Defense bill’s demise stymies ex-POWs’ suit

Times Staff Writers

President Bush surprised Congress by refusing to sign a Defense Department authorization bill, in part because the legislation could revive a lawsuit brought by American prisoners of war during the 1991 Persian Gulf War who say they were tortured by the Iraqis.

Their suit sought to establish the principle that war prisoners who were tortured in violation of the Geneva Convention were entitled to sue the country that tortured them.

By keeping the bill from becoming law, the president delayed pay raises for the troops and improvements in the care of wounded veterans. On Thursday, he pointed to a little-noted provision in the huge bill and said it could trigger a wave of lawsuits that might “imperil billions of dollars of Iraqi assets.”


The chief reason

But he did not say that the main lawsuit that had drawn the attention of the White House and the Iraqis was a claim from American prisoners of war.

The 17 ex-POWs, most of them pilots who had been shot down, sued Saddam Hussein’s regime for their brutal treatment after they were captured.

In 1996, Congress partly waived the rule that shields foreign countries from being sued. And after hearing evidence of how the former POWs had been beaten and starved, a judge awarded them a total judgment of $959 million.

But the verdict came shortly after the United States had invaded Iraq and toppled Hussein. Bush administration lawyers then intervened in the case and said the judgment should be thrown out.

The move rankled some military and veterans groups. “It seems so strange to have our country fighting us on this,” said retired Air Force Col. David W. Eberly, who was the senior officer among the former POWs.

But a U.S. appeals court agreed with the administration and overturned the verdict. The judges ruled that individuals were not entitled to sue foreign governments for torture and abuse, despite the 1996 law. The case appeared to be at an end two years ago when the Supreme Court refused to hear an appeal from the ex-POWs.


“What message do we send for the future” if war prisoners can be tortured with impunity, asked Lt. Col. Clifford Acree at the time. A pilot in 1991, he was shot down by a surface-to-air missile on the first day of the Persian Gulf War and was blindfolded and beaten after he was taken captive. He later served as the lead plaintiff in the suit.

Amending the law

But this fall, Sen. Frank R. Lautenberg (D-N.J.) won an amendment to the Defense Department bill making clear that individuals who were victims of state-sponsored torture or other human rights violations could sue for damages. The measure, broadly supported by Republicans and Democrats, would also allow such claims to be revived if they were dismissed earlier. “My bill would provide victims of state-sponsored terrorism the justice they deserve,” he said.

Even though Lautenberg said his measure was targeted at Iran and Libya, Bush said Thursday that he would not sign the bill because of the possible effect on Iraq. He did not mention the 1991 POWs directly, although he referred to their case.

The president described the new provision as being “contrary to international legal norms.” If signed into law, it “would expose Iraq to new liability of at least several billion dollars,” Bush said in his disapproval message. It “would attempt to revive a $959-million judgment against the new democratic government of Iraq based on the misdeeds of the Saddam Hussein regime. Exposing Iraq to such significant financial burdens would weaken the close partnership between the United States and Iraq during this critical period in Iraq’s history.”

Moreover, the new law could trigger similar suits against the United States, he added. The new measure “would be viewed with alarm by the international community and would invite reciprocal action against United States assets abroad,” Bush said.

White House spokesman Tony Fratto said the president’s concern went well beyond the case of the 1991 POWs: “That’s a major case out there, but, really, the concern is the accumulation of all the potential cases that could really cripple Iraq if they [plaintiffs and their lawyers] could enforce liens against assets.”


Attorneys who represented the ex-POWs said in 2005 that they did not expect to collect the nearly $1-billion judgment. However, they said that they hoped the U.S. government would help them negotiate a settlement for a much smaller amount.

Immunity was a barrier

For many years, human rights lawyers have been seeking to win in court for victims of government-sponsored brutality. The main obstacle has been the legal rule that grants “sovereign immunity” to foreign countries and their leaders.

In the past, it has protected ex-dictators and tyrants from being held accountable for their actions. Lautenberg’s amendment sets aside this immunity for nations that are deemed to be “state sponsors of terrorism.”

But government attorneys also worry that weakening the sovereign-immunity rule could encourage filing legal claims against the United States or U.S. officials for abuse allegedly meted by American authorities.

“I urge the Congress to address the flaw in Section 1083 as quickly as possible so I may sign into law” the full bill, Bush said.