John G. Roberts, Jr.: We will hear argument first this morning in Case 07-1090, Republic of Iraq v. Beaty, and the consolidated case. Mr. Franklin.
Jonathan S. Franklin: Mr. Chief Justice, and may it please the Court: Acting with express statutory authority and in furtherance of important foreign policies following the fall of the Saddam Hussein regime, the President made inapplicable with respect to Iraq all provisions of law that had applied to countries that sponsored terrorism. Under the plain language of the statute, those provisions included former section 1605(a)(7), which was a provision of law that applied only to such countries. Because section 1605(a)(7) was madel inapplicable as to Iraq effective on the President's determination, it cannot now serve as the applicable statutory basis for abrogation of Iraq's foreign sovereign immunity and therefore subject matter jurisdiction in this case.
Ruth Bader Ginsburg: Mr. Franklin, even if you are right about that, the legislation was an emergency measure with a sunset. It was revived for 1 year, but then no more. So, didn't this suspension of Iraq's lack of immunity -- didn't the immunity come back? Didn't the bar to immunity come back again once the emergency law sunsetted?
Jonathan S. Franklin: No, Your Honor. The language of the sunset provision to which you are referring states only that the authorities contained in the section would expire. That means the authorities to the President given to him to act. Congress did not say that the effect of what the President had done would be nullified once his authority to act had expired. And it's important to recognize that the President not only made inapplicable provisions of law addressed to state nations that had sponsored terrorism, but he also suspended the Iraq Sanctions Act under the same authority. The Iraq Sanctions Act has never been repealed. So, if it were correct that the -- that the -- everything that the President had done became nullified upon the expiration of his authority to act, then the Iraq Sanctions Act would not only currently be in effect today, but would have been in effect since September 30th, 2005. And if there's -- that is not what Congress intended. The Iraq Sanctions Act has a huge panoply of sanctions, both dependent on and independent of the legislative determination of Iraq as a state sponsor of terrorism. But if there's any question about this, when Congress acted again, the same Congress acted in 2003 to extend the expiration date, Congress -- the -- when that Congress acted, the legislative history said quite expressly that the extension was not necessary to extend what the President had already done, because that had already happened and that was permanent. But it was necessary according to Congress for other reasons. So both because of the plain language of the sunset provision and because of what Congress subsequently did in 2003 to extend it, as well as the interpretation of the United States on this point, the President's actions didn't sunset. It was emergency legislation to be sure, but the emergency was to give the President the authorities. We were at war at that time and our foreign policy was changing 180 degrees almost overnight away from penalizing the government of Saddam Hussein as a state sponsor of terrorism, as an outlaw regime, and immediately towards helping the people of Iraq. And Congress gave the President the broad catch-all authority to, if he deemed it appropriate, to relieve the people of Iraq from all, not just some, of the very onerous restrictions and disabilities that had applied to them as a result of the prior regime's support for terrorism. The President did this in exercise of his foreign policy judgment in order that the people of Iraq could better rebuild their country and establish a new democratic government that would in fact prove to become one of the United States' most trusted allies in a region that has not always had very many of them.
Samuel A. Alito, Jr.: Well, what do you make of the fact that in -- in 2008 Congress said that that was never its intention, it was never its intention for the President to have the authority to -- to do this?
Jonathan S. Franklin: Two things, Justice Alito: The -- the first point is that this was not the Congress that acted in 2003. This was a subsequent Congress. And that statement occurred almost 5 years after the legislation had been enacted and almost 3 years after the President's authority to act had expired. As such, that statement is nothing more than subsequent legislative history that cannot be determinative in deciding whether the President acted validly in 2003. That determination should be judged according to the statute that was in front of the President when he acted. But if there's any question at all in the Court's mind about the application of that provision, the President waived it. He waived its application as to Iraq. It is important to remember that the President would not sign the version of the NDAA that just had that provision in it. He vetoed the bill. He vetoed it only because of its effect that it might have on Iraq, and he would not sign a replacement until he was given the authority to waive any and all of the provisions of section 1083 to the extent they may affect Iraq. So if that--
Ruth Bader Ginsburg: Including -- including the provision that repealed 1605(a)(7). So that would be revived?
Jonathan S. Franklin: --Well, we don't agree with that, Your Honor, because we think that the scope of the waiver would have been to make inapplicable or to waive application of extant provisions of law to the extent they might affect Iraq. The President wasn't given the additional power to reenact statutes, to put a repealed statute back on the book. The waiver was just like the EWSAA waiver, where the President was authorized to waiver with respect to Iraq existing privileges -- existing provisions of law. But again, to the extent there is any question about that, Title 1, U.S.C. section 108 answers that conclusively. That section provides that even if Congress itself had repealed section 1083 in its entirety, that would not bring section 1605(a)(7), which had been repealed by that section. And that is the plain language of 1 U.S.C. 108. Obviously the President by exercising a blanket waiver authority can't have a better or more effective ability to bring back into existence expired statutes than Congress itself could have done.
David H. Souter: Because technically it's just suspension, it's not -- it's not reenactment. I suppose you could say a suspension is a partial revival, but the provision doesn't exactly fit, does it?
Jonathan S. Franklin: Well, we are talking here about a waiver applied to a repeal. I think the temporal point here is that the repeal happened effective upon the President's signature of the NDAA, on January 20, 2008. That was already done. The repeal happened. At that point, section 1605(a)(7) no longer existed. It was not in the U.S. Code. The President was authorized then subsequently to waive existing provisions of law. And here I think that this -- to allow the President to re-enact statutes according to a waiver authority is contrary I think to 1 U.S.C. section 108, but also common sense as well. He was -- he was allowed to--
David H. Souter: I agree.
Jonathan S. Franklin: --Okay.
Ruth Bader Ginsburg: Do we have any other instance in which a jurisdictional provision is withdrawn applicable to pending cases without Congress having mentioned the jurisdictional provision at all?
Jonathan S. Franklin: Well, I think the closest analogy that I can give you, Your Honor, is in fact the precise circumstances we have here, and that is the doctrine of foreign sovereign immunity. Prior to the Foreign Sovereign Immunities Act of 1976, determinations upon foreign sovereign immunity were made by the executive, and they had the effect, as the Court stated in the Republic of Mexico case and the Ex parte Peru, of requiring the courts to, quote, "surrender their jurisdiction", even if it had previously attached. So here we have the precise situation that had always happened. It had always been this way prior to the FSIA. The President had always been able to make determinations on foreign sovereign immunity that would have the immediate effect of divesting the courts of their ability to hear cases. Now, there were of course jurisdictional provisions at the time that conferred jurisdiction over foreign sovereigns, and the Court had no trouble -- and this was 150 years of practice, dating from Chief Justice Marshall's first recognition of sovereign immunity up until the Foreign Sovereign Immunities Act. So this is actually not any different really than what had occurred before. We have also cited numerous or several examples of jurisdictional statute that do depend on executive determination. So there's really nothing particularly unusual about that as well. I would like to turn at this point, if I might, just briefly to our alternative argument in case the Court might find it relevant. This is an alternative argument. It's not one that the Court needs to reach, but it is certainly another basis for reaching the same result in this case. And that is the simple fact in 2008 section 1605(a)(7), regardless of what the President had done previously to it, was repealed. And it was not just repealed, but it was repealed with a simultaneous bestowal of a replacement jurisdictional provision that encompassed every single pending claim that was then pending at the time. So this is the classic example of a jurisdictional repeal that applies to all cases. Congress didn't just repeal a statute, but it gave another provision that encompassed every pending claim and allowed every single pending plaintiff to be able to refile their cases. Now, to be sure, the plaintiffs against Iraq were not able to exercise their ability under the new statute -- that is 28 U.S.C. section 1605(A) -- but the only reason they were not allowed to do that was the President's waiver, and the President's waiver was expressly made applicable both to pending cases and to preexisting claims. So, for both of those reasons the alternative ground is also one that warrants reversal.
Ruth Bader Ginsburg: Were there judgments, outstanding judgments that had become final -- judgments outstanding against Iraq, that were not challenged on appeal?
Jonathan S. Franklin: There is at least two that I am aware of, two default judgments. They are cited in our brief. And the effective ability of those default judgment creditors, as it were, to execute on those judgments would depend on the application of the new statutes that Congress enacted about judgment execution. Those are not at issue in this case. But the answer to your question is yes, there were at least two judgments that I am aware of that were default judgments where Iraq had not appeared and did not contest the case.
Ruth Bader Ginsburg: And you're not claiming that those could be reopened?
Jonathan S. Franklin: We are not claiming in this -- in this proceeding they could be reopened. We're actually not claiming -- we haven't claimed in any proceeding that they can be reopened. But there is a serious question as to whether or not the plaintiffs would be able to execute in the United States on those judgments. Also, they are default judgments and so they are subject to all of the usual rules to the extent about reopening default judgments, not on the grounds of this sovereign immunity issue, but on the normal grounds of reopening of default judgments. So, to the extent there are such bases, I don't want to give up on those. But we are not -- we are not making -- this argument's immunity argument today applies to these pending cases and the ability of courts to enter judgments, not to existing default judgments, but the execution on those judgments may well be affected by the arguments we are making today. In the final analysis, I think this -- this is a case that turns ultimately on the President's exercise of his foreign affairs powers as delegated to him by Congress. The Court has traditionally given the executive a fair amount of leeway and deference in this field. In this case I think that's particularly appropriate, given that these foreign policies are among the most significant facing the United States today.
John G. Roberts, Jr.: I take it your argument would be no different if this involved some other area. It doesn't depend upon the deference under the foreign affairs--
Jonathan S. Franklin: No, it doesn't depend on it, but I do think it's important to recognize that the President was acting in that -- in that field when he made these determinations, and to also recognize that these determinations -- the foreign policy of the United States has not changed. It is still towards supporting the people of Iraq and it's supporting the ability of the people to rebuild their country and also their new democratic government, and all of those policies would be thwarted or seriously disrupted if the Court were to hold that Iraq's sovereign immunity has been abrogated in these cases.
Antonin Scalia: I also gather that the ability of the President or the United States to seek some compensation from Iraq through diplomatic channels on behalf of these plaintiffs is not affected at all by this outcome, right?
Jonathan S. Franklin: Absolutely not, Your Honor. That is the way that these kinds of claims have always been addressed in the past and these are the way that these kinds of claims, particularly between friendly allies, ought to be addressed. And I would think that in this instance the Court in its Republic of Peru case probably said it best and I'm just going to quote from the last page of our brief. The Court said: "Our national interest will be better served in such cases if the wrongs to suitors involving our relations with a friendly foreign power are righted through diplomatic negotiations rather than the compulsions of judicial proceedings. "
John G. Roberts, Jr.: --That is before the Foreign Sovereign Immunities Act, right?
Jonathan S. Franklin: That is true, but this case involve the doctrine of foreign sovereign immunity and it embodies the same concerns of reciprocity that were at issue then. If I might, I would like to reserve the remainder of my time for rebuttal.
John G. Roberts, Jr.: Thank you, counsel. Mr. Hallward-Driemeier.
Douglas Hallward-Driemeier: Mr. Chief Justice, and may it please the Court: EWSAA section 1503 authorized the President to make inapplicable with respect to Iraq any provision of law that applies to countries that have sponsored terrorism. The terrorism exception to the Foreign Sovereign Immunities Act falls squarely within the plain language of that authority. But if there were any question about that, certainly the President's exercise of his authority under that statute would be entitled to deference. Even if one were to add the atextual additional limitation that the Acree court majority tried to, that it only encompassed statutes that would stand as an obstacle to the funding of the Iraqi regime in the aftermath of removing the Hussein government, still the President's memorandum to Congress makes clear his determination that the threat of billions of dollars of judgments against Iraq and the seizure or freezing of their assets by attachment constituted an immediate threat to the foreign policy interests of the United States and our critical foreign policy goals in Iraq.
Ruth Bader Ginsburg: I thought we were just told that because there -- of the limitations on enforcement, the -- there would be no realistic threat to the Iraqi assets in the United States because the judgment creditor wouldn't have access to them.
Douglas Hallward-Driemeier: That is because of the authorities that the President exercised under the second proviso of 1503. There are exceptions to the immunity of foreign states with respect to attachment. There is one that specifically applies to countries that have been designated as having sponsored terrorism, and that exception as well was rendered inapplicable to Iraq pursuant to this same authority. And so, again, it is essential to the government's foreign policy interests in Iraq that these judgments, the ability to attach Iraqi assets -- in fact, at the time, in the summer of 2003, there were plaintiffs that were running around trying to attach the very assets, the very bundles of cash, that the United States Government was attempting to shift to Iraq in order to pay immediate needs in -- in Iraq in the immediate aftermath of having removed the Hussein regime. These critical foreign policy goals would have been frustrated had the President not been able to make our Foreign Sovereign Immunity Law conform to our foreign policy. And, of course, the Court in Altmann recognized that foreign sovereign immunity is an expression of our present foreign policy interests. That has always been the case. And although Congress can establish the general rule, and did in the FSIA, section 1503 recognizes that there had perhaps never been as dramatic a transformation in our foreign policy with respect to a country as happened in the spring of 2003, whereas there had been a whole panoply of sanctions and other provisions of law that had applied to Iraq because of the Hussein regime's sponsorship of terrorism. On a -- on a dime, our policy shifted 180 degrees, and we became intensely concerned in the success of the new Iraqi regime.
Ruth Bader Ginsburg: Is -- is all of this -- I won't say academic, but it ultimately doesn't matter if the D.C. Circuit was right in the Acree case in saying, well, 1605(a)(7) allowed suit against Iraq, but there's no cause of action.
Douglas Hallward-Driemeier: No, Your Honor. The judgment in the Acree case dismissing the claims for failure to state a claim was because counsel in that particular suit was unable to identify a source of law for their claim. The D.C. Circuit has correctly held that Federal law did not at that time provide a cause of action under 1605(a)(7), and counsel was unable when pressed at oral argument to identify the source of law. But numerous district court judgments exist where the courts have upheld the availability of transitory tort under the law of the forum State, under the law of the residence of the plaintiff, or under the law of the -- of the place where the wrong occurred to provide a cause of action. So--
Ruth Bader Ginsburg: Where the wrong occurred would have been Iraq.
Douglas Hallward-Driemeier: --That's right. And -- and, of course, the courts have to apply a choice of law analysis. As I said, a number of these judgments apply the law of the forum State where the plaintiff resided. The United States has expressed its view that there are constitutional limitations on the ability of a State to project its substantive law to a tort that occurs abroad, but -- but those issues have not yet I don't think have been resolved by the D.C. Circuit, at least. So plaintiffs have successfully obtained judgments in suits brought under 1605(a)(7). And there were billions of dollars in claims that were asserted against Iraq. And -- and, as I said, plaintiffs were actively going and trying to seek the actual money that the United States was trying to transfer over to Iraq to pay immediate costs of the reconstruction. But this does not mean -- and I think Justice Scalia's question was critical here. It does not mean that the plaintiffs are left without any remedy, rather that these plaintiffs have been put on the same footing as any other claimant against a foreign state that is not on the very small list of designated state sponsors of terrorism. Their claims are subject to state-to-state diplomatic resolution. And, in fact, there have been discussions -- there are ongoing discussions -- to establish a framework for resolving the claims against the Hussein regime.
Ruth Bader Ginsburg: Wouldn't any such settlement have to take into account that Iraqi -- the Iraqi people themselves were the most numerous and probably the worst victims of the terror?
Douglas Hallward-Driemeier: Well, Your Honor, I think that -- that that is one consideration. The United Nations has established a mechanism for funding many of the victims of the Hussein regime. And -- and -- but the United States would have the obligation to represent the interests of the United States citizens that were injured. But, as -- as Your Honor's question points out, there are a lot of considerations that go into the diplomatic or state-to-state resolution of the claim beyond those that would be available to a court to consider in just adjudicating the particular plaintiff's claims. And that is why these have historically been reserved for diplomatic resolution. So--
John G. Roberts, Jr.: Well, you don't doubt, in absence of the waiver, that this is a claim that could proceed under the Foreign Sovereign Immunity Act?
Douglas Hallward-Driemeier: --No. No, I don't. And -- and Congress has established as a means to deter further acts of terrorism by states that have been so designated--
John G. Roberts, Jr.: And that claim could--
Douglas Hallward-Driemeier: --the abrogation of immunity.
John G. Roberts, Jr.: --Putting aside the waiver, that claim could proceed despite the fact that there has been a change in the governing authority in Iraq?
Douglas Hallward-Driemeier: That's right. The -- the general rule that Congress established in 1605(a)(7) was that the jurisdiction of the courts would continue for any claim that arose from acts committed while the state was designated. But the authority that the President was given in 1503 was to render those statutes immediately inapplicable to Iraq. And, of course, it would not be inapplicable to Iraq to hold that today a court would have jurisdiction over Iraq and authority to enter a judgment against Iraq pursuant to 1605(a)(7). It would be application of that statute. So the only way that one can give full effect to the plain language of the statute, 1605(a)(7) became inapplicable, unavailable, as the basis of exercising jurisdiction over Iraq.
Ruth Bader Ginsburg: You said that there should be deference to what the executive did because of his role in foreign affairs. But in the Foreign Sovereign Immunities Act, Congress deliberately withdrew what had been the executive's traditional authority and said: President, no more; we are going to set rules of how sovereign immunity will operate.
Douglas Hallward-Driemeier: That is true. And in 1503, Congress restored to the President in a sense a very small portion of the authority he had previously exercised before the FSIA's adoption. 1605(a)(7) on its own terms turns on determinations by the executive. It's a statute that can be turned on and turned off by designating or de-designating a country. It has a particular temporal consequence, the rule that -- that the Chief Justice alluded to. In 1503, the Congress gave the President a different authority to turn that statute off, the authority to make it inapplicable only with respect to one country, Iraq, and in the context of the most dramatic transformation of foreign relations that -- that could transpire.
John G. Roberts, Jr.: Thank you, counsel. Mr. Goldstein.
Thomas C. Goldstein: Mr. Chief Justice, and may it please the Court: The Court will want to have available to it the blue brief for the Petitioners and Joint Appendix Volume 2, which together reproduce the statutes that are relevant to this case. And I do want to talk about the text of the statutes. And the point that I'm going to make from the text of the statutes is that the Solicitor General just correctly described to you what it was that Congress was trying to accomplish when he said that the structure of 1605 -- 1605(a)(7) of the Foreign Sovereign Immunities Act says if you are the victim of torture by a nation designated as a state sponsor of terror and that designation changes so that you are no longer on that list, then you still have a cause of action under the FSIA. The fact that the country changes its ways and gets de-designated doesn't change that result. Now, what the Solicitor General says is that Congress changed that rule in 1503 and that's the debate in this case: Did Congress when it said that the President may make inapplicable various statutes which they say include section 1605(a)(7), did it change the basic rule about what the effect of a designation and a rescindment of a designation was, or instead was it giving the President a special power to remove the designation? If all it was doing was giving the power to the President to immediately rescind Iraq's designation as a terrorist state, if it was a more modest power rather than effectively writing into 1605(a)(7) 1605(a)(7) that the Solicitor General just cited to you, that changing somebody's designation doesn't affect their liability, would apply here. So just put it in terms--
David H. Souter: Why would -- why would Congress have wanted to make that distinction?
Thomas C. Goldstein: --Let's -- let me take you to the reason, and that is in Joint Appendix Volume 2. Section 620A of the Foreign Sovereign Immunities Act is reproduced at 344. And this is the way that a country -- that a statute relating to torture and terrorism is made applicable and made inapplicable under ordinary processes to a nation. So to explain it to you, right now Syria, Iran, and Sudan, this statute applies to them. It is inapplicable to Libya and North Korea. And the reason is that Libya and North Korea were originally designated--
Antonin Scalia: It's a long section. Which part of the section--
Thomas C. Goldstein: --I am going to take you straight to the text. I am giving you the overview right now. So, they were de-designated. It works in two parts. A is the prohibition. This is how you get designated. Prohibition. The United States shall not--
David H. Souter: Okay. Where are you?
Thomas C. Goldstein: --Sorry. I'm at 344, and I'm in A, prohibition.
David H. Souter: Okay.
Thomas C. Goldstein: Okay, this is how you get designated: "Prohibition. " "The United States shall not provide any assistance under this Act. " --this is our principal foreign aid statute -- "the Agricultural Trade, Development, and Assistance Act of 1954, the Peace Corps Act, or the Export-Import Bank Act of 1945 to any country. " --and here's how you get designated "if the Secretary of State determines that the government of that country has repeatedly provided support for acts of international terrorism. " So we've designated Syria, Iran, Sudan. Now, that designation can be rescinded and that's usually what happens. But there are important restrictions on the rescindment that gave rise to the enactment of section 1503, and they are in C, recision. The Congress limited the President's ability to immediately rescind the designation: "A determination made by the Secretary of State under subsection A not -- may not be rescinded unless. " --and there are two rules. It can happen in one of two ways. The first is you get a new government: "A, there has been a fundamental change in the leadership and policies of the government concerned. " Or number 2, the old government changes its ways. That's 2A: "The government concerned has not provided any support for international terrorism during the preceding 6-month period. " "So here's the dilemma and, Justice Souter, this is the complete explanation for why Congress gave the President the power it did in section 1503. " "Remember when the EWSAA is enacted there is a whole discussion in the first 30 minutes about the new regime. " "There was no new regime. " "There was a discussion about how the Saddam Hussein regime had been toppled. " "No, it hadn't. " "When the EWSAA had been enacted -- was enacted, Baghdad had fallen seven days earlier. " "There was no new Iraqi government. " "We would not recognize an Iraqi government until June of 2004. "
John G. Roberts, Jr.: Well, there may have not been a new one, but there certainly was not the old one either.
Thomas C. Goldstein: Yes. But, Mr. Chief Justice, I'm making a very particular point, and that is that the President lacked the power under this statute that I have just cited to you, 620A -- and it is also the statute that is cited in 1503 -- the President lacked the power at that time because there was no new government and there wasn't a change in policy in the old government.
Anthony M. Kennedy: But there's nothing better settled -- well, perhaps that's broad. It is very well settled that the President is the one to determine who is the lawful and legitimate government that he would deal with.
Thomas C. Goldstein: That's correct.
Anthony M. Kennedy: That's all that was happening here. And it's not just a question of one against the other. It's a question of what government has survived.
Thomas C. Goldstein: Exactly right--
Anthony M. Kennedy: And that is under -- and under the law something that has always been committed to the very large discretion of the President.
Thomas C. Goldstein: --I couldn't agree with you more, Justice Kennedy. And here's the relevant point. In the spring of 2003 when Congress enacted this statute, we had not recognized a new Iraqi government. We did that in June of 2004. So my point is, and I think this is very clear from the history, Congress enacted section 1503 of the EWSAA because the President was powerless under the existing state of the law to rescind Iraq's designation as a terrorist state. That's what--
David H. Souter: But it was -- the text of it was not limited to rescinding that designation. I mean, that's the problem, it seems to me.
Thomas C. Goldstein: --Okay. Well, let's go to the text, if we could. And that is in the blue brief. It's in the appendix to the blue brief. And it's at 4A. And it's the second proviso, of course, and it appears seven lines down. "Provided further, that the President may make inapplicable. " --that's the language that we are going to focus on, Justice Souter -- "make inapplicable with respect to Iraq. " --and then it identifies the statute -- "section 620A of the Foreign Assistance Act of 1961 or any provision of law that applies to countries that have supported terrorism. " Now, we are putting aside the debate of whether section 1605(a)(7) is such a law. We are assuming it is and you say it, Justice Souter, but he is given the power to make inapplicable section 1605(a)(7). He isn't just given the power to rescind the designation. And the question just -- the term U.S. Code. We have to figure out what it means. And the way that laws that apply to countries that have supported terrorism apply or are rendered inapplicable, there is a method in the U.S. Code for how they are made applicable and inapplicable. So, to return to my examples. If you were to ask the United States or Mr. Franklin -- so this statutory scheme of laws -- sanctions that apply to nations that support terrorism applies to Syria, to Iran, it applies to Sudan. It is inapplicable to Libya, North Korea, Guinea-Bissau, Britain, France. How is it that they apply to some and not others? It's through designation. That's the process for taking something that applies and make it inapplicable. And I can give you a lot of other--
Ruth Bader Ginsburg: But this statute specifically short-circuits that process. It says the President may at once make inapplicable. The very purpose of it is that the normal process is going to take time, and therefore it's being replaced with an emergency measure that becomes effective immediately.
Thomas C. Goldstein: --Yes, the de-designation becomes effective immediately. What -- the distinction that I am drawing is that there is a strong version of the words "make inapplicable", and there is a more modest version of the words "make inapplicable". Iraq and the United States say that when he made it inapplicable he in effect essentially wrote it out of the U.S. Code or wrote in the exception that says "except for Iraq". We say that "make inapplicable" in this context is a term of art that deals with designation and rescindment. And that process is all that Congress was trying to do, was to allow the President to immediately--
David H. Souter: All right. Let's -- let's assume--
Thomas C. Goldstein: --Yes.
David H. Souter: --for the sake of argument that the reasons for -- otherwise the reasons for and against the point you've just made are evenly balanced. We are on the fence. Don't we resolve this -- shouldn't we resolve this in favor of the President's position, simply because in the absence of the statutes that we're talking about, starting with the Foreign Sovereign Immunities Act, the President would have had under the foreign policy power of Presidents the authority to stop suits like this dead in the water simply by taking the position that that should be the result? So that if in doubt, shouldn't we construe these statutes consistently with the traditional foreign policy authority of the President, in which case we get off the fence and we go in the way of the Petitioners rather than your way?
Thomas C. Goldstein: I would say, no, because that regime, as was indicated in the first 30 minutes, has been profoundly changed by the enactment of the FSIA. We adopted a different--
David H. Souter: Well, it's been profoundly changed if we accept your argument. I mean, at the moment the question is whether it has been profoundly changed or not. We've got a statutory mess. And in a case in which the statutes are seemingly subject to -- to -- to arguments either way, why don't we go with tradition?
Thomas C. Goldstein: --Okay. Well, I do want to come to whether we are in equipoise in just a second. I do think the fact that Congress changed the model so that we don't use, in effect, the Tape Memorandum model. Second, remember, Justice Souter, that this isn't a return to that model. What used to happen before the FSIA is the President would come into court and say I think that this nation has immunity and the court would decide on the basis of that case by case. But it was the President making the determination, case by case. This is something unknown. This is very different, if I could just explain how on their--
David H. Souter: Yes, but the President, quite apart from the immunity designation, the President had the authority to compromise suits.
Thomas C. Goldstein: --Well, fine, and if that is espousal power continues to exist, then the President can attempt to exercise it.
David H. Souter: I don't know whether it continues to exist or not for the sake of this argument, and I'm not -- I'm not making that point for the sake of this argument. I'm simply saying that if it is otherwise unclear, given that that power was traditionally enjoyed by the President, why do we not construe the -- or resolve the equipoise if it gets to that point, in the President's favor rather than your favor?
Thomas C. Goldstein: Okay. So the -- two reasons, the first is this is not an attempt at espousal, unlike Dames & Moore and cases like that. Remember the President hasn't set up some sort of mechanism for resolving these claims. He is simply saying that they are--
David H. Souter: Well, he hasn't set it up because he thinks he has got the authority under this statute or had the authority under this statute.
Thomas C. Goldstein: --Justice Souter, it wouldn't work like that. If the President were engaging in an act of espousal then he would have set up some mechanism for resolving the claims.
David H. Souter: Oh, I -- I quite agree with that.
Thomas C. Goldstein: So can I--
David H. Souter: --So I suppose the first step in that direction is to stop the suit that's going on now.
Thomas C. Goldstein: --Well, the President purported to do that nine -- excuse me, five or six years ago and if he were going to set up a mechanism, I think he would have. But can I just then just come to the premise of whether we are--
Ruth Bader Ginsburg: But why -- why shouldn't we treat this -- yes, the Foreign Sovereign Immunities Act said Congress is setting the rules. But why doesn't this emergency measure effectively restore to the President under these special circumstances the power that he once had? Congress ceding back to the President back to the President for the purposes of dealing with Iraq, the authority -- the control authority he once had?
Thomas C. Goldstein: --Okay. So let's -- if I could accept the premise that -- and not try to combat the premise of what we would do in the case of equipoise, let me turn to the question of what statute really means and why we shouldn't be in equipoise. The Court generally has not assumed that emergency appropriations measures issues, particular their provisos, changed the jurisdiction of the Federal courts, much less give the President the power to change the jurisdiction of the Federal courts. And it has in related context taken language like "any provision" and said well, we are looking for a clear statement of law by Congress to make sure it has confronted this situation. When it attempts to -- when the argument on the other side is that the Congress has passed a law that shifts the balance of power between Congress and the legislature and the executive in cases like Atascadero, in cases like Raygor, Will, these are all cases that had said statutes that said "any", and the Court said well, because this a -- a relatively strange thing to provide in the proviso to an appropriations measure, for example, we would ask that there be a clear statement. So that would be one reason that we are not in equipoise.
Samuel A. Alito, Jr.: But as a practical matter, isn't this closely associated with appropriations and with foreign aid? The issue is billions of dollars were going to be needed to reconstruct Iraq in -- in the wake of the war and the money could be provided directly by the United States through foreign assistance, which is part of the thrust of -- of this provision, certainly. And the argument is that this is closely related to it, because it freed up other money that would be used for reconstruction. So why is there anything odd about this being in an appropriations provision?
Thomas C. Goldstein: Because this -- well, because what Congress was doing was confronting an emergency. There is not a breath, in either the President's transmittal of the statute, the legislative history of the statute, or anything else that says that Congress was dealing with the sort of medium to long-term health of the Iraqi population or the Iraqi government or the Iraqi economy. It didn't -- one thing you would have expected if that was Congress's intent is that Congress would have dealt with Iraq's debts, Saddam Hussein's debts, and would you also suspect that this wouldn't sunset, which is the eighth proviso that hasn't been discussed never much.
Antonin Scalia: --Why -- why does it say then any other provision of law? You know, Congress could have explained its more narrow purpose in a few words.
Thomas C. Goldstein: Well--
David H. Souter: And I mean, just to add to that--
Thomas C. Goldstein: --Yes.
David H. Souter: --It said under 620A of Foreign Assistance or any other provision of law. Clearly they are going beyond, it seems to me, the -- the premise which your argument rests on, the argument that you've just made.
Thomas C. Goldstein: Oh, Justice Souter, I don't think that that -- let me, if I could take the two points in turn. In cases like Atascadero, Will, Raygor, it's the same language; it's "any". And the Court has said we require a plain statement when Congress is going to do something that would change the balance in the relationship between the branches of the government or between the Federal and State governments. And Justice Souter, we don't deny it goes beyond section 620A of the Foreign Assistance Act; it goes to other things that involve aid to the Iraqi government. What it doesn't do is reach pending--
David H. Souter: Okay. Fine. But there is no textual basis for drawing the line once you get beyond 620A at the point you want to draw it.
Thomas C. Goldstein: --I actually do disagree and believe you can logically look at the statute -- in the sense that the word "any" means "every", that is true. But if you look at what Congress was trying to accomplish, it was much more focused on questions of the immediate economic impact of the need to begin reconstruction in Iraq right away.
John Paul Stevens: Mr. Goldstein, could I ask this question? You are reading into it the exception, of the words "any other provision of law". And I can understand your argument one of two ways, and I want to be sure which. Are you saying it means any other provision of the law, except those that affect the jurisdiction of courts? Or are you saying any other provisions of law that relate to foreign assistance?
Thomas C. Goldstein: I am saying that except for those that relate to jurisdiction, because that is the kind of thing that you would expect Congress to deal with correctly. The answer to Justice Ginsburg's question in the first 30 minutes is has this Court ever confronted a statute and construed it to remove the jurisdiction of the Federal courts without expressly saying so, is no.
Stephen G. Breyer: Can you -- I would like to follow up on Justice Stevens's question. Think of three categories, A is the category which you could see that other questions of law apply to. B, is this case, and C, is the other -- other things -- other things that it might apply to, but in your opinion it would be absurd to apply them to that. All right, what's in category C?
Thomas C. Goldstein: If it's anything, it would be the export of military hardware. In the immediate wake of the fall of Baghdad, when there is no new government, right? There is no replacement regime. If you read "any" to mean literally "every" then you could ship munitions, nuclear materials and the like when there is no state there and it's silly to think that Congress intended that. Its reasons for enacting the statute had to be--
Stephen G. Breyer: Wait, wait. After Saddam Hussein falls--
Thomas C. Goldstein: --Yes.
Stephen G. Breyer: --and we have a new government--
Thomas C. Goldstein: We don't have a new government.
Antonin Scalia: Oh--
Stephen G. Breyer: --Yo mean some period of days, or something?
Antonin Scalia: --Who's paying for these shipments? I mean, is that a real problem when there is nobody over there to pay for them? You are worried about -- about armaments producers shipping -- shipping goods when there is nobody who has ordered them and is going to pay for them? I mean, that's absurd.
Thomas C. Goldstein: Well, it's not -- it's not entirely clear there is still a government in Iraq.
Stephen G. Breyer: All right, is there any one other than that?
Thomas C. Goldstein: No.
Stephen G. Breyer: No. Okay.
Thomas C. Goldstein: I think -- I think--
Stephen G. Breyer: So basically, basically your reading--
Thomas C. Goldstein: --Yes.
Stephen G. Breyer: --is the word "any other" does apply to any other.
Thomas C. Goldstein: Yes.
Stephen G. Breyer: Except your case.
Thomas C. Goldstein: Yes.
Stephen G. Breyer: And possibly this thing for a couple of days.
Thomas C. Goldstein: Yes.
Stephen G. Breyer: Well, that isn't exactly an absurd result then, to say "any other" really means any other including this case.
Thomas C. Goldstein: Well, Justice Breyer, in -- the same point was made in cases like Atascadero and Raygor. "Any" means "every" except for the States. In that example. But can I just make quite clear, we have two lines of argument. And I think it's important to recognize that. We have the debate over what any other means and does that include section 1605(a)(7). That's what we have been discussing here, and the idea that any means every, and Congress spoke broadly and so that's what we have. But we have the other incredibly important arguments of what it means to make a sanction inapplicable. Which is separate and independent of that point, and the question of whether the statutes sunset as the Acree court did. And I want to return First to those point of what it is to make inapplicable a statute that applies to nations that have supported terrorism. And I want to return to the statutory text and explain why our more modest reading of "make inapplicable" is the right one. So the statutory text again is at 4a. Here are, I think, the strong statutory indications that we are right, that what Congress was trying to do was to allow the President to immediately de-designate Iraq as a terrorist state. First, there is a direct parallel between the language "a statute that applies to countries that have supported terrorism. " and the directive that the President can make it inapplicable. That tells you, look at how it is that these statutes apply in the first place, and the linguistic term of art is to do the reverse. Take something that applies and make it inapplicable. And something that applies to an -- statutes apply to countries that have supported terrorism under American law only in one way, through designation. And what happens is that the President was allowed to rescind it. The second textual reason for our more modest reading of make inapplicable is reference to section 620A of the Foreign Assistance Act. So we know one thing: even if we debate and disagree, Justice Breyer, about what any means in this context, we know the Congress told the President he could immediately make inapplicable section 620A.
David H. Souter: Why did -- why did he need the statute to do that? In other words if the President had the power to designate in the first place, normally that assumes the power to -- to rescind the designation.
Thomas C. Goldstein: That's exactly right, but that's the point. When I took you to the text of 620A, which was at 344 of the joint appendix volume 2, Justice Souter, he didn't have the power to do it right away. Remember, Baghdad falls; there is no new government; and the old government hasn't changed its ways. So he lacks the power to remove the designation. And I can prove that to you. It wasn't until there was a new government that the President actually did formally rescind the designation pursuant to the Foreign Assistance Act. It wasn't until 2004. After--
John G. Roberts, Jr.: But that's -- that's just a belt-and-suspenders act. I mean, he -- he has the authority here, and he -- although it may look difficult, he has to envision there may be people who challenge that -- his interpretation of the law. So there's the other provision that will make it inapplicable under that as well.
Thomas C. Goldstein: --I -- I disagree, but we will accept that. Mr. Chief Justice, my point isn't, hey, look, he himself acknowledged that he needed to exercise his de-designation power. My point is different, and that is the fact that he didn't do this under the Foreign Assistance Act until 2004 is a strong indication that he couldn't do it before. If he could have done it before, he would have.
David H. Souter: And it may also be an indication that he thought he had effectively accomplished what he wanted by -- by acting under this statute, and therefore he had other fish to fry.
Thomas C. Goldstein: I -- I don't understand, Justice Souter, why he would in 2004, after a new government is recognized, suddenly decide to de-designate Iraq. There wasn't any -- the only--
David H. Souter: I -- I don't know, either. I mean, I can't -- I can't read minds, but there is an interpretation that is quite possible consistent with the text of this statute, that he thought that by acting under 1503, he had done everything that he needed to do. Why he had at some subsequent time said, well, you know, I'll -- I'll use belt as well as suspenders, I don't know. But it would be consistent with the assumption that he had the authority here.
Thomas C. Goldstein: --Well, it -- I agree it would be consistent with the assumption that he had the authority here. That's -- I'm not trying to negative that. What I'm trying to say is that the authority under 620A -- the fact that he exercised it in 2004 is a strong indication that that's -- it's not the only possible reading, but it's a strong indication that that's when he thought he got the power. The--
Ruth Bader Ginsburg: But, Mr. Goldstein, before you finish your argument, I'd like to know what you think about the claim for relief. The D.C. Circuit said this is a mere jurisdictional provision, and it doesn't provide a private right of action; the new statute does, but that doesn't apply to Iraq. So, what was the source of the claim -- what is the source of these plaintiffs' claim for relief?
Thomas C. Goldstein: --The Solicitor General has it right. Post-Acree, these claims -- these types of claims were pleaded principally as State-law claims, and that has been recognized as providing a substantive cause of action.
Ruth Bader Ginsburg: Which -- which State law?
Thomas C. Goldstein: The State law generally of the home State of the plaintiffs.
Ruth Bader Ginsburg: So that -- by that reasoning, people all over the world could sue the United States in their courts alleging that the United States has engaged in cruel and inhuman treatment with respect to their nationals. The same theory would apply -- use the law of the state where the national comes from. So, it could be Iraq, could be Belgium, could be Yemen -- any place. So -- but the claim you are saying exists would be a kind of universal one, if it's -- the United States could use it, any other place in the world could, too.
Thomas C. Goldstein: Well, that is clear -- well, in -- in terms of whether or not a foreign country would look to our law and say, well, we're just doing the same thing as you do, that would arise from -- also from new section 1605A.
Ruth Bader Ginsburg: No. Looking to their own law.
Thomas C. Goldstein: Yes, I understand, Justice Ginsburg. Section -- for example, section 1605A, the statute that's created by the 2008 NDAA, creates an affirmative U.S. cause of action. There is always going to be an underlying domestic cause of action that underlies the FSIA, whether it's State law or instead it's Federal law. That is a -- a debate about whether the FSIA is a good statute or not, but it's one that Congress has resolved--
Antonin Scalia: Well, no. I mean, it's also a debate as to whether the call on that question should be a Federal one or a State one, whether -- there are all sorts of conditions attached to the -- the suits that are allowed under 620A. And you are saying that, even without those conditions, any State -- Oklahoma -- can decide Americans can -- can sue foreign countries.
Thomas C. Goldstein: --Well, Justice Scalia, the -- the source of the underlying cause of action is not presented by this case. The D.C. Circuit has resolved that question in our favor.
Antonin Scalia: I know, but we have been talking about it--
Thomas C. Goldstein: Sure--
Antonin Scalia: --for a couple of minutes, so we--
Thomas C. Goldstein: --Okay. I'm here to talk about what you want to talk about, and all I'm--
Antonin Scalia: --I didn't start this. [Laughter]
Ruth Bader Ginsburg: I did, and you can--
Thomas C. Goldstein: --All right.
Ruth Bader Ginsburg: --You can go back to your jurisdiction argument.
Thomas C. Goldstein: Okay. Maybe I can finish it. The -- the -- I had said that I also wanted to continue with the text, on the question of what it is to "make inapplicable". I pointed out how it is that all of these statutes are applied and made inapplicable. I also want to draw the contrast between the two operative powers that are given to the President. At the beginning, the statute says the President may suspend the application of any provision of the Iraq Sanctions Act, which is the kind of power that they are talking about, essentially to lift the statute; whereas, the term of art, we think, "make inapplicable" in the context of these statutes is the narrow power to de-designate the state as a state sponsor of terror. But let me just return, if I can--
John G. Roberts, Jr.: If I could just pause--
Thomas C. Goldstein: --Yes.
John G. Roberts, Jr.: --for a moment. The -- the President in exercising this waiver purported to act not only under the statute but under the Constitution as well. So if we were to accept your argument, we would have to decide whether or not he had the power under the Constitution.
Thomas C. Goldstein: I don't think the question is presented here. It could have been an argument that was made, but I don't believe it's presented by this case.
John G. Roberts, Jr.: Well, it's not presented because your friends on the other side think the -- on a narrower ground, that the statute applies. But if we agree with you and disagree with that, it seems to me that he has an argument -- the President has the argument that he has this authority under the Constitution.
Thomas C. Goldstein: I agree he has that argument; he just hasn't made it in -- in this case -- in his -- in the Iraq's -- Iraq hasn't made it in the cert petition, I should say, in the question on this Court -- on which this Court granted certiorari. I think to decide the debate, Justice Souter, of whether we're in equipoise here and the debate about whether or not the power was grand or instead more modest, we have to resolve the -- the question of what it is that Congress intended to do in this proviso to this emergency appropriations measure. Was it confronting a very specific moment in time at which Baghdad had just fallen and we needed to get emergency -- emergency aid to Iraq? Or was it, instead, fundamentally changing our policy, making Iraq an ally despite the fact that there wasn't even an Iraqi government there? Was he given -- was Congress giving the power to the President to immunize Iraq permanently from liability under the FSIA, which doesn't even exist with respect to our closest allies, Britain and France? That is a significant over-reading of what--
David H. Souter: Why -- why do you say "permanently"?
Thomas C. Goldstein: --Because--
David H. Souter: Just under -- just under this statute, if he makes inapplicable, he can rescind the action that made it inapplicable.
Thomas C. Goldstein: --I don't understand how, Justice Souter. The -- the powers of the President expired. This statute sunset. Their whole point is--
David H. Souter: Well -- no, but during the period in which the statute is applicable, I don't know of any reason why he cannot change his designation of inapplicability. So that the argument of a permanent change in the foreign policy of the United States or the -- or the powers relating to the foreign policy of the United States doesn't seem to me a legitimate argument.
Thomas C. Goldstein: --That's fine while it was in effect, but it's not anymore. Their point is that they permanently made the FSIA -- the -- section 620A of the Foreign Assistance Act in 2008 and 2009 inapplicable, and that would be incredibly unusual. Why would we give that power with respect to Iraq when we don't to our very closest allies? Remember the statute expired, and they say it's still in effect. That's their answer to the sunset. It makes no sense at all. The only thing that makes sense is to read it in its context of being a modest attempt to deal with an immediate problem. And section 1605(a)(7) says what happens when you deal with that immediate problem. If you change the designation of a state -- if they become an ally, if they change their ways -- they are still liable for the acts of torture they committed while they were designated.
Antonin Scalia: I think -- I think what they say is that the designation remains in effect. I don't think they say that the power to undesignate disappears.
Thomas C. Goldstein: I don't understand--
Antonin Scalia: I'd be -- well, I'll ask them, but I'd be surprised if it's--
David H. Souter: Let me -- let me ask the same question with respect to the new statute, the "capital A" statute.
Thomas C. Goldstein: --Yes.
David H. Souter: Would there be -- and I just -- I don't know the answer to this. Would there be authority under the "capital A" statute to undo the designation?
Thomas C. Goldstein: No. That -- that entire provision was waived with respect to Iraq. And we're -- take section 620A--
David H. Souter: Okay. He waived it, but the question is whether he would have had the authority to undesignate or -- or to rescind the designation of inapplicability if he had wished to exercise the authority under the "capital A" statute.
Thomas C. Goldstein: --I have no -- I'm not aware of any provision of the 2008 NDAA that would have given the President any such power. They say that on the day the President exercised his -- his powers that the Foreign Assistance Act, section 620A, became inapplicable to Iraq, that sanction, and that that inapplicability survived the sunset of the statute in 2005. How it would come back -- how it would come back and continue to apply in Iraq in the case of a regime change in Iraq, I have no idea at all.
Ruth Bader Ginsburg: Congress could pass a law. [Laughter]
John G. Roberts, Jr.: Thank you, counsel. Mr. Franklin, you have 5 minutes remaining.
Jonathan S. Franklin: Thank you, Your Honor--
Antonin Scalia: You want to clarify this last part--
Jonathan S. Franklin: --Yes.
Antonin Scalia: --we have just been discussing?
Jonathan S. Franklin: It is not the position of the Government of Iraq that in the very hypothetical instance in which something would change that they could not be redesignated. We believe they could be redesignated. We believe that is also the position of the United States. When we say "permanent", we mean as opposed to just temporary. And I might add it is our position that--
Antonin Scalia: I thought you'd say that.
Jonathan S. Franklin: --It is our position that it will be permanent because the Government of Iraq is now a very strong ally of the United States in the fight against terrorism, not a sponsor of it. Just a few other points based on the argument that just occurred. They are interpreting the statute apparently now to say that the President only had the power to rescind the -- the previous designations, but that's not what the statute says. If that's what Congress had meant, they would have done that. They said "make inapplicable". And their entire case depends on that statute being applicable today because it serves as the abrogation of Iraq's sovereign immunity, and it serves as the predicate for subject matter jurisdiction. It cannot be both applicable and having been made inapplicable. The other point that was mentioned -- and also I would also say in this regard that our foreign policy towards Iraq is different than our foreign policy towards other former state-sponsored terrorism. Libya, for example, was taken off the list, but there was an express requirement that Libya answer to the claims that were before it. And, of course, that was because the -- the government that sponsored that terrorism, the -- the Khadafi Government, was still in power. Here we had gone into the country with U.S. military force aided by our allies, and we have ousted the regime, and we were seeking to support Iraq in its efforts to rebuild. There was a point about the de-designation that was done in 2004. The Secretary of State -- and it is cited on page 25 in the blue brief. The Secretary of State said in the de-designation that it was largely symbolic or perhaps a belt and suspenders, but he said it was largely symbolic in light of the prior EWSAA determination. However -- and this is relevant to something else that occurred. The de-designation was also necessary to allow military exports to Iraq because under the proviso 3 of the EWSAA, military exports were specifically exempted from the President's authority. That also shows that Congress knew how to make exceptions to the President's power when it wanted to. And, finally, I would say that we do agree with the analysis that Justice Souter has -- has posited, and that is that this involves a lesser power than the President could have exercised on his own authority to -- to completely espouse the claims. It, therefore, fits entirely within what is normally done in these kinds of cases. And, Justice Ginsburg, it is also the position of the Government of Iraq that Iraqi victims ought to be included in any state-to-state diplomatic negotiations. But that is a matter for the two governments to resolve between themselves, and that is one of the reasons why these kinds of claims have always been resolved in that manner in the past. They are reciprocal, bilateral concerns that affect two very close allies. Those governments ought to be negotiating and resolving those claims, whatever claims there are on both sides, between the two of them. If there are no further questions, thank you, Your Honor.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.