(Slip Opinion) OCTOBER TERM, 2008 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

REPUBLIC OF IRAQ v. BEATY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT 

No. 07–1090. Argued April 20, 2009—Decided June 8, 2009* 

The Foreign Sovereign Immunities Act of 1976 (FSIA) prohibits suits 

against other countries in American courts, 28 U. S. C. §1604, with

certain exceptions. One exception, §1605(a)(7) (now repealed),

stripped a foreign state of immunity in any suit arising from certain 

acts of terrorism that occurred when the state was designated as a 

sponsor of terrorism under §6(j) of the Export Administration Act of

1979 or §620A of the Foreign Assistance Act of 1961. 

Iraq was designated as a sponsor of terrorism in 1990, but in 2003,

following the American-led invasion of Iraq, Congress enacted the

Emergency Wartime Supplemental Appropriations Act (EWSAA),

§1503 of which included a proviso clause (the second in a series of

eight) authorizing the President to “make inapplicable with respect to

Iraq [§]620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism.”

Although President Bush exercised that authority, the D. C. Circuit 

held in its 2004 Acree decision that the EWSAA did not permit the

President to waive §1605(a)(7), and thereby restore Iraq’s sovereign

immunity, for claims arising from actions Iraq took while designated

as a sponsor of terrorism. 

Thereafter, Congress repealed §1605(a)(7) in §1083(b)(1)(A)(iii) of

the National Defense Authorization Act for Fiscal Year 2008 (NDAA)

and replaced it with a new, roughly similar exception, §1083(a). The 

NDAA also declared that nothing in EWSAA “ever authorized, directly or indirectly, the making inapplicable of any provision of [the

FSIA] or the removal of the jurisdiction of any court” (thus purport-

—————— 

*Together with No. 08–539, Republic of Iraq et al. v. Simon et al., 

also on certiorari to the same court. 
2 REPUBLIC OF IRAQ v. BEATY 

Syllabus 

ing to ratify Acree), §1083(c)(4); and authorized the President to

waive “any provision of this section with respect to Iraq” under certain conditions, §1083(d). On the same day the President signed the

NDAA into law he also waived all of §1083’s provisions as to Iraq. 

Respondents filed these suits against Iraq in early 2003, alleging

mistreatment by Iraqi officials during and after the 1991 Gulf War.

Under Acree, the courts below refused to dismiss either case on jurisdictional grounds. The D. C. Circuit also rejected Iraq’s alternative 

argument that even if §1605(a)(7)’s application to it survived the 

President’s EWSAA waiver, the provision was repealed by NDAA 

§1083(b)(1)(A)(iii); and that the President had waived NDAA 

§1083(a)’s new exception with respect to Iraq under his §1083(d) authority. The court held instead that it retained jurisdiction over

cases pending against Iraq when the NDAA was enacted. 

Held: Iraq is no longer subject to suit in federal court. Pp. 6–17.

(a) The District Court lost jurisdiction over both suits in May 2003,

when the President exercised his EWSAA authority to make 

§1605(a)(7) “inapplicable with respect to Iraq.” Pp. 6–13.

(i) Iraq’s (and the United States’) reading of EWSAA §1503’s second proviso as sweeping in §1605(a)(7)’s terrorism exception to foreign sovereign immunity is straightforward. In the proviso’s terms,

the exception is a “provision of law” (indisputably) that “applies to”

(strips immunity from) “countries that have supported terrorism” (as

designated pursuant to certain statutory provisions). Because he exercised his waiver authority with respect to “all” provisions of law encompassed by the second proviso, his actions made §1605(a)(7) “inapplicable” to Iraq. Pp. 6–7.

(ii) Acree’s resistance to the above construction was based on a 

sophisticated attempt to construe EWSAA §1503’s second proviso as 

limiting that section’s principal clause, which authorized suspension

of “any provision of the Iraq Sanctions Act of 1990.” While a proviso’s 

“general office . . . is to except something from the enacting clause, or 

to qualify and restrain its generality,” United States v. Morrow, 266 

U. S. 531, 534, another recognized use is “to introduce independent 

legislation,” id., at 535, which was the function of the proviso here. 

In any event, §1605(a)(7) falls within the scope of the proviso even 

accepting the narrower interpretation adopted by the Acree decision. 

Pp. 7–11.

(iii) Respondents’ other objections to the straightforward interpretation of EWSAA §1503’s proviso are rejected. Pp. 11–12.

(iv) Nothing in the NDAA changes the above analysis. Although 

NDAA §1083(c)(4) appears to ratify Acree, this Court need not decide 

whether such a ratification is effective because §1083(d)(1) authorized the President to “waive any provision of this section with respect 
Cite as: 556 U. S. ____ (2009) 3 

Syllabus 

to Iraq,” and he waived “all” such provisions, including §1083(c)(4).

Pp. 12–13. 

(b) The Court rejects the argument that §1605(a)(7)’s inapplicability does not bar claims arising from Iraq’s conduct prior to the President’s waiver. In order to exercise jurisdiction over these cases, the

District Court had to “apply” §1605(a)(7) with respect to Iraq, but the 

President’s waiver made that provision “inapplicable.” No retroactivity problem is posed by this construction, if only because the primary

conduct by Iraq that forms the basis for these suits actually occurred

before §1605(a)(7)’s enactment. Pp. 13–16.

(c) Respondents also argue that EWSAA §1503’s sunset clause—

under which “the authorities contained in [that] section” expired in

2005—revived §1605(a)(7) and restored jurisdiction as of the sunset

date. But expiration of the §1503 authorities is not the same as cancellation of the effect of the prior valid exercise of those authorities. 

Pp. 16–17. 

No. 07–1090, and No. 08–539, 529 F. 3d 1187, reversed. 

SCALIA, J., delivered the opinion for a unanimous Court. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

Nos. 07–1090 and 08–539 

REPUBLIC OF IRAQ, PETITIONER 

07–1090 v. 

JORDAN BEATY ET AL. 

REPUBLIC OF IRAQ, ET AL., PETITIONERS 

08–539 v. 

ROBERT SIMON ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

[June 8, 2009]

 JUSTICE SCALIA delivered the opinion of the Court. 

We consider in these cases whether the Republic of Iraq 

remains subject to suit in American courts pursuant to the

terrorism exception to foreign sovereign immunity, now 

repealed, that had been codified at 28 U. S. C. §1605(a)(7). 

I 

A 

Under the venerable principle of foreign sovereign immunity, foreign states are ordinarily “immune from the

jurisdiction of the courts of the United States and of the

States,” §1604. See generally Schooner Exchange v. 

McFaddon, 7 Cranch 116 (1812). But the statute embodying that principle—the Foreign Sovereign Immunities Act

of 1976 (FSIA), 28 U. S. C. §1602 et seq.—recognizes a

number of exceptions; if any of these is applicable, the 

state is subject to suit, and federal district courts have 
2 REPUBLIC OF IRAQ v. BEATY 

Opinion of the Court 

jurisdiction to adjudicate the claim. §1330(a); Verlinden 

B. V. v. Central Bank of Nigeria, 461 U. S. 480, 489 (1983). 

In 1996, Congress added to the list of statutory exceptions one for state sponsors of terrorism, which was codified at 28 U. S. C. §1605(a)(7). Subject to limitations not 

relevant here, that exception stripped immunity in any

suit for money damages 

“against a foreign state 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 or resources . . . for such an act . . . 

except that the court shall decline to hear a claim under this paragraph— 

“(A) if the foreign state was not designated as a

state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U. S. C. App.

2405(j)) or section 620A of the Foreign Assistance 

Act of 1961 (22 U. S. C. 2371) at the time the act 

occurred . . . .” 

In brief, §1605(a)(7) stripped immunity from a foreign

state for claims arising from particular acts, if those acts

were taken at a time when the state was designated as a 

sponsor of terrorism. 

B 

In September 1990, Acting Secretary of State Lawrence

Eagleburger formally designated Iraq, pursuant to §6(j) of 

the Export Administration Act of 1979, as redesignated 

and amended, 99 Stat. 135, 50 U. S. C. App. §2405(j), as “a 

country which has repeatedly provided support for acts of

international terrorism,” 55 Fed. Reg. 37793. Over a 

decade later, in March 2003, the United States and a 

coalition of allies initiated military action against that 

country. In a matter of weeks, the regime of Iraqi dictator

Saddam Hussein collapsed and coalition forces occupied 
Cite as: 556 U. S. ____ (2009) 3 

Opinion of the Court 

Baghdad. American attention soon shifted from combat 

operations to the longer term project of rebuilding Iraq, 

with the ultimate goal of creating a stable ally in the 

region.

Toward that end, Congress enacted in April 2003 the

Emergency Wartime Supplemental Appropriations Act

(EWSAA), 117 Stat. 559. Section 1503 of that Act authorized the President to “make inapplicable with respect to 

Iraq section 620A of the Foreign Assistance Act of 1961 or 

any other provision of law that applies to countries that 

have supported terrorism.” Id., at 579. President George

W. Bush exercised that authority to its fullest extent in

May 2003, declaring “inapplicable with respect to Iraq

section 620A of the Foreign Assistance Act of 1961 . . . and 

any other provision of law that applies to countries that 

have supported terrorism.” 68 Fed. Reg. 26459.

Shortly thereafter, the United States Court of Appeals 

for the District of Columbia Circuit had occasion to consider whether that Presidential action had the effect of 

rendering inapplicable to Iraq the terrorism exception to

foreign sovereign immunity. The Court concluded in a 

divided panel decision that the President’s EWSAA authority did not permit him to waive §1605(a)(7), and 

thereby restore sovereign immunity to Iraq, for claims

arising from acts it had taken while designated as a sponsor of terror. Acree v. Republic of Iraq, 370 F. 3d 41, 48 

(2004). Because Iraq succeeded in having the claims

against it dismissed on other grounds, id., at 59–60, it 

could not seek certiorari to challenge the D. C. Circuit’s 

interpretation of the EWSAA. 

C 

There is yet another legislative enactment, and yet

another corresponding executive waiver, that bear on the 

question presented. The National Defense Authorization 

Act for Fiscal Year 2008 (NDAA), 122 Stat. 3, was passed 
4 REPUBLIC OF IRAQ v. BEATY 

Opinion of the Court 

in January 2008. That Act (1) repealed the FSIA’s terrorism exception, §1083(b)(1)(A)(iii); (2) replaced it with a

new, roughly similar exception, §1083(a); (3) declared that

nothing in §1503 of the EWSAA had “ever authorized, 

directly or indirectly, the making inapplicable of any

provision of chapter 97 of title 28, United States Code, or 

the removal of the jurisdiction of any court of the United

States” (thus purporting to ratify the Court of Appeals’ 

Acree decision), §1083(c)(4), 122 Stat. 343; and (4) authorized the President to waive “any provision of this section 

with respect to Iraq” so long as he made certain findings 

and so notified Congress within 30 days, §1083(d), id., at 

343–344. 

The last provision was added to the NDAA after the

President vetoed an earlier version of the bill, which did 

not include the waiver authority. The President’s veto 

message said that the bill “would imperil billions of dollars 

of Iraqi assets at a crucial juncture in that nation’s reconstruction efforts.” Memorandum to the House of Representatives Returning Without Approval the “National

Defense Authorization Act for Fiscal Year 2008,” 43 

Weekly Comp. of Pres. Doc. 1641 (2007). Only when Congress added the waiver authority to the NDAA did the 

President agree to approve it; and on the same day he

signed it into law he also officially waived “all provisions

of section 1083 of the Act with respect to Iraq,” 73 Fed.

Reg. 6571 (2008). 

II 

We consider today two cases that have been navigating 

their way through the lower courts against the backdrop of 

the above-described congressional, military, Presidential, 

and judicial actions. Respondents in the Simon case are 

American nationals (and relatives of those nationals) who 

allege that they were captured and cruelly mistreated by 

Iraqi officials during the 1991 Gulf War. The Beaty re-
Cite as: 556 U. S. ____ (2009) 5 

Opinion of the Court 

spondents are the children of two other Americans, Kenneth Beaty and William Barloon, who are alleged to have

been similarly abused by the regime of Saddam Hussein in 

the aftermath of that war. Each set of respondents filed

suit in early 2003 against Iraq in the United States District Court for the District of Columbia, alleging violations

of local, federal, and international law. 

Respondents invoked the terrorism exception to foreign

sovereign immunity, and given Acree’s holding that the

President had not rendered that statutory provision inapplicable to Iraq, the District Court refused to dismiss 

either case on jurisdictional grounds. In Beaty, after the 

District Court denied Iraq’s motion to dismiss, 480 

F. Supp. 2d 60, 70 (2007), Iraq invoked the collateral order 

doctrine to support an interlocutory appeal. See Mitchell 

v. Forsyth, 472 U. S. 511, 524–529 (1985). In Simon, the 

District Court determined that the claims were time 

barred and dismissed on that alternative basis, Vine v. 

Republic of Iraq, 459 F. Supp. 2d 10, 25 (2006), after 

which the Simon respondents appealed.

 In the Beaty appeal, Iraq (supported by the United 

States as amicus) requested that the Court of Appeals for 

the District of Columbia Circuit reconsider Acree’s holding

en banc. The Court denied that request over the dissent of

Judges Brown and Kavanaugh, and a panel then summarily affirmed in an unpublished order the District Court’s 

denial of Iraq’s motion to dismiss. No. 07–7057 (Nov. 21, 

2007) (per curiam), App. to Pet. for Cert. 1a–2a. 

 While the Simon appeal was still pending, Congress

enacted the NDAA, and the Court of Appeals requested

supplemental briefing addressing the impact of that legislation on the court’s jurisdiction. Iraq contended, as an

alternative argument to its position that Acree was 

wrongly decided, that even if 28 U. S. C. §1605(a)(7)’s 

application to Iraq survived the President’s EWSAA 

waiver, the provision was repealed by §1083(b)(1)(A)(iii) of 
6 REPUBLIC OF IRAQ v. BEATY 

Opinion of the Court 

the NDAA, 122 Stat. 341; and that the new terrorism 

exception to sovereign immunity—which was created by 

the NDAA and codified at 28 U. S. C. A. §1605A (July 

2008 Supp.)—was waived by the President with respect to 

Iraq pursuant to his NDAA authority. 

The Court of Appeals rejected that argument, holding 

instead, based on a close reading of the statutory text, that

“the NDAA leaves intact our jurisdiction over cases . . .

that were pending against Iraq when the Congress enacted the NDAA.” 529 F. 3d 1187, 1194 (2008). The panel

then reversed the District Court’s determination that the 

Simon respondents’ claims were untimely, id., at 1195– 

1196, and rebuffed Iraq’s request for dismissal under the 

political question doctrine, id., at 1196–1198. 

Iraq sought this Court’s review of both cases, asking us

to determine whether under current law it remains subject to suit in the federal courts. We granted certiorari, 

555 U. S. ___ (2009), and consolidated the cases. 

III 

A 

Section 1503 of the EWSAA consists of a principal

clause, followed by eight separate proviso clauses. The 

dispute in these cases concerns the second of the provisos. 

The principal clause and that proviso read: 

“The President may suspend the application of any

provision of the Iraq Sanctions Act of 1990: . . . Provided further, That the President may make inapplicable with respect to Iraq section 620A of the Foreign 

Assistance Act of 1961 or any other provision of law 

that applies to countries that have supported terrorism . . . .” 117 Stat. 579. 

Iraq and the United States both read the quoted proviso’s

residual clause as sweeping in the terrorism exception to

foreign sovereign immunity. Certainly that reading is, as 
Cite as: 556 U. S. ____ (2009) 7 

Opinion of the Court 

even the Acree Court acknowledged, “straightforward.” 

370 F. 3d, at 52. 

Title 28 U. S. C. §1605(a)(7)’s exception to sovereign 

immunity for state sponsors of terrorism stripped jurisdictional immunity from a country unless “the foreign state 

was not designated as a state sponsor of terrorism.” This 

is a “provision of law” (indisputably) that “applies to”

(strips immunity from) “countries that have supported

terrorism” (as designated pursuant to certain statutory 

provisions). Of course the word “any” (in the phrase “any

other provision of law”) has an “expansive meaning,” 

United States v. Gonzales, 520 U. S. 1, 5 (1997), giving us

no warrant to limit the class of provisions of law that the 

President may waive. Because the President exercised his 

authority with respect to “all” provisions of law encompassed by the second proviso, his actions made §1605(a)(7) 

“inapplicable” to Iraq.

To a layperson, the notion of the President’s suspending

the operation of a valid law might seem strange. But the 

practice is well established, at least in the sphere of foreign affairs. See United States v. Curtiss-Wright Export 

Corp., 299 U. S. 304, 322–324 (1936) (canvassing precedents from as early as the “inception of the national government”). The granting of Presidential waiver authority 

is particularly apt with respect to congressional elimination of foreign sovereign immunity, since the granting or

denial of that immunity was historically the case-by-case

prerogative of the Executive Branch. See, e.g., Ex parte 

Peru, 318 U. S. 578, 586–590 (1943). It is entirely unremarkable that Congress, having taken upon itself in the 

FSIA to “free the Government” from the diplomatic pressures engendered by the case-by-case approach, Verlinden, 

461 U. S., at 488, would nonetheless think it prudent to 

afford the President some flexibility in unique circumstances such as these. 
8 REPUBLIC OF IRAQ v. BEATY 

Opinion of the Court 

B 

The Court of Appeals in Acree resisted the above construction, primarily on the ground that the relevant text is

found in a proviso. We have said that, at least presumptively, the “grammatical and logical scope [of a proviso] is 

confined to the subject-matter of the principal clause.” 

United States v. Morrow, 266 U. S. 531, 534–535 (1925). 

Using that proposition as a guide, the Acree panel strove 

mightily to construe the proviso as somehow restricting

the principal clause of EWSAA §1503, which authorized 

the President to suspend “any provision of the Iraq Sanctions Act of 1990,” 117 Stat. 579. 

In the Court of Appeals’ view, the second proviso related

to that subsection of the Iraq Sanctions Act (referred to in 

the principal provision) which dictated that certain enumerated statutory provisions, including §620A of the 

Foreign Assistance Act of 1961 and “all other provisions of 

law that impose sanctions against a country which has

repeatedly provided support for acts of international terrorism,” shall be fully enforced against Iraq. §586F(c), 104

Stat. 2051 (emphasis added). The panel understood the

second EWSAA proviso as doing nothing more than clarifying that the authority granted by the principal clause (to 

suspend any part of the Iraq Sanctions Act) included the

power to make inapplicable to Iraq the various independent provisions of law that §586F(c) of the Iraq Sanctions 

Act instructed to be enforced against Iraq—which might

otherwise continue to apply of their own force even without the Iraq Sanctions Act. However, the residual clause 

of §586F(c) encompasses only provisions that “impose

sanctions”; and, in the Court of Appeals’ view, that excludes §1605(a)(7), which is a rule going instead to the

jurisdiction of the federal courts. Thus, the EWSAA proviso swept only as broadly as §586F(c), and therefore did 

not permit the President to waive the FSIA terrorism

exception. 
Cite as: 556 U. S. ____ (2009) 9 

Opinion of the Court 

This is a highly sophisticated effort to construe the

proviso as a limitation upon the principal clause. Ultimately, however, we think that effort neither necessary

nor successful. It is true that the “general office of a proviso is to except something from the enacting clause, or to 

qualify and restrain its generality.” Morrow, supra, at 

534. But its general (and perhaps appropriate) office is

not, alas, its exclusive use. Use of a proviso “to state a 

general, independent rule,” Alaska v. United States, 545 

U. S. 75, 106 (2005), may be lazy drafting, but is hardly a

novelty. See, e.g., McDonald v. United States, 279 U. S. 

12, 21 (1929). Morrow itself came with the caveat that a 

proviso is sometimes used “to introduce independent

legislation.” 266 U. S., at 535. We think that was its 

office here. The principal clause granted the President a 

power; the second proviso purported to grant him an 

additional power. It was not, on any fair reading, an

exception to, qualification of, or restraint on the principal 

power.

Contrasting the second EWSAA proviso to some of the

other provisos illustrates the point. For example, the first

proviso cautioned that “nothing in this section shall affect 

the applicability of the Iran-Iraq Arms Non-Proliferation 

Act of 1992,” 117 Stat. 579, and the third forbade the 

export of certain military equipment “under the authority

of this section.” Ibid. Both of these plainly sought to

define and limit the authority granted by the principal 

clause. The fourth proviso, however, mandated that “section 307 of the Foreign Assistance Act of 1961 shall not 

apply with respect to programs of international organizations for Iraq,” ibid., and it is impossible to see how that 

self-executing suspension of a distinct statute in any way 

cabined or clarified the principal clause’s authorization to

suspend the Iraq Sanctions Act. 

There are other indications that the second proviso’s 

waiver authority was not limited to the statutory provi-
10 REPUBLIC OF IRAQ v. BEATY 

Opinion of the Court 

sions embraced by §586F(c) of the Iraq Sanctions Act. If 

that is all it was meant to accomplish, why would Congress not simply have tracked §586F(c)’s residual clause?

Instead of restricting the President’s authority to statutes

that “impose sanctions” on sponsors of terror, the EWSAA

extended it to any statute that “applies” to such states. 

That is undoubtedly a broader class.

Even if the best reading of the EWSAA proviso were 

that it encompassed only statutes that impose sanctions or 

prohibit assistance to state sponsors of terrorism, see 

Acree, 370 F. 3d, at 54, we would disagree with the Court 

of Appeals’ conclusion that the FSIA exception is not such

a law. Allowing lawsuits to proceed certainly has the

extra benefit of facilitating the compensation of injured 

victims, but the fact that §1605(a)(7) targeted only foreign

states designated as sponsors of terrorism suggests that

the law was intended as a sanction, to punish and deter 

undesirable conduct. Stripping the immunity that foreign

sovereigns ordinarily enjoy is as much a sanction as eliminating bilateral assistance or prohibiting export of munitions (both of which are explicitly mandated by §586F(c) of 

the Iraq Sanctions Act). The application of this sanction

affects the jurisdiction of the federal courts, but that fact

alone does not deprive it of its character as a sanction. 

It may well be that when Congress enacted the EWSAA 

it did not have specifically in mind the terrorism exception

to sovereign immunity. The Court of Appeals evidently

found that to be of some importance. Id., at 56 (noting 

there is “no reference in the legislative history to the

FSIA”). But the whole value of a generally phrased residual clause, like the one used in the second proviso, is that 

it serves as a catchall for matters not specifically contemplated—known unknowns, in the happy phrase coined by

Secretary of Defense Donald Rumsfeld. Pieces of Intelligence: The Existential Poetry of Donald H. Rumsfeld 2 (H.

Seely comp. 2003). If Congress wanted to limit the waiver 
Cite as: 556 U. S. ____ (2009) 11 

Opinion of the Court 

authority to particular statutes that it had in mind, it 

could have enumerated them individually.

We cannot say with any certainty (for those who think 

this matters) whether the Congress that passed the 

EWSAA would have wanted the President to be permitted 

to waive §1605(a)(7). Certainly the exposure of Iraq to 

billions of dollars in damages could be thought to jeopardize the statute’s goal of speedy reconstruction of that 

country. At least the President thought so. And in the 

“vast external realm, with its important, complicated, 

delicate and manifold problems,” Curtiss-Wright Export 

Corp., 299 U. S., at 319, courts ought to be especially wary 

of overriding apparent statutory text supported by executive interpretation in favor of speculation about a law’s 

true purpose.1 

C 

Respondents advance two other objections to the 

straightforward interpretation of the EWSAA proviso. 

First, in a less compelling variant of the D. C. Circuit’s

approach, the Simon respondents argue that “section 620A 

of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported 

terrorism” means section 620A of the Foreign Assistance 

Act or any other provision of law cited therein. The provision would thus allow the President to make inapplicable 

to Iraq the statutes that §620A precludes from being used 

to provide support to terror-sponsoring nations. Not to 

put too fine a point upon it, that is an absurd reading, not 

—————— 

1The eighth proviso of EWSAA §1503 says that absent further congressional action, “the authorities contained in this section shall expire

on September 30, 2004.” 117 Stat. 579. The Court of Appeals expressed doubt that Congress would have wanted federal-court jurisdiction to disappear for a year and then suddenly return. Acree v. Republic of Iraq, 370 F. 3d 41, 56–57 (CADC 2004). Our analysis of the 

sunset provision, see Part V, infra, disposes of that concern. 
12 REPUBLIC OF IRAQ v. BEATY 

Opinion of the Court 

only textually but in the result it produces: It would mean

that the effect of the EWSAA was to permit the President 

to exclude Iraq from, rather than include it within, such 

beneficent legislation as the Food for Peace Act of 1966, 7

U. S. C. §1691 et seq.

Both respondents also invoke the canon against implied 

repeals, TVA v. Hill, 437 U. S. 153, 190 (1978), but that 

canon has no force here. Iraq’s construction of the statute 

neither rests on implication nor effects a repeal. The 

EWSAA proviso expressly allowed the President to render 

certain statutes inapplicable; the only question is its 

scope. And it did not repeal anything, but merely granted

the President authority to waive the application of particular statutes to a single foreign nation. Cf. Clinton v. 

City of New York, 524 U. S. 417, 443–445 (1998). 

D 

We must consider whether anything in the subsequent 

NDAA legislation changes the above analysis. In particular, §1083(c)(4) of that statute specifically says that 

“[n]othing in section 1503 of the [EWSAA] has ever authorized, directly or indirectly, the making inapplicable of

any provision of chapter 97 of title 28, United States Code, 

or the removal of the jurisdiction of any court of the 

United States.” 122 Stat. 343. This looks like a ratification by Congress of the conclusion reached in the Acree 

decision. 

Is such a ratification effective? The NDAA is not subsequent legislative history, as Iraq claims, cf. Sullivan v. 

Finkelstein, 496 U. S. 617, 632 (1990) (SCALIA, J., concurring in part); rather, it is binding law, approved by the

Legislature and signed by the President. Subsequent

legislation can of course alter the meaning of an existing

law for the future; and it can even alter the past operation

of an existing law (constitutional objections aside) if it 

makes that retroactive operation clear. Landgraf v. USI 
Cite as: 556 U. S. ____ (2009) 13 

Opinion of the Court 

Film Products, 511 U. S. 244, 267–268 (1994). To tell the 

truth, however, we are unaware of any case dealing with 

the retroactive amendment of a law that had already 

expired, as the EWSAA had here. And it is doubtful 

whether Congress can retroactively claw back power it has 

given to the Executive, invalidating Presidential action 

that was valid when it was taken. Thankfully, however,

we need not explore these difficulties here. 

In §1083(d)(1) of the NDAA, the President was given

authority to “waive any provision of this section with

respect to Iraq.” 122 Stat. 343. The President proceeded

to waive “all” provisions of that section as to Iraq, including (presumably) §1083(c)(4). 73 Fed. Reg. 6571. The Act 

can therefore add nothing to our analysis of the EWSAA. 

Respondent Beaty objects that the President cannot waive 

a fact. But neither can Congress legislate a fact. Section 

1083(c)(4) could change our interpretation of the disputed 

EWSAA language only if it has some substantive effect, 

changing what would otherwise be the law. And if the 

President’s waiver does anything, it eliminates any substantive effect that the NDAA would otherwise have on 

cases to which Iraq is a party.2 

IV 

Having concluded that the President did render 28 

U. S. C. §1605(a)(7) “inapplicable with respect to Iraq,” 

and that such action was within his assigned powers, we

consider respondents’ argument that the inapplicability of 

—————— 

2Respondents contend that the NDAA waiver is irrelevant because

the President’s veto of the initial version of the bill—which did not 

include the waiver authority—was defective. We need not inquire into

that point, since Congress (evidently thinking the veto effective) enacted a new bill that was identical in all material respects but for the

addition of presidential waiver authority. Since that authority would 

be nugatory, and the rest of the new law utterly redundant, if a law 

resulting from the former bill remained in effect, that law would have

been effectively repealed. 
14 REPUBLIC OF IRAQ v. BEATY 

Opinion of the Court 

the provision does not bar their claims, since they arise 

from Iraq’s conduct prior to the President’s waiver. Any

other interpretation, they say, would cause the law to

operate in a disfavored retroactive fashion. 

This argument proceeds as follows: The FSIA exception 

becomes “applicable” to a foreign state when that foreign

state is designated as a sponsor of terrorism. In parallel

fashion, rendering the exception “inapplicable” should be

equivalent to removing the state’s designation. And under 

§1605(a)(7), jurisdiction turned on the foreign state’s

designation “at the time the act [giving rise to the claim] 

occurred.” On this reading, the President’s waiver meant

only that Iraq could not be sued pursuant to §1605(a)(7) 

for any future conduct, even though it technically remained designated as a state sponsor of terrorism. 

Respondents support this interpretation with a policy

argument and a canon of construction. First, why would 

Congress have sought to give Iraq better treatment than 

any other state that saw the error of its ways, reformed its

behavior, and was accordingly removed from the list of 

terror-sponsoring regimes? See Acree, 370 F. 3d, at 56 

(calling such a result “perplexing”). Providing immunity

for future acts is one thing, but wiping the slate clean is

quite another. Second, this Court has often applied a

presumption that, absent clear indication to the contrary,

statutory amendments do not apply to pending cases. 

Landgraf, supra, at 280. A narrow reading of “inapplicable” would better comport with that presumption. 

As a textual matter, the proffered definition of “inapplicable” is unpersuasive. If a provision of law is “inapplicable” then it cannot be applied; to “apply” a statute is “[t]o 

put [it] to use.” Webster’s New International Dictionary 

131 (2d ed. 1954). When the District Court exercised 

jurisdiction over these cases against Iraq, it surely was

putting §1605(a)(7) to use with respect to that country.

Without the application of that provision, there was no 
Cite as: 556 U. S. ____ (2009) 15 

Opinion of the Court 

basis for subject-matter jurisdiction. 28 U. S. C. §§1604, 

1330(a). If Congress had wanted to authorize the President merely to cancel Iraq’s designation as a state sponsor 

of terrorism, then Congress could have done so.

As a policy matter, moreover, we do not find that result

particularly “perplexing.” As then-Judge Roberts explained in his separate opinion in Acree, Congress in 2003 

“for the first time confronted the prospect that a friendly 

successor government would, in its infancy, be vulnerable 

under Section 1605(a)(7) to crushing liability for the actions of its renounced predecessor.” 370 F. 3d, at 61 (opinion concurring in part and concurring in judgment) (emphasis in original). The Government was at the time 

spending considerable sums of money to rebuild Iraq, see

Rogers, Congress Gives Initial Approval for War Funding,

Airline Aid, Wall Street Journal, Apr. 4, 2003, p. A10. 

What would seem perplexing is converting a billion-dollar 

reconstruction project into a compensation scheme for a

few of Saddam’s victims. 

As for the judicial presumption against retroactivity,

that does not induce us to read the EWSAA proviso more

narrowly. Laws that merely alter the rules of foreign 

sovereign immunity, rather than modify substantive

rights, are not operating retroactively when applied to

pending cases. Foreign sovereign immunity “reflects 

current political realities and relationships,” and its availability (or lack thereof) generally is not something on 

which parties can rely “in shaping their primary conduct.” 

Republic of Austria v. Altmann, 541 U. S. 677, 696 (2004); 

see also id., at 703 (SCALIA, J., concurring).

In any event, the primary conduct by Iraq that forms

the basis for these suits actually occurred prior to the 

enactment of the FSIA terrorism exception in 1996. See 

Saudi Arabia v. Nelson, 507 U. S. 349, 351 (1993). That 

is, Iraq was immune from suit at the time it is alleged to

have harmed respondents. The President’s elimination of 
16 REPUBLIC OF IRAQ v. BEATY 

Opinion of the Court 

Iraq’s later subjection to suit could hardly have deprived 

respondents of any expectation they held at the time of

their injury that they would be able to sue Iraq in United 

States courts. 

V 

Accordingly, the District Court lost jurisdiction over 

both suits in May 2003, when the President exercised his

authority to make §1605(a)(7) inapplicable with respect to 

Iraq. At that point, immunity kicked back in and the

cases ought to have been dismissed, “the only function 

remaining to the court [being] that of announcing the fact 

and dismissing the cause.” Ex parte McCardle, 7 Wall. 

506, 514 (1869).

In respondents’ view, that is not fatal to their claims.

They point to the eighth proviso in §1503 of the EWSAA: 

“Provided further, That the authorities contained in 

this section shall expire on September 30, 2004, or on

the date of enactment of a subsequent Act authorizing 

assistance for Iraq and that specifically amends, repeals or otherwise makes inapplicable the authorities 

of this section, whichever occurs first.” 117 Stat. 579. 

The effect of this provision, they contend, is that the

EWSAA waiver expired in 2005,3 and that when it did so 

§1605(a)(7) was revived, immunity was again stripped, 

and jurisdiction was restored. If that is true, then at the 

very least they ought to be permitted to refile their suits 

and claim equitable tolling for the period between 2005 

and the present, during which time they understandably

relied on Acree’s holding.

The premise, however, is flawed. It is true that the 

“authorities contained in” §1503 of the EWSAA expired, 

but expiration of the authorities (viz., the President’s 

—————— 

3The sunset date was extended by one year in a later bill. 108–106, 

§2204(2), 117 Stat. 1230. 
Cite as: 556 U. S. ____ (2009) 17 

Opinion of the Court 

powers to suspend and make inapplicable certain laws) is

not the same as cancellation of the effect of the President’s 

prior valid exercise of those authorities (viz., the restoration of sovereign immunity). As Iraq points out, Congress

has in other statutes provided explicitly that both the 

authorities granted and the effects of their exercise sunset 

on a particular date. E.g., 19 U. S. C. §2432(c)(3) (“A 

waiver with respect to any country shall terminate on the 

day after the waiver authority granted by this subsection

ceases to be effective with respect to such country”). The 

EWSAA contains no such language. 

We think the better reading of the eighth EWSAA proviso (the sunset clause) is that the powers granted by the

section could be exercised only for a limited time, but that

actions taken by the President pursuant to those powers

(e.g., suspension of the Iraq Sanctions Act) would not lapse 

on the sunset date. If it were otherwise, then the Iraq

Sanctions Act—which has never been repealed, and which

imposes a whole host of restrictions on relations with

Iraq—would have returned to force in September 2005.

Nobody believes that is so. 

* * * 

When the President exercised his authority to make 

inapplicable with respect to Iraq all provisions of law that 

apply to countries that have supported terrorism, the

exception to foreign sovereign immunity for state sponsors

of terrorism became inoperative as against Iraq. As a 

result, the courts below lacked jurisdiction; we therefore 

need not reach Iraq’s alternative argument that the NDAA 

subsequently stripped jurisdiction over the cases. The 

judgments of the Court of Appeals are reversed. 

It is so ordered.