The opinion of the court was delivered by: John D. Bates United States District Judge
United States citizens Kevin Beaty and William Barloon were detained and allegedly held as hostages by the former Iraqi regime in the 1990s. Along with other former detainees and their spouses, Beaty and Barloon filed suit against Iraq in 1996, eventually obtaining a default judgment against it. See Daliberti v. Republic of Iraq, 146 F. Supp. 2d 19 (D.D.C. 2001) ("Daliberti II"); Daliberti v. Republic of Iraq, 97 F. Supp. 2d 38 (D.D.C. 2000) ("Daliberti I"). The plaintiffs in this case - - Jordan Beaty, Austin Makenzie Beaty, William R. Barloon, Bryan C. Barloon, and Rebecca L. Barloon - - are the children of Kevin Beaty and William Barloon. Invoking the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(7), plaintiffs seek damages against Iraq for the emotional distress that they allegedly suffered during their fathers' captivity.
Iraq has filed a motion to dismiss in which it asserts that plaintiffs have failed to state a claim upon which relief can be granted, that this Court lacks subject-matter jurisdiction, and that plaintiffs' claims are either non-justiciable or preempted because of their potential to undermine United States foreign policy. The United States has submitted a statement of interest reaffirming its position that actions taken by the political branches after the filing of the original complaint divest this Court of jurisdiction. For their part, plaintiffs maintain that recent decisions of the D.C. Circuit and this Court establish that there is a jurisdictional basis for their suit, that their claims are justiciable, and that they are entitled to partial summary judgment based on the facts established in the Daliberti case. Pending before the Court are defendant's motion to dismiss and plaintiffs' motion for partial summary judgment. For the reasons set forth below, the Court will grant in part and deny in part both motions.
The facts underlying the detention and captivity of Beaty and Barloon are recounted at length in the two reported decisions in the Daliberti litigation, see 146 F. Supp. 2d at 21-23; 97 F. Supp. 2d at 41-42, and have not been disputed here. (These facts are drawn from plaintiffs' Third Amended Complaint, as well as the Daliberti opinions, of which this Court may take judicial notice. See Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229, 263 (D.D.C. 2006); Salazar v. Islamic Republic of Iran, 370 F. Supp. 2d 105, 109 n.6 (D.D.C. 2005).) Beaty and Barloon resided in Kuwait and worked in civilian capacities following the conclusion of the Persian Gulf War in 1991. Beaty worked as a drilling supervisor on an oil rig, and Barloon supervised aircraft maintenance and overhaul. Third Am. Compl. ¶ 7. In April of 1993, Beaty was detained by Iraqi border guards and taken at gunpoint first to Basra and later to Baghdad. Id. at ¶¶ 9-11. For a period of 205 days, Beaty lived in squalid conditions in two Iraqi prisons, where he was deprived of food and water, as well as medication for his heart condition. Id. at ¶¶ 10-11. Iraq conditioned Beaty's release on either the lifting of the economic sanctions that had been imposed upon it or a significant monetary ransom. Id. at ¶ 12. Only after efforts by Beaty's wife Robin and prominent political figures, including former President Jimmy Carter and then-Oklahoma Senator David Boren, did Iraq release Beaty. Id. at ¶¶ 12-13.
Barloon was detained by an Iraqi border guard in March of 1995. Id. at ¶ 14. Like Beaty, he was transported first to Basra and then to Baghdad, where, again like Beaty, he was eventually held at the now infamous Abu Ghraib prison. Id. at ¶ 16. During his 126 days of detention, Barloon was deprived of food, water, and other necessities. Id. at ¶ 17. His captors beat him and, on one occasion, subjected him to a mock execution. Id.; see Daliberti II, 146 F. Supp. 2d at 23. Diplomatic efforts by the Clinton Administration, and in particular the intervention of then-Congressman Bill Richardson, led to Barloon's release in late 1995. Third Am. Compl. ¶¶ 18-20.
Beaty and Barloon, joined by their wives, two other detainees, and those detainees' spouses, filed suit against Iraq in May of 1996. The four men sought damages for kidnapping, false imprisonment, and torture; their wives sought recovery for intentional infliction of emotional distress and loss of consortium. See Daliberti I, 97 F. Supp. 2d at 41-42. The jurisdictional basis for the suit was provided by legislation that Congress had enacted just weeks earlier: section 221(a) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Pub. L. 104-132, § 221(a), 110 Stat. 1214, 1242-43 (April 24, 1996). A key provision in that legislation deprived countries designated as state sponsors of terrorism of sovereign immunity from suits seeking money damages "for personal injury or death that was caused by an act of torture, extra-judicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources . . . for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency." Id. (codified at 28 U.S.C. § 1605(a)(7)).
After the Clerk of the Court entered default against it, Iraq appeared by counsel and filed a motion to dismiss the civil suit. Daliberti I, 97 F. Supp. 2d at 42. Judge Friedman concluded that the plaintiffs had "met their burden of showing that the actions they complain of fall under the state sponsored terrorism exception to foreign sovereign immunity in 28 U.S.C. 1607(a)(7)," specifically by demonstrating that they had been the victims of "torture" and "hostage taking" - two of the acts enumerated in the statute. Id. at 45-46. He also rejected Iraq's contentions that the state-sponsored terrorism exception is unconstitutional and that adjudication of the suit was barred by the act-of-state doctrine. Id. at 48-55. Accordingly, he denied Iraq's motion to dismiss. After its motion was denied, Iraq's counsel withdrew from the case, and the Clerk of the Court once again entered default against Iraq. The case was then transferred to Judge Oberdorfer, who conducted a four-day bench trial, issued findings of fact, and entered final judgment in favor of the plaintiffs. Daliberti II, 146 F. Supp. 2d at 21. That judgment awarded millions of dollars in damages to the male plaintiffs for the physical hardships suffered during their captivity and their psychological problems since release, as well as millions of dollars to the men's wives for "loss of the society and companionship of their husbands." Id. at 24, 26-27.
Not covered by the Daliberti judgment, however, were the Beaty and Barloon children. Those five children, plaintiffs here, filed a complaint in February of 2003 seeking monetary damages for the "mental anguish, pain and suffering during the period of their fathers' incarceration." Compl. ¶ 10. (The filing of their complaint almost two years after the Daliberti judgment was not just happenstance: a ten-year statute of limitations governs cases brought under § 1605(a)(7), see 28 U.S.C. § 1605(f), and Beaty's detention and captivity began and ended in 1993.) But shortly after plaintiffs filed their complaint, events outside and inside the courthouse dramatically altered the existing legal and political landscape. A United States-led coalition commenced a military invasion of Iraq on March 20, 2003, eventually toppling the regime headed by Saddam Hussein. In support of the war effort, Congress passed the Emergency Wartime Supplemental Appropriations Act ("EWSAA"), Pub. L. No. 108-11, 117 Stat. 559 (2003). The EWSAA provided funding for military operations in Iraq and homeland security measures in the United States. It also gave the President the authority to suspend certain laws that had barred aid to Iraq and to "make inapplicable with respect to Iraq . . . any other provision of law that applies to countries that have supported terrorism." Pub. L. No. 108-11, § 1503, 117 Stat. at 579. President George W. Bush exercised the authority granted by Congress when he issued Presidential Determination 2003-23 on May 7, 2003. Echoing the language of the EWSAA, the Presidential Determination purported to "make 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. 26,459 (May 7, 003). The President explained in a message to Congress the following week his understanding that the laws made "inapplicable" to Iraq in Presidential Determination 2003-23 included 28 U.S.C. § 1605(a)(7), the state-sponsored terrorism exception to the FSIA. See 39 Weekly Comp. Pres. Doc. 647, 647-48 (May 22, 2003).
At virtually the same time that the political branches worked to adapt the laws to a changing political and military situation, the U.S. Court of Appeals for the D.C. Circuit was issuing a series of important rulings addressing unanswered questions as to the contours of 28 U.S.C. § 1605(a)(7). One of those decisions, Ciccipio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004), was issued shortly after the first status conference in this case. The court of appeals in Ciccipio resolved two questions of far-reaching significance in the FSIA context. It first held that § 1605(a)(7) confers subject-matter jurisdiction but "does not create a private right of action." Id. at 1034. A second key question related to the so-called Flatow Amendment, 28 U.S.C. § 1605 note, a provision passed in 1996 that allowed U.S. nationals injured or killed by acts of terrorism to seek money damages - - including punitive damages - - from officials or agents of foreign states designated as sponsors of terrorism. That provision, the court of appeals held, "creates a private right of action against officials, employees, and agents of foreign states," but this "cause of action is limited to claims against those officials in their individual, as opposed to their official, capacities." Id. In other words, the Flatow Amendment does not provide a cause of action against the foreign state itself. Because the plaintiffs in Ciccipio may have labored under the misconception that the Flatow Amendment provided just such a cause of action, the court of appeals remanded the case to give them "an opportunity to amend their complaint to state a cause of action under some other source of law, including state law." Id. at 1036.
In light of Presidential Determination No. 2003-23 and the D.C. Circuit's decision in Ciccipio-Puleo, this Court invited the United States to file a statement of interest expressing the government's position on subject-matter jurisdiction. Dkt. #4 (Order of 1/29/2004). The United States accepted the Court's invitation and submitted a brief in which it argued that the Presidential Determination, made pursuant to authority granted by Congress in the EWSAA, had restored Iraq's sovereign immunity effective immediately and that this Determination did not contain an exception (express or implied) for terrorism-related suits that had been filed prior to the passage of the EWSAA. See First Statement of Interest of the United States at 8, 12. To the extent that the Presidential Determination did not divest the Court of subject-matter jurisdiction, the United States maintained that plaintiffs' complaint suffered from the same defect as that of the plaintiffs in Ciccipio-Puleo and thus failed to state a claim, "at least as currently pled." Id. at 28.
Before this Court had the chance to evaluate the United States' main argument, the D.C. Circuit did so in Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), cert. denied, 544 U.S. 1010 (2005). The principal question in Acree was whether the language in § 1503 of the EWSAA authorized the President to make the state-sponsored terrorism exception to the FSIA inapplicable to Iraq. Answering that "exceedingly close question" in the negative, the Acree majority concluded that the phrase "any other provision of law that applies to countries that have supported terrorism," when read in context, "authorizes the President to make inapplicable to Iraq those provisions of law that impose economic sanctions on Iraq or that present legal obstacles to the provision of assistance to the Iraqi Government," but was "not intended to alter the jurisdiction of the federal courts under the FSIA". Id. at 51, 55. Section 1605(a)(7) of the FSIA, the court held, was not a provision included within the Congressional grant of authority, and the President's exercise of power beyond that grant was thus without effect. Id. at 57. The court went on to conclude that the plaintiffs had nevertheless failed to state a claim upon which relief could be granted because, as in Ciccipio-Puleo, they had not "identif[ied] a particular cause of action arising out of a specific source of law." Id. at 59-60. Although agreeing with the majority that the plaintiffs' suit must be dismissed and that the statutory-construction issue presented a close question, then-Circuit Judge (now Chief Justice) Roberts would have accepted the United States' argument that § 1503 of the EWSAA granted the President authority to make 28 U.S.C. § 1605(a)(7) inapplicable to Iraq and that Presidential Determination 2003-23 "ousted the federal courts of jurisdiction in cases that relied on that exception to Iraq's sovereign immunity." Id. at 60, 62 (Roberts, J., concurring in part and concurring in the judgment). The United States, having secured on behalf of Iraq (which did not appear) dismissal of the plaintiffs' suit, did not seek further review of the statutory-interpretation issue before either the en banc D.C. Circuit or the U.S. Supreme Court.
Acree, along with the earlier decision in Ciccipio-Puleo, forced the parties to the present litigation to reassess their positions. Iraq entered an appearance through counsel. The United States submitted a second and, upon the Court's invitation, a third Statement of Interest. Plaintiffs filed a series of amended complaints designed to comply with Ciccipio-Puleo, culminating in a Third Amended Complaint. In the three-count complaint, plaintiffs allege that they were aware of their fathers' captivity in Iraq, that they were able to see through media sources where their fathers were being held, and that they learned that their fathers were suffering mentally and emotionally. See Third Am. Comp. ¶ 22. Plaintiffs claim to have "endured severe mental anguish, depression, humiliation, anxiety, and pain and suffering as a direct result of their fathers' captivity." Id. at ¶ 21. They ground their prayer for money damages in three causes of action: intentional infliction of emotional distress under state common law (Count I), violations of customary international law incorporated into federal common law (Count II), and loss of solatium under federal common law (Count III). Plaintiffs contend that there are no disputed facts and that they are entitled to partial summary judgment. Iraq, backed in part by the United States, argues that plaintiffs' suit should be dismissed on jurisdictional and prudential grounds, or alternatively because plaintiffs have failed to state a valid claim. The parties ably advocated their positions at a motions hearing held on March 2, 2007, and their respective motions are now ripe for resolution.
Iraq seeks dismissal of plaintiffs' complaint on the grounds that it fails to state a claim upon which relief can be granted, that it presents a non-justiciable political question, and that this Court lacks jurisdiction. The first of these three grounds constitutes a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, whereas the latter two challenge subject-matter jurisdiction and must be evaluated under Rule 12(b)(1). See, e.g., Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1262 (D.C. Cir. 2006) (political-question doctrine goes to subject-matter jurisdiction). "[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations must be presumed true, and plaintiffs must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). At the same time, courts need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Under Rule 12(b)(1), those seeking to invoke the jurisdiction of a federal court - -plaintiffs here - - bear the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"). "'[F]actual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). A court may consider material other than the allegations of the complaint in determining whether it has jurisdiction, so long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharmaceuticals, Inc. v. Food and Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). Additionally, "[w]here the motion to dismiss is based on a claim of foreign sovereign immunity, which provides protection from suit and not merely a defense to liability . . . the court must engage in sufficient pretrial factual and legal determinations to satisfy itself of its authority to hear the case before trial." Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027-28 (D.C. Cir. 1997) (citation and quotation marks omitted).
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure will not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987). All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley, 355 U.S. at 47). "Given the Federal Rules' simplified standard for pleading, '[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
Also pending is plaintiffs' motion for partial summary judgment. Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed. R. Civ. P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, a court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
In moving to dismiss plaintiffs' complaint, Iraq has a number of arrows in its quiver. It first argues, largely with reference to legal and political developments since the United States-led invasion in 2003, that adjudication of plaintiffs' claims "would compromise critical U.S. foreign policy objectives," and that the case must therefore be dismissed. See Def.'s Opp'n and Reply at 5. Should the Court decline to dismiss the case on jurisdictional or related prudential grounds, Iraq maintains that plaintiffs' suit should be dismissed on the alternative and independent basis that they have failed to state a claim under the state and federal causes of action invoked in their complaint. See Def.'s Memorandum in Support of Motion to Dismiss ("Def.'s Mem.") at 14-19; Def.'s Opp'n and Reply at 24-29. Emphasizing that none of Iraq's arguments turns on factual disputes, plaintiffs maintain that they are entitled to partial summary judgment under applicable precedents that establish (1) that this Court has jurisdiction over their claims, and (2) that they have stated valid claims under state and federal common law.
A. Jurisdictional and Prudential Grounds for Dismissal
The FSIA provides the exclusive basis for obtaining jurisdiction over foreign countries in United States courts. See Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). Foreign states are "presumptively immune from the jurisdiction of United States courts," which can assert jurisdiction only if one of the "specified exception[s]" to foreign sovereign immunity applies. Id. Plaintiffs in this case argue that jurisdiction lies under the statutory exception for state sponsors of terrorism. That exception divests foreign states of immunity from suits seeking money damages "for personal injury or death that was caused by an act of torture, extra-judicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources . . . for such an act" where the perpetrator was "an official, employee, or agent of [the] foreign state [who was] acting within the scope of his or her office, employment or agency." 28 U.S.C. § 1605(a)(7). "In enacting this provision," the D.C. Circuit has explained, "Congress sought to create a judicial forum for compensating the victims of terrorism, and in so doing to punish foreign states who have committed or sponsored such acts and deter them from doing so in the future." Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 88-89 (D.C. Cir. 2002).
Section 1605(a)(7) and its neighboring provisions specify which foreign states may be sued and under what circumstances. For one thing, jurisdiction under this section is available only for suits that seek money damages for injuries caused by certain enumerated types of conduct. The statute likewise instructs courts to locate the definitions for the types of qualifying conduct in specific sources. The phrase "hostage taking" at issue here, for example, is to be given the definition found in Article 1 of the International Convention Against the Taking of Hostages, see 28 U.S.C. § 1605(e)(2), which applies the term to "[a]ny person who seizes or detains and threatens to kill, injure or continue to detain another person . . . in order to compel a third party . . . to do or abstain from doing any act as an explicit or implicit condition for release of the hostage." International Convention Against the Taking of Hostages, Dec. 17, 1979, art. 1, T.I.A.S. No. 11,081. Three additional conditions must be met before a party can obtain jurisdiction over a foreign state under the state-sponsored terrorism exception: (1) the foreign state must be one that was designated "as a state sponsor of terrorism . . . at the time the act occurred," (2) the foreign state must be afforded an opportunity to arbitrate claims based on acts that occurred in that state, and (3) the party or the victim must be a United States national. See 28 U.S.C. § 1605(a)(7)(A), (B); see also Price, 294 F.3d at 89; Daliberti I, 97 F. Supp. 2d at 44.
There is no dispute here that plaintiffs have satisfied these threshold conditions. (Indeed, Judge Friedman has already so ruled with respect to their parents. See Daliberti I, 97 F. Supp. 2d at 44-46.) Plaintiffs seek money damages arising from their fathers' detention and imprisonment at the hands of Iraqi officials. Such detention and imprisonment qualifies as "hostage taking" under these circumstances because Iraq used Beaty and Barloon as bargaining chips to extract concessions from the United States government. See id. at 46. At the time Iraq detained and held the men, it was designated as a state sponsor of terrorism. 55 Fed. Reg. 37,793 (Sept. 13, 1990); 31 C.F.R. § 596.201. Beaty and Barloon are United States nationals, as are their children, who attached an offer to arbitrate to their initial complaint in this case. Accordingly, plaintiffs have satisfied all of the prerequisites to obtaining jurisdiction over a foreign state pursuant to the state-sponsored terrorism exception to the FSIA.
Iraq does not argue otherwise. It instead points to developments since the filing of the original complaint and to several legal doctrines that, it contends, counsel against adjudication of plaintiffs' suit. According to Iraq, dismissal is appropriate because (1) the President, acting pursuant to Congressional authorization, has restored Iraq's sovereign immunity for terrorist acts of the prior regime; (2) plaintiffs' suit presents a non-justiciable political question; (3) adjudication is barred by the recently resuscitated doctrine of foreign-affairs preemption; and (4) resolving plaintiffs' claims would contravene the act-of-state doctrine. All of these interrelated arguments are variations on a common theme - - that permitting plaintiffs to proceed with a lawsuit that could expose the fledgling Iraqi government to millions of dollars in liability runs counter to the foreign-policy interests of the United States and may place the Court in the uncomfortable position of resolving claims that the Executive Branch does not want resolved in this forum.
As the following discussion reveals, however, the Court's position is awkward not because adjudication of plaintiffs' relatively narrow claims portends grave international repercussions, but rather because Iraq seeks the same result - - dismissal without reaching the merits - - that the Court would be obliged to order had the D.C. Circuit adopted the position advanced by the United States, and accepted by then-Circuit Judge Roberts, in Acree. The Acree decision, as all sides acknowledged at the motions hearing, casts a long shadow over this case. It is therefore with that decision that the Court begins its analysis.
1. Restoration of Iraq's Sovereign Immunity
Iraq and the United States lead with an argument that both know is unavailing: that Presidential Determination 2003-23, which implemented the authority conferred by § 1503 of the EWSAA, restored in part Iraq's sovereign immunity by suspending the application of § 1605(a)(7) to Iraq. See Def.'s Opp'n and Reply at 10; Third Statement of Interest of the United States at 2. Both Iraq and the United States concede, as they must, that the D.C. Circuit in Acree rejected this very argument. 370 F.3d at 51; id. at 60-64 (Roberts, J., concurring in part and concurring in the judgment). The Acree majority acknowledged just how close the question was, but ultimately concluded that § 1503 of the EWSAA was only "aimed at legal provisions that present obstacles to assistance and funding for the new Iraqi Government and was not intended to alter the jurisdiction of the federal courts under the FSIA." Id. at 51. Judge Roberts, on the other hand, argued persuasively in his separate concurrence that the phrase "'[a]ny other provision' should be read to mean 'any other provision,' not, as the majority would have it, 'provisions that present obstacles to assistance and funding for the new Iraqi government.'" Id. at 60 (Roberts, J., concurring in part and concurring in the judgment). Under his interpretation of § 1503, the plain language of that statute authorized the President to make § 1605(a)(7) inapplicable to Iraq, and the Presidential Determination invoking that authority had "ousted the federal courts of jurisdiction" over suits brought under that exception. Id.
This Court believes that there is considerable force in the Acree concurring opinion, and would be inclined to adopt that position if free to do so. Nonetheless, this Court remains bound by the Acree majority's interpretation of the EWSAA. Iraq recognizes as much and asks only that the Court "render a ruling on this jurisdictional issue . . . so that defendant may, if necessary, seek further review of it before the en banc D.C. Circuit or the Supreme Court." Def.'s Opp'n and Reply at 10. The Court will do just that, reiterating here that Acree forecloses the argument that the President has made 28 U.S.C. § 1605(a)(7) inapplicable to Iraq and thus partially restored Iraq's sovereign immunity.
2. Political-Question Doctrine
The political-question doctrine, which is "'primarily a function of the separation of powers,'" Schneider v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005) (quoting Baker v. Carr, 369 U.S. 186, 210 (1962)), "excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Japan Whaling Ass'n v. American Cetacean Soc., 478 U.S. 221, 230 (1986). The touchstone for determining whether a case presents a non-justiciable political question remains the nonexhaustive list of factors set forth by the Supreme Court in Baker v. Carr. See Bancoult v. McNamara, 445 F.3d 427, 432 (D.C. Cir. 2006). "Prominent on the surface of any case held to involve a political question," the Court explained, is found  a textually demonstrable constitutional commitment of the issue to a coordinate political department; or  a lack of judicially discoverable and manageable standards for resolving it; or  the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or  the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or  an unusual need for unquestioning adherence to a political decision already made; or  the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker, 369 U.S. at 217. A court may dismiss a case as non-justiciable if it finds any one of those six factors. See Schneider, 412 F.3d at 194. At the same time, courts may not shirk their responsibility of deciding live controversies properly before them "[u]nless one of these [six] formulations is inextricable from the case," a conclusion that should be reached only after a "discriminating inquiry into the precise facts and posture of the particular case." See Baker, 369 U.S. at 217; Bancoult, 445 F.3d at 432-33.
Cases implicating national-security concerns and foreign relations are among those most likely to present political questions. As the D.C. Circuit recently put it, these two topics "serve as the quintessential sources of political questions." Bancoult, 445 F.3d at 433. It is not surprising, therefore, that Iraq places a heavy emphasis on developments since the United States-led invasion of that country in 2003, including actions taken by the political branches. Armed with snippets from the Statements of Interest that the United States has filed in this matter, the text of an Executive Order designed to protect Iraqi assets, figures as to the cost of reconstruction efforts, estimates placing Iraq's potential liability in U.S. courts in the hundreds of millions of dollars, and an obligatory citation to the number of American soldiers fighting there, Iraq insists that adjudication of plaintiffs' claims would unreasonably burden its recently installed government and thereby undermine critical U.S. foreign policy interests. See Def.'s Mem. at 20-25 & n.9; Def.'s Opp'n and Reply at 10-15. Such interference with foreign policy goals as articulated by the political branches, Iraq submits, renders this case non-justiciable under the political-question doctrine.
But despite some broad statements linking the political-question doctrine to any issue that implicates United States foreign policy interests, the Supreme Court has made clear that not "every case or controversy which touches foreign relations lies beyond judicial cognizance." See Baker, 369 U.S. at 311; Japan Whaling Ass'n, 478 U.S. at 229-230; see also Bancoult, 445 F.3d at 435. The Baker Court itself listed six areas related to foreign affairs in which courts could resolve legal questions notwithstanding the primacy of the political branches. See 369 U.S. at 212-13. And in Japan Whaling Ass'n, the Court declined to dismiss on political-question grounds a lawsuit that sought to compel the Secretary of Commerce to declare Japan in violation of an international whaling agreement. 478 U.S. at 230. Decisions of the D.C. Circuit in the foreign-affairs area, of which there are many in recent years, likewise require a case-specific application of the Baker factors, with a focus "upon 'the particular question posed, in terms of the history of its management by the political branches.'" Hwang Geum Joo v. Japan, 413 F.3d 45, 49 (D.C. Cir. 2005) (quoting Baker, 369 U.S. at 211). In its most recent application of the political-question doctrine, the court of appeals further emphasized that the focus must be on the "specific claims" at issue. Omar v. Harvey, - - F.3d - - , 2007 WL 420137, at *8 (D.C. Cir. Feb. 9, 2007). This focus conforms to the Supreme Court's oft-quoted reminder that the doctrine "is one of 'political questions,' not one of 'political cases.'" Baker, 369 U.S. at 217; see also Omar, - - F.3d - - , 2007 WL 420137, at *8 (citing Baker for this proposition). Hence, Iraq cannot secure dismissal on political-question grounds simply by invoking the foreign-affairs label; a closer examination of both the "specific claims" brought by plaintiffs and the issues alleged to constitute "political questions" is required.
That examination, conducted through the lens of the six sometimes-overlapping Baker factors, see Alperin v. Vatican Bank, 410 F.3d 532, 544 (9th Cir. 2005), reveals that plaintiffs' claims are "fully justiciable." See Omar, - - F.3d - - , 2007 WL 420137 at *9. To begin with, plaintiffs' claims are more narrow than some of Iraq's rhetoric suggests. Their claims do not bring into question the propriety of United States policy toward Iraq either at this moment or at the time plaintiffs' fathers were taken hostage by the former regime. Rather, the Third Amended Complaint seeks monetary damages, pursuant to a well-defined statutory scheme established by Congress and a developing body of case law in this district, for the emotional distress and loss of companionship that plaintiffs allegedly suffered when their fathers were detained and held as hostages over ten years ago. Moreover, the Court's rulings below further limit the scope of this case to resolution of a single cause of action. On the surface, then, this case is similar to the numerous other suits against state sponsors of terrorism brought under § 1605(a)(7) and uniformly found to be justiciable.
The next task is to identify with precision the ways in which adjudicating plaintiffs' surviving claim might infringe on the constitutional prerogatives of the political branches. At the motions hearing, counsel for Iraq helpfully clarified the two "policy questions" that Iraq believes this case implicates and whose resolution supposedly belongs to the political branches, and to the Executive Branch in particular. First, Iraq insists that "the Constitution commits to the Executive, not the judiciary, the critical foreign policy determinations involved in promoting the reconstruction of Iraq and shielding a now friendly government from potentially crippling liability for acts of a predecessor dictatorship." Def.'s Opp'n and Reply at 11. In other words, it is up to the Executive to decide whether Iraq's new government should face hundreds of millions of dollars in liability for the transgressions of the prior regime. See Motions Hearing Prelim. Transcript ("Prelim. Tr.") at 27 (describing "the effect of damages liability" on the new Iraqi government as one of the two policy questions).
The second policy question is one that, although lurking in Iraq's filings, defense counsel articulated with precision for the first time at the motions hearing. Seizing on isolated passages from the United States' First Statement of Interest, and in particular on footnote 9 of that document, Iraq maintains that adjudicating this suit in federal court conflicts with the United States' longstanding foreign policy of resolving the existing tort claims of its nationals via state-to-state negotiations with a formerly hostile, but now friendly, regime. Prelim. Tr. at 22-23, 27, 30. As for the footnote in question, it was written in the specific context of the potential effect of § 1503 of the EWSAA on pending claims and was appended to a paragraph that emphasized the "indisputable authority" of the political branches "to terminate claims that stand as an obstacle to achieving the Nation's foreign policy goals." First Statement of Interest at 16. The footnote clarifies that the statute and subsequent Presidential Declaration "have not extinguished plaintiffs' claims on the merits," even while insisting that the political branches could "plainly" have done so via a treaty or an Executive Agreement had they so ...