An appeals court panel threw out a $959 million judgment Friday for U.S. prisoners of war who say they were tortured by the Iraqi military during the 1991 Gulf War, ruling Congress never authorized such lawsuits against foreign governments.
The U.S. Court of Appeals for the D.C. Circuit overturned a lower court ruling that said 17 former POWs and 37 family members were entitled to the damages under a federal statute allowing suits involving countries which financed or aided terrorists.
The three-judge panel said the statute only allows lawsuits for pain and suffering if they are filed against agents and officers of those foreign states responsible for the torture who are not acting on behalf of their government.
Thus, even though the lawsuit also names Saddam Hussein, he is immune because the POWs sued him for his alleged activities as Iraq’s president, the panel said.
“We are mindful of the gravity of (the POWs’) allegations in this case. That appellees endured this suffering while acting in service to their country is all the more sobering,” Judge Harry Edwards stated in the opinion.
“Nevertheless, we cannot ignore ... its impact on the United States’ conduct of foreign policy where the law is indisputably clear that appellees were not legally entitled.”
Judge John Roberts filed a separate concurring opinion.
The POWs in the lawsuit, which also named the Iraqi Intelligence Service, say they endured severe beatings, starvation, electric shock, threats of amputation and dismemberment and continual death threats.
Nearly 125 pages of the complaint detail the servicemen’s stories, including those of Marine Maj. Michael Craig Berryman, who said his legs were beaten with a metal pipe and a wooden ax handle; Marine Col. Clifford Acree, who said he was so near starvation he could “feel his body consuming itself;” and Navy Cmdr. Lawrence Slade, whose body was described as so blue from bruises that it was “as if he had been dipped in indigo dye.”
The Iraqi government never appeared in U.S. court to argue its case, leading to the default judgment last July. But the Justice Department intervened after the POWs sought to be paid from frozen Iraqi assets in the United States, saying the money was needed to rebuild Iraq.
Government lawyers had argued that huge legal judgments against foreign governments would hamper diplomacy efforts as the United States wages its war on terror.
They also argued that the POWs weren’t entitled to the money because President Bush made an official determination in May 2003 that a statute allowing payment from frozen assets wasn’t applicable to Iraq because it no longer supported terrorism after Saddam was overthrown.
In his concurring opinion, Roberts agreed. Denying Bush’s authority to make these determinations and having them apply retroactively could unfairly force new regimes like those in Iraq to pay for the wrongs of the previous ones, he said.
‘Difficult to take’
One of the POWs in the suit, retired Air Force Col. David Eberly, said he and the other plaintiffs have not decided on their next step, which could include appealing to the full court or asking Congress and President Bush to change the statute or issue an executive order.
“This is difficult to take,” Eberly said. “We served without question and withstood the worst the Iraqi torturers handed out. ... I am also concerned for those who serve our country in the future, as future torturers may now believe that the United States will not stand behind its servicemen and women.”
An attorney representing the plaintiffs, Tony Onorato, noted 13 of the 17 POWs in the case were held in 1991 at the Abu Ghraib prison, the site of recent apparent abuse of Iraqi prisoners by their U.S. military guards. Bush has said the prison will be destroyed “as a fitting symbol of Iraq’s new beginning.”
“It adds to the parallels,” Onorato said. “Our very guys who were tortured in that very prison are being told to get out of the way.”