To Exempt Iraq

From Section 1605(a)(7) Of The FSIA Expired

On September 30, 2005.

In addressing whether the district courts have

jurisdiction to entertain these actions, both lraq and

the United States devote almost their entire

argument to the proposition that Section 1503 of the

EEWSA was intended to give the President the

authority to make Section 1605(a)(7) of the FSIA

“inapplicable to Iraq.” This Court, however, need

not—and should not—address this question of

statutory interpretation because any authority the

EEWSA may have given the President to immunize

Iraq from the jurisdiction of U.S. courts lapsed on

September 30, 2005.

A. Congress Clearly Intended That All Of

The Authorities Contained In Section 1503

Of The EEWSA, Including Any Authority

To Exempt Iraq From The Jurisdictional

Grant Contained In Section 1605(a)(7) Of

The FSIA, Would Lapse Upon The Date

Specified In The Sunset Provision.

Section 1503 of the EWSAA contains a sunset

provision, which expressly states that “the

authorities contained in this section” (including, of

course, the authority to declare “provision[s] of law

that appl{y] to countries that have supported

terrorism” inapplicable to Iraq):

shall expire on September 30, 2004, or on the

date of enactment of a subsequent Act

12

authorizing assistance for I[raq and that

specifically amends, repeals or otherwise

makes inapplicable the authorities of this

section, whichever occurs first.

Pub. L. No. 108-011, § 1503, 117 Stat. 559, 579

(emphasis added).

On November 6, 2003, Congress amended

Section 1503 of the EWSAA to extend the authorities

in that provision for an additional year. See

Emergency Supplemental Appropriations Act for

Defense and for the Reconstruction of Iraq and

Afghanistan, Pub. L. No. 108-106, § 2204(2), 117

Stat. 1230 (the “ESAADRIA”). However, at no time

since that amendment has Congress enacted any

additional amendment extending the authorities in

Section 1503 of the EWSAA beyond September 20.

2005. Thus, even if the President had the authority

to make Section 1605(a)(7) of the FSIA inapplicable

to Iraq when Congress enacted the EWSAA in April

2003, that authority expired on September 30, 2005

and, hence, Section 1605(a)(7) has been applicable to

Iraq ever since. See Acree v. Republic of Iraq, 370

F.3d 41, 57 (D.C. Cir. 2004) (noting that expiration of

Section 1503’s sunset provision would operate to

make Section 1605(a)(7) of the FSIA “available as a

basis of jurisdiction” against Iraq in any action

“based on events that occurred while Iraq was

designated as a state sponsor of terrorism”).

The temporal limits that the EWSAA imposed on

the authorities contained in Section 1503 reflect the

temporary nature of the problem those authorities

were addressing. As set forth above, the problem

13

was that Iraq’s designation as a state sponsor of

terrorism had triggered various provisions of law

that would prevent assistance to and restrict trade

with that country. It was temporary because the

Secretary of State had the authority to rescind that

designation upon his certification that the new

leaders of Iraq, whoever they might be and whenever

they came to power, had _ provided credible

assurances that Iraq would henceforth abide by the

rule of law. 22 U.S.C. § 2371(c). But, as the

uncertain conditions then prevailing in Iraq would

make it impossible for the Secretary to make that

certification for some time, Congress had to adopt an

interim measure to prevent Iraq’s designation as a

terrorist state from blocking the effort to rebuild that

country. See Acree, 370 F.3d at 62 (Roberts, C.J.,

concurring) (“One need look no further than the title

of the EWSAA to discern its emergency nature.”).

That interim measure was Section 1503 of the

EWSAA, which gave the President the authorities he

needed to exempt Iraq from provisions of law

applicable to countries that have supported terrorist

states for a period of 18 months—by which time,

Congress reckoned, conditions on the ground would

be such as to permit the Secretary of State to remove

Iraq from the terrorism list.

As history would have it, the Secretary rescinded

Iraq’s designation as a terrorist state in October

2004—eleven months before the expiration of

Section 1503’s sunset date (as extended by the

ESAADRIA). As the Secretary’s act rendered

superfluous the Presidents May 2003 _ order

exempting Iraq from the various provisions of law

that restrict aid to and commerce with terrorist

14

countries, Congress was able to allow the sunset

date to come and go without any consequence insofar

as those provisions were concerned. Presidential

Determination No. 2003-23, 68 Fed. Reg. 26,459

(May 16, 2003). That, however, was not at all the

case with regard to Section 1605(a)(7) of the FSIA.

Unlike statutory provisions that address aid and

trade with terrorist countries, jurisdiction under

Section 1605(a)(7) depends not on a foreign state’s

current designation as a sponsor of terrorism, but on

its designation at the time of the terrorist act upon

which a plaintiffs claim is based. 28 U.S.C. §

1605(a)(7)(A). Thus, to the extent that Section 1503

ever applied to Section 1605(a)(7), the lapse of

presidential authority to make that provision

inapplicable to Iraq resulted in the restoration of

jurisdiction over that country.

That the sunset provision would have that effect

is something about which a// three judges on the

Acree panel agreed. For instance, in his majority

opinion, Judge Edwards stated that, if the United

States’ position were correct, jurisdiction over Iraq

would “again be available” if and when the period

specified in Section 1503’s_ sunset provision

elapsed—a result he characterized as “bizarre.” 370

F.3d at 57.

Likewise, in his concurring opinion, Chief

Justice Roberts wrote that Section 1605(a)(7) of the

FSIA, as well as all other provisions of law that the

President had made “inapplicable as to Iraq,” would

“return to full strength” upon expiration of the

sunset provision. /d. at 62. Unlike the majority,

however, Chief Justice Roberts found nothing

15

bizarre about this result because he viewed the

sunset provision as an attempt “to buy [Congress]

time for fuller consideration of the issues” and he

thought it unlikely that “the majority’s prediction of

abject congressional lassitude” would turn out to be

“accurate.” Jd.

In fact, history has demonstrated that Congress

acted responsibly in extending the sunset provision

by one year in November 2003—a period that proved

more than sufficient in giving the Secretary of State

the time he would need to remove Iraq from the

terrorism list. However, once the Secretary had

taken that action, Congress had no further need to

extend the authorities contained in Section 1503.

This inaction caused the sun to set on all such

authorities on September 30, 2005.

In their briefs in this Court, both the United

States and Iraq argue that this passing of the sunset

is of no moment because the President’s exercise of

his authority to make provisions of law that apply to

countries that have supported terrorism inapplicable

to Iraq has “a permanent effect.” (United States

Amicus Brief at 19 (emphasis in original); see also

Petitioners’ Brief at 33.) Intrinsic to this

interpretation of the EWSAA is the unstated, but

necessary, proposition that authorities that have

been delegated to the Executive Branch by Congress

can somehow outlast the statute that is the source of

such delegation.

Neither the United States nor Iraq cites a single

case in support of this dubious proposition for the

reason that no such case exists. See L/nited States v.

16

Quinn, 401 F. Supp. 2d 80, 93 n.10 (D.D.C. 2005)

(noting that “the Court could not locate a pertinent

case outside the realm of trade embargos” under the

Export Administration Act in which “the statute

underlying the regulations lapsed and_ the

regulations nonetheless continued in force”). In fact,

the governing principle is just the opposite. Absent

some intervening circumstance—not present here—

“a statutory lapse ... leavels} the implementing

regulations without a legislative foundation on

which to stand,” sd. at 93, for, as this Court has

repeatedly affirmed, a regulation that “operates to

create a rule out of harmony with the statute” under

which it was promulgated “is a mere nullity.”

Manhattan Gen. Equip. Co. v. Comm’, 297 U.S. 129,

134 (1936); see also United States v. Larionoff, 431

U.S. 864, 873 (1977) (“regulations, in order to be

valid|,|] must be consistent with the statute under

which they are promulgated”).

Research has revealed just a single line of cases

in which the courts have been called upon to address

the effect of the expiration of statutory authority on

regulations promulgated pursuant to that authority.

All of these cases have arisen in the context of

congressional failure to extend the sunset provision

in the Export Administration Act, 50 U.S.C. app. §

2401-20 (the “EAA”), and they demonstrate that the

novel view of delegated executive power that the

United States is advancing here is incorrect.

Like the EWSAA, the EAA—which authorizes

the President to regulate the export of goods in

furtherance of U.S. national security, foreign policy

and economic interests—contains a provision

17

terminating “[t]he authority granted by this Act” on

a specified date. 50 U.S.C. app. § 2419. Since the

passage of the EAA in 1979, Congress has permitted

this authority to lapse on no less than six occasions.

Wisconsin Praject on Nuclear Arms Control v. U.S.

Dept of Commerce, 317 F.3d 275, 278 (D.C. Cir.

2003). And, on each such occasion, the President

responded by declaring a national emergency and

invoking his’ alleged authority under the

International Emergency Economic Powers Act, 50

U.S.C. §§ 1701 and 1702 (“IEEPA”), to rescue the

regulatory regime that had been established under

the EAA. Wisconsin Project, 317 F.3d at 278.

Implicitly acknowledging that the effect of the

expiration of that statute would be to render all

regulations promulgated thereunder a nullity, each

of these executive orders has provided that “[alJll

rules and regulations issued .. . under the authority

of the [EAA], as amended, ... shall... remain in full

force and effect as if issued or taken pursuant to” the

President’s authority under IEEPA. 49 Fed. Reg.

13099 (Executive Order 12470 of Mar. 30, 1984); see

also 66 Fed. Reg. 44025 (Executive Order No. 13222

of Aug. 17, 2001). Furthermore, in each of the cases

involving post-sunset date challenges to these rules

and regulations, the courts have held that the issue

of their validity turned “solely upon the President’s

exercise of his powers under IEEPA.” United States

v. Mechanic, 809 F.2d 1111, 1113 (5th Cir. 1987): see

also Times Publishing Co. v. U.S. Dept of

Commerce, 236 F.3d 1286, 1291 (11th Cir. 2001);

United States v. Spawr Optical Research, Inc., 685

F.2d 1076, 1078 (10th Cir. 1982) (stating that, in

view of expiration of the statutory predecessor to the

18

EAA, the “sole basis” for regulations restricting

export of goods to the former Soviet Union was an

executive order purporting to extend them under the

Trading With The Enemy Act); Quinn, 401 F. Supp.

2d at 93. To put it another way, had the President

not rescued them by invoking his authority under

IEEPA, ali of the rules and regulations that had

earlier been issued pursuant to the EAA would have

lapsed when that statute’s sunset provision took

effect.

The implications of a construction of the EWSAA

that would depart from the bedrock principle that

delegated authorities expire with the statute that is

their source are both dangerous and absurd. In the

same determination in which he purportedly placed

Iraq beyond the reach of Section 1605(a)(7) of the

FSIA, President Bush also declared Section 620A of

the Foreign Assistance Act and all other provisions

of law restricting aid to and trade with state-

sponsors of terrorism “inapplicable with respect to

Iraq.” 68 Fed. Reg. 26,459. If the United States’

interpretation of the EWSAA is correct, Iraq’s

exemption from every one of these provisions is

permanent and, since all of the authorities that

Section 1503 granted the President have expired,

that exemption can no longer be undone through

executive action. In other words, as the United

States would have it, lraq enjoys a privileged status

among the countries of the world: it is the only one

that can sponsor acts of internationa] terrorism

without triggering the various provisions of U.S. law

that authorize or compel the President to protect our

country from such conduct.

19

The notion that Congress intended to enable the

President to exempt I[raq from these provisions in

perpetuity when it enacted the EWSAA in April

2003 is farfetched. At that point in time, the

Ba’athist regime in Iraq had not yet surrendered and

there was no guarantee that the regime that would

ultimately replace it would not itself degenerate into

a state sponsor of terrorism. Indeed, with American

combat forces due to withdraw from Iraq within the

next 18 months, the possibility remains that Iraq

could eventually fall in the hands of insurgent forces

that support international terrorism.

Yet, under the short-sighted interpretation of

Section 1503 that the United States is promoting

here, in the unfortunate event that such forces were

to take power in Iraq and, upon having done so, to

launch a concerted terrorist campaign against U-S.

interests around the world, the President would be

powerless to take immediate action. Rather, he

would be required to wait for Congress to pass a new

statute making applicable to Iraq all of the

provisions of law that President Bush supposedly

made permanently inapplicable to that country some

six years ago. Given the availability of an

alternative and more plausible reading of Section

1503, this Court should not construe that provision

in a manner that would produce such an absurd and

obviously unintended result. See, e.g., Griffin v.

Oceanic Contractors, 458 U.S. 564, 575 (1982)

(“interpretations of a statute which would produce

absurd results are to be avoided if alternative

interpretations consistent with the legislative

purpose are available”); Atchison, T. & S. F. R. Co. v.

United States, 295 U.S. 193, 208 (1935).

20

Beyond its unintended, absurd and highly

undesirable policy consequences, the United States’

view that, once invoked by the President, the

authorities contained in Section 1503’s_ second

proviso exist in perpetuity cannot be reconciled with

its far more sensible view regarding the temporal

scope of the authorities contained in that section’s

fourth and fifth provisos. Like Section 1503’s second

proviso, these provisos make certain provisions of

law inapplicable with regard to Iraq.’ In its amicus

brief, the United States admits (at 20) that it was

necessary for Congress to include a provision in the

ESAADRIA extending the authorities referenced in

Section’s 1503’s fourth and fifth provisos in order

that they “would remain inapplicable [to Iraq]

‘through fiscal year 2005.” The United States

argues (at 20), however, that this extension was not

needed to ensure that the provisions of law that the

President ordered “inapplicable to Iraq” pursuant to

his authority under Section 1503 remained

“inapplicable” to that country, because, once

exercised, that authority had “a permanent effect.”

The distinction the United States draws between

Section 1503’s second proviso and its fourth and fifth

provisos finds absolutely no support in the statutory

language. All three provisos are “authorities” that

make certain provisions of law inapplicable to Iraq.

> By its terms, the fourth proviso provides that “section 307 of

the Foreign Assistance Act of 1961 shall not apply with respect

to programs of international organizations for Iraq.” Pub. L.

No. 108-011, § 1503, 117 Stat. 559, 579. Similarly, the fifth

proviso states that “provisions of law that direct the United

States Government to vote against or oppose loans or other

uses of funds .. . in international financial institutions for lraq

shall not be construed as applying to Iraq.” /d.

21

ae

The sole difference between them is that the second

proviso requires presidential action to bring about

this result, while the fourth and fifth ones are self-

executing. It is, of course, a basic rule of statutory

construction that “identical words used in different

parts of the same act”—to say nothing of words used

in the same section—‘“are intended to have the same

meaning.” Sorenson v. Secretary of Treasury, 475

U.S. 851, 860 (1986) (quoting AHelvering v.

Stogkholms Enkilda Bank, 293 U.S. 84, 87 (1934)).

Thus, if as the United States admits, the authorities

contained in the fourth and fifth provisos of Section

1503 do not outlast the sunset provision, then the

same must be true of the authorities contained in

that section’s second proviso.°

6

The United States seeks to defeat this logic by pointing to a

sentence from the Joint Explanatory Statement attached to the

Conference Report to the ESAADRIA, which describes

Presidential Determination 2002-23 as having “ma[dle

permanently inapplicable to Iraq any provisions of law that

apply to countries that support terrorism.” H.R. Conf. Rep. No.

337, 108th Cong., lst Sess. 59 (2003) (emphasis added). This

legal opinion, which somehow found its way into a committee

report to a subsequently enacted statute, is hardly an

authoritative interpretation of the meaning of the EWSAA.

When Congress passed that statute in April 2003, it voted only

for its bare legislative text, which, as set forth above, contains

no linguistic basis for finding a temporal! distinction between

Section 1503’s second proviso and its fourth and fifth ones. In

such circumstances, adding an omitted word—“permanently”"—

into Section 1503 of the EWSAA because of a single isolated

comment in the legislative history to an amendment that was

enacted six months later would be entirely inappropriate. See,

e.g., Breuer v. Jim's Concrete of Brevard, Inc., 538 U.S. 691,

699, n.3 (2003) (noting that “a stray comment in a

congressional report stands a long way from” (and “cannot

make up for the absence of”) “express statutory language”); WN.

Haven Bd. of Educ. v. Bell, 456 U.S. 512 , 550 (1982) (Powell,

22

The United States points out (at 20) that if the

second proviso is not read to have permanent effect,

then neither can Section 1503’s principal clause,

which gives the President the authority to “suspend

the application of any provision of the Iraq Sanctions

Act of 1990,” Pub. L. No. 101-513, 104 Stat. 1979,

2047 (the “ISA”)—something that the United States

regards as implausible since “Congress never

repealed the ISA” and the Commerce Department

“continues to permit export to Iraq of items that

would not be permitted” if the ISA were still

effective. The United States’ argument cannot be

squared with Section 1503’s use of the word

“suspend”—the plain meaning of which is “to stop

temporarily.” Webster’s New Twentieth Century

Dictionary (2nd ed. 1966) (emphasis added).

Leaving that inconvenient fact aside, the United

States’ argument also ignores the fact that, by its

terms, the ISA gives the President the authority to

terminate the trade embargo against Iraq, 101 P.L.

513, §§ 586C(c), and to waive any or all of the other

sanctions specified in that act upon his

determination that the conditions giving rise to their

imposition no longer exist. Jd. §§ 586H. To the

extent, however, that one oi more of those sanctions

were not waivable, the fact that Congress may have

neglected to act by repealing the ISA is hardly

evidence of its intent to delegate to the President the

authority to repeal that statute himself when it

passed the EWSAA in April 2003.

J., dissenting) (“when critical words ... are absent from a

statute and its meaning is otherwise clear, reliance on

legislative history to add omitted words is rarely appropriate”).

23

B. Even If Congressional Intent Regarding

Application Of The Sunset Provision Were

Unclear, That Provision Must’ Be

Construed As Applying To The Authorities

Contained In Section 1503 In Order To

Avoid Grave Constitutional Questions In

Regard To The Separation Of Powers.

The United States’ attempt to construe the

EWSAA as a delegation of congressional authority

to, in effect, repeal the [ISA—and, by necessary

extension to amend Section 1605(a)(7) of the FSIA—

cannot stand. As this Court acknowledged when it

invalidated the Line Jtem Veto Act in Clinton v. New

York, 524 U.S. 417 (1998), “[t]here is no provision in

the Constitution that authorizes the President to

enact, to amend, or to repeal statutes.” Jd. at 438.

“Instead, this legislative power is vested exclusively

in Congress, and the exercise of such legislative

power must follow the procedures set forth in the

Constitution” and its Presentment Clause. Terran v.

Secretary of Health and Human Services, 195 F.3d

1302, 1312 (Fed. Cir. 1999); see also Clinton, 524

U.S. at 448-49; INS v. Chadha, 462 U.S. 919, 954

1983(“Repeal of statutes, no less than enactment,

must conform with Art. I” of the Constitution.);

United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1,

14 (1st Cir. 2005) (“to permit an agency by its actions

to repeal an act of Congress . . . would pose grave

constitutional questions of violation of separation of

powers”).

In his concurring opinion in Acree, Chief Justice

Roberts rejected the argument that Section 1503 is

an unconstitutional delegation of legislative power—

24

reasoning that the authorities it confers upon the

President are “akin to waivers that the President is

routinely empowered to make in other areas.” 370

F.3d at 64 n.3. In making this analogy, Chief Justice

Roberts was, as set forth above, acting on the

assumption that presidential authority to exempt

Iraq from provisions of law applicable to terrorist

countries would lapse with the passing of the sunset

provision. If, however, that authority is regarded as

lasting in perpetuity, the analogy to a presidential

waiver breaks down.

As this Court has repeatedly held, if Congress

wishes to delegate its authority to the President or

some other executive official in a manner that passes

constitutional muster, it “must ‘lay down by

legislative act an intelligible principle to which the

person or body authorized to [act] is directed to

conform.” Wa&Asrtman v. American Trucking Ass ns,

531 U.S. 457, 472 (2001) (quoting J.W. Hampton, Jr.,

& Co. v. United States, 276 U.S. 394, 409 (1928)).

By its express terms, Section 1503 does not establish

any such “intelligible principle” to which the

President’s actions were required to conform.

However, as his formal message to Congress

explaining the rationale for his determination

exempting Iraq from terrorism laws makes clear,

implicit in the delegation of authority contained in

Section 1503 was the requirement that the President

determine any such exemption to be in the interest

of the national security of the United States.’

. Message to the Congress Reporting the Declaration of a

National Emergency with Respect to the Development Fund for

Traqg, 39 Weekly Comp. Pres. Doc. 647, 647-648 (May 26, 2003)

(noting that pursuit of terrorism lawsuits against Iraq

25

Indeed, no other interpretation of Section 1503 is

possible, for if that section were construed as

allowing the President to waive the application of

statutory provisions without limit, it would clearly

constitute an unconstitutional delegation of

legislative power.

Inasmuch as the President’s authority to exempt

Iraq from provisions of law applicable to terrorist

states is cabined by the requirement that he

determine (in his admittedly unreviewable

discretion) such exemption to be in the interest of

national security, it must be the case that he can

keep that waiver in place only so long as that

remains his determination. If, for example, prior to

the expiration of the sunset provision, the President

had determined that the exemption he had granted

Iraq was no longer consistent with U.S. national

security interests, he would have been obliged to lift

that exemption. Thus, by its nature, the authority

contained in Section 1503’s second proviso is

temporary in nature.

Under the United States’ interpretation of the

EWSAA, however, Congress delegated to the

President the authority to keep lIraq’s exemption

from provisions of law otherwise applicable to

terrorist states in place, even if he determines that

such exemption is contrary to the national security

interest. Indeed, under the United States’

interpretation, once the sun set on Section 1503’s

authorities, the President would be unab/e to lift

Iraq’s exemption, despite his view that it was

threatens “the national security and foreign policy of the

United States”).

26

undermining U.S. security interests. In other words,

because all of the authorities that Section 1503 gave

the President would have expired with the sunset,

the only way to make provisions of law applicable to

terrorist countries re-applicable to Iraq would be for

Congress to enact new legislation withdrawing Iraq’s

exemption.” Accordingly, under the United States’

interpretation, the delegation of authority contained

in Section 1503 was tantamount to an authority to

rewrite every law applicable to countries that have

supported terrorism to say “except Iraq.”

It is a cardinal principle of _ statutory

construction that where a proffered construction of a

statute “raise[s] serious constitutional problems, the

Court will construe the statute to avoid such

problems unless such construction is plainly

contrary to the intent of Congress.” Ldward J.

DeBartolo Corp. v. Florida Gulf Coaséi Building &

Constr. Trades Council, 485 U.S. 568, 575 (1988); see

also United States v. Jin Fuey Moy, 241 U.S. 394,

5

Any authority the President might have to undo Iraq’s

exemption would have to be implied by statute or be inherent

to his office. Since the passing of Section 1503’s sunset date,

there is no basis for finding any such authority implied under

the EWSAA. And, to the extent the President’s inherent

powers over foreign aftairs might give him the authority to

make provisions of law applicable to terrorist states re-

applicable to Iraq—a dubious proposition—he plainly has no

inherent power to define the jurisdiction of U.S. courts and,

hence, to make Section 1605(a)(7) of the FSIA re-applicable to

Iraq. See, e.g., Palmore v. United States, 411 U.S. 389, 40

(1973); Glidden Co. v. Zdanok, 370 U.S. 530, 551 (1962);

Lockerty v. Phillips, 319 U.S. 182, 187 (1943): Electronic Data

Sys. Corp. v. Social Security Org. of Tran, 508 F. Supp. 1350

(N.D. Tex.), affd in part and vacated in part, 651 F.2d 1007

(5th Cir. 1981).

27

401 (Holmes, J.) (“[a] statute must be construed, if

fairly possible, so as to avoid not only the conclusion

that it is unconstitutional but also grave doubts

upon that score”). Construing the authority Section

1503 gives the President to exempt Iraq from our

terrorism laws as_ being contingent on _ his

determination that such exemption is in our national

security interest and as lasting no longer than the

date set forth in that section’s sunset provision is not

“plainly contrary to the intent of Congress.” In fact,

it is precisely what Congress intended and, hence, it

is the interpretation that must prevail in this case.

II. Absent An Unmistakably Clear Statement Of

Congressional Intent—Of Which There Is

None—Section 1503 Of The EWSAA Cannot

Be Construed As Impliedly Amending Section

1605(a)(7) Of The FSIA.

For the reasons set forth above and in

Respondents’ brief, when read in its context and in

light of the statutory purpose, Section 1503’s second

proviso was clearly intended to give the President

the authority to temporarily exempt Irag from laws,

which, like Section 620A of the Foreign Assistance

Act, restrict aid to and commerce with terrorist

countries. At a minimum, however, even if Section

1503 could plausibly be construed as applying to

Section 1605(a)(7) of the FSIA, that construction is,

as Chief Justice Roberts himself acknowledged in his

concurrence in Acree, neither unequivocally clear

from, nor unavoidably required by, the statutory

text. 370 F.3d at 62 (“I agree with the majority that

this question of statutory interpretation is close, and

I do not suggest that the EWSAA is entirely

28

unambiguous.”). That admission dictates the result

here because a clear and unmistakable expression of

congressional intent is required in order for Section

1503 of the EWSAA to be construed as amending the

jurisdictional grant contained in Section 1605(a)(7)

of the FSIA.

It is a venerable rule of statutory construction—

overlooked by both the majority and the concurring

opinions in Acree— that “repeals by implication are

not favored.” National Ass'n of Homebuilders v.

Detenders of Wi/dlife, 127 S. Ct. 2518, 2532 (2007):

see also United States v. Borden Co., 308 U.S. 188,

198 (1939). This doctrine “applies with even greater

force when,” as here, “the claimed repeal rests solely

upon an Appropriations Act.” Tennessee Valley

Auth. v. Hill, 437 U.S. 153, 190 (1978).

Before joining this Court, Justice Scalia

explained that a “steady adherence” to the

presumption against implied repeal:

is important, primarily to facilitate not the

task of judging but the task of legislating. It

is one of the fundamental ground rules under

which laws are _ framed. Without it,

determining the effect of a bill upon the body

of preexisting law would be inordinately

difficult, and the legislative process would

become distorted by a _ sort of blind

gamesmanship, in which members of

Congress vote for or against a particular

measure according to their varying

estimations of whether its implications will

29

be held to suspend the effects of an earlier

law that they favor or oppose.

United States v. Hansen, 772 F.2d 940, 944 (D.C.

Cir. 1985); see also Regional Rail, 419 U.S. at 134.

As “le]very amendment of a statute effects a partial

repeal,” this rationale is no less applicable to implied

amendments than it is to implied repeals and, hence,

this Court has “repeatedly recognized that implied

amendments are no more favored than implied

repeals.” Homebuilders, 127 S. Ct. at 2533 n. 8; see

also Regional Rail, 419 U.S. 102, 134 (1974); United

States v. Welden, 377 U.S. 95, 103 n. 12 (1964).

Consistent with this principle, a_ legislative

intention to repeal or amend a prior statute will be

found only were such intention is “clear and

manifest.” Homebuilders, 127 S. Ct. at 2532 (2007);

see also Watt v. Alaska, 451 U.S. 259, 267 (1981));

Borden, 308 U.S. at 199. Thus, this Court “will not

infer a statutory repeal ‘unless the later statute

expressly contradict|s] the original act’ or unless

such a construction ‘is absolutely necessary .. . in

order that [the] words [of the later statute] shall

have any meaning at all.” Homebuilders, 127 S. Ct.

at 2532 (quoting Traynor v. Turnage, 485 U.S. 535,

548 (1988)). In other words, absent express

statutory language referencing the earlier statute,

“‘la] new statute will not be read as wholly or even

partially amending a prior one unless there exists a

‘positive repugnancy’ between the provisions of the

new and those of the old that cannot be reconciled.”

Regional Rail, 419 U.S. at 133; see also Borden, 308

U.S. at 199; Hansen, 772 F.2d at 994.

30

By its terms, Section 1503’s second proviso

expressly applies to a single provision of law—

Section 620A of the Foreign Assistance Act.

Accordingly, that proviso can be construed as

amending Section 1605(a)(7) of the FSIA to create an

exemption for Iraq only if the conflict between these

two provisions is irreconcilable. Such “positive

repugnancy” exists between the words in Section

1503’s second proviso and the various provisions of

law that restrict aid to and commerce with terrorist

countries. If Section 1503 were construed as not

reaching those provisions, the phrase “any other

provision of law that applies to countries that have

supported terrorism” would have absolutely “no

meaning at all.”

By contrast, none of the judges on the Acree

panel—Chief Justice Roberts included—thought that

the words “any other provision of law” in Section

1503 of the EWSAA express an unmistakably clear

congressional command to amend the jurisdictional

grant contained in Section 1605(a)(7) of the FSIA to

create an exception for Iraq. Indeed, citing the time-

honored presumption against implied repeals, this

Court has found that the use of similar words did not

constitute the kind of “unambiguous statutory

directive” needed to effect a limitation on habeas

jurisdiction. INS v. St. Cyr, 533 U.S. 289, 299, 312

(2002) (holding that statutory language, which

barred judicial review of final orders of deportation

“notwithstanding any other provision of law,” did

“not speak[] with sufficient clarity to bar jurisdiction

pursuant to the general habeas statute”).’

* See also Calcano-Martinez v. INS, 232 F.3d 328, 338-39 (2d

Cir. 2000) (holding that “notwithstanding any other provision

31

Likewise, in these cases, Section 1503’s second

proviso does not constitute the kind of unmistakable

congressional command that would be necessary to

limit jurisdiction under Section 1605(a)(7) of the

FSIA. That proviso would have ample meaning if,

consistent with the underlying statutory purpose, it

were construed as giving the President authority to

remove the aid and trade barriers to the rebuilding

effort that were posed by Iraq’s designation as a

terrorist state. In other words, Section 1503 of the

EWSAA and section 1605(a)(7) are “capable of

coexistence” and, hence, it is the duty of this Court

“to regard each as effective.” Regional Rail, 419 U.S.

at 133-34.

of law” language in § 242(a2)(C) of the Immigration and

Nationality Act was “not strong enough” to repeal habeas

jurisdiction because it did “not explicitly mention the

jurisdictional statute or the general type of jurisdiction by

name”): Sandoval v. Reno, 166 F.3d 225, 232 (3d Cir. 1999)

(stating that “courts should not lightly presume that a

congressional enactment containing general language effects a

repeal of a jurisdictional statute” and “that only a plain

statement of congressional intent to remove a_ particular

statutory grant of jurisdiction will suffice”).

32

CONCLUSION

For all of the foregoing reasons, the decision of

the Court of Appeals should be affirmed and the

cases remanded for further proceedings.

Respectfully submitted,

MICHAEL D. LIEDER DANIEL WOLF

Sprenger & Lang, P.L.L.C Law Offices of Daniel Wolf

1400 I Street, NW, 1220 N Street, NW,

Suite 500 Suite PH2

Washington, D.C. 20005 Washington, DC 20005

(202) 772-1159 (202) 842-2170

Counsel for Amici Curiae

March 20, 2009

33

Vine, et al. v. Republic of Trag Plaintiffs-Hostages

Khalid Abdu

Sergio Ado

Felipe Alayon

Concepcion E. Alayén

John Alexander

Ernest W. Alexander

Firas A.S. Alexander

Nabeel A.S. Alexander

Rena E. Alexander

Rehana Ali

Syed Akhtar Ali

S. Hussain Ali

Alfred E. Allen

Kerry E. N. Allen

Shawn K. N. Allen

Kelly-Lynn Al-Muzayen

Hamad Faisal Al-Muzayen

Aisha S.Y. Al-Sadoun

Bobby Anderson

Genolia Anderson

Gerald W. Andre

Michael Antonelli

Mae Antonelli

Allen Antonelli

Tania Antonelli

Lutfee Atieh

Ramsey Atich

Marcia Joy Bailey

Marcia Joy Bailey (Executrix of the

Estate of Desmond M. Bailey)

Robert F. Baima

Gerald John Benard

Michael C. Bender

la

Mary A. Bender

Timothy P. Bender

Roland Bergheer

Keith Shane Bodiford

Heidi Brill-Edwards

Harry Brill-Edwards (Estate)

Russel E. Burford, Jr.

James Calvin

Phyllis J. Calvin

Robert Frederick Cameron

Derin Cameron

Joseph Marlee Cameron

Sarah Nile Cameron

Michael Capps

James E. Carroll

George Charchalis

Naomi W. Charchalis

John F. Charlton, Sr.

Margriet C. Charlton

John F. Charlton, Jr.

Irene Charlton-Haupt

Richard E. Clay

John Henry Cole (Estate)

Luke T. Converse

J. Crawford Kerr (Executor, of

The Estate of Lloyd Culbertson)

Todd L. Davis

Marleine Davis

Dylan James Davis

William T. Deaton

Joan Carole Donahue Mark

Don J. Doran

Courtney Downs

Hunter Downs

Natasha Downs

2a

Dale E. Eads

Philip L. Edwards

Todd Edwards

Thomas Ewald

Suhaila Y. Farhat

Catherine Fronabarger

Jerry L. Fronabarger

Rosemary Fronabarger

Sharon Fronabarger

Elkin A. Garcia

John O’Neil Gerald, Jr.

John Thomas Gordon

Dana J. Gould

Nancy L. Groce

E. Charles Grose, Jr.

Charles P. Hall

Marie J. P. Hall

El] Miloudi Hamid

Robert Hanby

Beth A. Hanken

Myron Verlin Hanson, Jr.

Hugh M. Hardaway

Patricia Heller

Mark J. Herzberg

Bobby D. Higgins

Odessa Higgins

Charles Hodde

John Hogan

Roberta Hogan

Dennis D. Holstin

Gloria Jean Hubbard

Lorin J. Hubbard

Daniel K. Hudson

George F. Jaquith

Jason Jarrett

Edward S. Johnson

Jeffrey Jugar

Tommy Justus

Tommy Justus (Executor of

The Estate of Helen Justus)

Ormon M. Keathley

Charles P. Keegan

Stephen D. Kelly

Stephanie Kersey

Janete Komatsuzaki

Maria Latham

Maria Latham (Executrix of the

Estate of Donald Latham)

Thomas Litrenta

Philip Liu

Mildred Logsdon

Carieen Lynn Lord

Vergil Eugene Lord

Christina M. Lord

Elsie Loyola

Elsie Loyola (Executrix of

the Estate of Julio Loyola)

Rhoi M. Maney

William Robert McCahan

Gloria Toro McCahan

Leonard McCann, Jr.

Bruce A. McKinnon

Michelle H. McQuain

William M. McQuain

G. Scott Mindrum

Antonio A. Mireles

Eleanor R. Mireles

Maria A. Mireles

Masood A. Mirza

Nasreen Mirza

4a

Sayyeda Mirza

Ralph E. Montgomery

Ellen Mooneyham

John Mooneyham

Nathan Mooneyham

Sylaja Murikipudi

Joseph Murphy

Larry Scott Murray (Executor of the

Estate of Larry Clifford Murray)

Sandy Murray

Sravan Narayan

Srinika Narayan

Vernon R. Nored

John Norman

Hassan S. Omar

Michael Penniman

Miriam N. Prabhakar

Emmanuel T. Prabhakar

Joshua T. Prabhakar

Stephen A. Prabhakar

Fatima M. Qaddura

Anthony Raymond

Wannee K. Riffle (Executrix of the

Estate of Madison R. Je)

John R. Ritter

Edison B. Roberts

Paula J. Roberts

Raymond Robertson

Paul G. Rodriguez

James R. Rubino

B. George Saloom

Deborah B. Saloom

G. Preston Saloom

Jeffrey Alan Sanislo

Chong Schmidt

Dwayne Schmidt

Julie C. Schultz

Marilyn J. Schultz

William L. Schultz

Lee Sender

Jagan Sharma

Faye L. Sheraidah

Robert Scott Sherrill

Osama Shoufi

Joni Shoufi

Hristaki Sofokidis

Jeanette H. Sofokidis

Kathleen B. Stephens

William L. Stephens

Blanca V. Taylor

Grandall S. Taylor

Gregory S. Taylor

John E. Thompson

Gerhard Tilke

Joan Tilke

Peter Timko

Randall N. Trinh

Jennifer Lynn Ulery

John T. Ulery

Lourens Van Engelen

Monterey L. Van Engelen

Brienna Van Rossum

Cara Balogh (f/k/a Van Rossum)

Holly Van Rossum

Tom Van Rossum

Laurens Vellekoop

Rande Vellekoop

Michael A. Villarreal

James S. Vine

Mark T. Ward

6a

Edward J. Werner, Jr.

Charles F. Wickwire

Mary F. Wickwire

7a