Republic of Iraq v. Beaty , 129 S. Ct. 2183 ( 2009 )

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
REPUBLIC OF IRAQ v. BEATY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 07–1090. Argued April 20, 2009—Decided June 8, 2009*
The Foreign Sovereign Immunities Act of 1976 (FSIA) prohibits suits
against other countries in American courts, 28 U. S. C. §1604, with
certain exceptions. One exception, §1605(a)(7) (now repealed),
stripped a foreign state of immunity in any suit arising from certain
acts of terrorism that occurred when the state was designated as a
sponsor of terrorism under §6(j) of the Export Administration Act of
1979 or §620A of the Foreign Assistance Act of 1961.
Iraq was designated as a sponsor of terrorism in 1990, but in 2003,
following the American-led invasion of Iraq, Congress enacted the
Emergency Wartime Supplemental Appropriations Act (EWSAA),
§1503 of which included a proviso clause (the second in a series of
eight) authorizing the President to “make inapplicable with respect to
Iraq [§]620A of the Foreign Assistance Act of 1961 or any other provi
sion of law that applies to countries that have supported terrorism.”
Although President Bush exercised that authority, the D. C. Circuit
held in its 2004 Acree decision that the EWSAA did not permit the
President to waive §1605(a)(7), and thereby restore Iraq’s sovereign
immunity, for claims arising from actions Iraq took while designated
as a sponsor of terrorism.
Thereafter, Congress repealed §1605(a)(7) in §1083(b)(1)(A)(iii) of
the National Defense Authorization Act for Fiscal Year 2008 (NDAA)
and replaced it with a new, roughly similar exception, §1083(a). The
NDAA also declared that nothing in EWSAA “ever authorized, di
rectly or indirectly, the making inapplicable of any provision of [the
FSIA] or the removal of the jurisdiction of any court” (thus purport
——————
* Together with No. 08–539, Republic of Iraq et al. v. Simon et al.,
also on certiorari to the same court.
2 REPUBLIC OF IRAQ v. BEATY
Syllabus
ing to ratify Acree), §1083(c)(4); and authorized the President to
waive “any provision of this section with respect to Iraq” under cer
tain conditions, §1083(d). On the same day the President signed the
NDAA into law he also waived all of §1083’s provisions as to Iraq.
Respondents filed these suits against Iraq in early 2003, alleging
mistreatment by Iraqi officials during and after the 1991 Gulf War.
Under Acree, the courts below refused to dismiss either case on juris
dictional grounds. The D. C. Circuit also rejected Iraq’s alternative
argument that even if §1605(a)(7)’s application to it survived the
President’s EWSAA waiver, the provision was repealed by NDAA
§1083(b)(1)(A)(iii); and that the President had waived NDAA
§1083(a)’s new exception with respect to Iraq under his §1083(d) au
thority. The court held instead that it retained jurisdiction over
cases pending against Iraq when the NDAA was enacted.
Held: Iraq is no longer subject to suit in federal court. Pp. 6–17.
(a) The District Court lost jurisdiction over both suits in May 2003,
when the President exercised his EWSAA authority to make
§1605(a)(7) “inapplicable with respect to Iraq.” Pp. 6–13.
(i) Iraq’s (and the United States’) reading of EWSAA §1503’s sec
ond proviso as sweeping in §1605(a)(7)’s terrorism exception to for
eign sovereign immunity is straightforward. In the proviso’s terms,
the exception is a “provision of law” (indisputably) that “applies to”
(strips immunity from) “countries that have supported terrorism” (as
designated pursuant to certain statutory provisions). Because he ex
ercised his waiver authority with respect to “all” provisions of law en
compassed by the second proviso, his actions made §1605(a)(7) “inap
plicable” to Iraq. Pp. 6–7.
(ii) Acree’s resistance to the above construction was based on a
sophisticated attempt to construe EWSAA §1503’s second proviso as
limiting that section’s principal clause, which authorized suspension
of “any provision of the Iraq Sanctions Act of 1990.” While a proviso’s
“general office . . . is to except something from the enacting clause, or
to qualify and restrain its generality,” United States v. Morrow, 266
U. S. 531, 534, another recognized use is “to introduce independent
legislation,” id., at 535, which was the function of the proviso here.
In any event, §1605(a)(7) falls within the scope of the proviso even
accepting the narrower interpretation adopted by the Acree decision.
Pp. 7–11.
(iii) Respondents’ other objections to the straightforward inter
pretation of EWSAA §1503’s proviso are rejected. Pp. 11–12.
(iv) Nothing in the NDAA changes the above analysis. Although
NDAA §1083(c)(4) appears to ratify Acree, this Court need not decide
whether such a ratification is effective because §1083(d)(1) author
ized the President to “waive any provision of this section with respect
Cite as: 556 U. S. ____ (2009) 3
Syllabus
to Iraq,” and he waived “all” such provisions, including §1083(c)(4).
Pp. 12–13.
(b) The Court rejects the argument that §1605(a)(7)’s inapplicabil
ity does not bar claims arising from Iraq’s conduct prior to the Presi
dent’s waiver. In order to exercise jurisdiction over these cases, the
District Court had to “apply” §1605(a)(7) with respect to Iraq, but the
President’s waiver made that provision “inapplicable.” No retroactiv
ity problem is posed by this construction, if only because the primary
conduct by Iraq that forms the basis for these suits actually occurred
before §1605(a)(7)’s enactment. Pp. 13–16.
(c) Respondents also argue that EWSAA §1503’s sunset clause—
under which “the authorities contained in [that] section” expired in
2005—revived §1605(a)(7) and restored jurisdiction as of the sunset
date. But expiration of the §1503 authorities is not the same as can
cellation of the effect of the prior valid exercise of those authorities.
Pp. 16–17.
No. 07–1090, and No. 08–539, 529 F. 3d 1187, reversed.
SCALIA, J., delivered the opinion for a unanimous Court.
Cite as: 556 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 07–1090 and 08–539
_________________
REPUBLIC OF IRAQ, PETITIONER
07–1090 v.
JORDAN BEATY ET AL.
REPUBLIC OF IRAQ, ET AL., PETITIONERS
08–539 v.
ROBERT SIMON ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 8, 2009]
JUSTICE SCALIA delivered the opinion of the Court.
We consider in these cases whether the Republic of Iraq
remains subject to suit in American courts pursuant to the
terrorism exception to foreign sovereign immunity, now
repealed, that had been codified at 28 U. S. C. §1605(a)(7).
I
A
Under the venerable principle of foreign sovereign im
munity, foreign states are ordinarily “immune from the
jurisdiction of the courts of the United States and of the
States,” §1604. See generally Schooner Exchange v.
McFaddon, 7 Cranch 116 (1812). But the statute embody
ing that principle—the Foreign Sovereign Immunities Act
of 1976 (FSIA), 28 U. S. C. §1602 et seq.—recognizes a
number of exceptions; if any of these is applicable, the
state is subject to suit, and federal district courts have
2 REPUBLIC OF IRAQ v. BEATY
Opinion of the Court
jurisdiction to adjudicate the claim. §1330(a); Verlinden
B. V. v. Central Bank of Nigeria, 461 U. S. 480, 489 (1983).
In 1996, Congress added to the list of statutory excep
tions one for state sponsors of terrorism, which was codi
fied at 28 U. S. C. §1605(a)(7). Subject to limitations not
relevant here, that exception stripped immunity in any
suit for money damages
“against a foreign state for personal injury or death
that was caused by an act of torture, extrajudicial kill
ing, aircraft sabotage, hostage taking, or the provision
of material support or resources . . . for such an act . . .
except that the court shall decline to hear a claim un
der this paragraph—
“(A) if the foreign state was not designated as a
state sponsor of terrorism under section 6(j) of the Ex
port Administration Act of 1979 (50 U. S. C. App.
2405(j)) or section 620A of the Foreign Assistance
Act of 1961 (22 U. S. C. 2371) at the time the act
occurred . . . .”
In brief, §1605(a)(7) stripped immunity from a foreign
state for claims arising from particular acts, if those acts
were taken at a time when the state was designated as a
sponsor of terrorism.
B
In September 1990, Acting Secretary of State Lawrence
Eagleburger formally designated Iraq, pursuant to §6(j) of
the Export Administration Act of 1979, as redesignated
and amended, 99 Stat. 135, 50 U. S. C. App. §2405(j), as “a
country which has repeatedly provided support for acts of
international terrorism,” 55 Fed. Reg. 37793. Over a
decade later, in March 2003, the United States and a
coalition of allies initiated military action against that
country. In a matter of weeks, the regime of Iraqi dictator
Saddam Hussein collapsed and coalition forces occupied
Cite as: 556 U. S. ____ (2009) 3
Opinion of the Court
Baghdad. American attention soon shifted from combat
operations to the longer term project of rebuilding Iraq,
with the ultimate goal of creating a stable ally in the
region.
Toward that end, Congress enacted in April 2003 the
Emergency Wartime Supplemental Appropriations Act
(EWSAA), 117 Stat. 559. Section 1503 of that Act author
ized the President to “make inapplicable with respect to
Iraq section 620A of the Foreign Assistance Act of 1961 or
any other provision of law that applies to countries that
have supported terrorism.” Id., at 579. President George
W. Bush exercised that authority to its fullest extent in
May 2003, declaring “inapplicable with respect to Iraq
section 620A of the Foreign Assistance Act of 1961 . . . and
any other provision of law that applies to countries that
have supported terrorism.” 68 Fed. Reg. 26459.
Shortly thereafter, the United States Court of Appeals
for the District of Columbia Circuit had occasion to con
sider whether that Presidential action had the effect of
rendering inapplicable to Iraq the terrorism exception to
foreign sovereign immunity. The Court concluded in a
divided panel decision that the President’s EWSAA au
thority did not permit him to waive §1605(a)(7), and
thereby restore sovereign immunity to Iraq, for claims
arising from acts it had taken while designated as a spon
sor of terror. Acree v. Republic of Iraq, 370 F. 3d 41, 48
(2004). Because Iraq succeeded in having the claims
against it dismissed on other grounds, id., at 59–60, it
could not seek certiorari to challenge the D. C. Circuit’s
interpretation of the EWSAA.
C
There is yet another legislative enactment, and yet
another corresponding executive waiver, that bear on the
question presented. The National Defense Authorization
Act for Fiscal Year 2008 (NDAA), 122 Stat. 3, was passed
4 REPUBLIC OF IRAQ v. BEATY
Opinion of the Court
in January 2008. That Act (1) repealed the FSIA’s terror
ism exception, §1083(b)(1)(A)(iii); (2) replaced it with a
new, roughly similar exception, §1083(a); (3) declared that
nothing in §1503 of the EWSAA had “ever authorized,
directly or indirectly, the making inapplicable of any
provision of chapter 97 of title 28, United States Code, or
the removal of the jurisdiction of any court of the United
States” (thus purporting to ratify the Court of Appeals’
Acree decision), §1083(c)(4), 122 Stat. 343; and (4) author
ized the President to waive “any provision of this section
with respect to Iraq” so long as he made certain findings
and so notified Congress within 30 days, §1083(d), id., at
343–344.
The last provision was added to the NDAA after the
President vetoed an earlier version of the bill, which did
not include the waiver authority. The President’s veto
message said that the bill “would imperil billions of dollars
of Iraqi assets at a crucial juncture in that nation’s recon
struction efforts.” Memorandum to the House of Repre
sentatives Returning Without Approval the “National
Defense Authorization Act for Fiscal Year 2008,” 43
Weekly Comp. of Pres. Doc. 1641 (2007). Only when Con
gress added the waiver authority to the NDAA did the
President agree to approve it; and on the same day he
signed it into law he also officially waived “all provisions
of section 1083 of the Act with respect to Iraq,” 73 Fed.
Reg. 6571 (2008).
II
We consider today two cases that have been navigating
their way through the lower courts against the backdrop of
the above-described congressional, military, Presidential,
and judicial actions. Respondents in the Simon case are
American nationals (and relatives of those nationals) who
allege that they were captured and cruelly mistreated by
Iraqi officials during the 1991 Gulf War. The Beaty re
Cite as: 556 U. S. ____ (2009) 5
Opinion of the Court
spondents are the children of two other Americans, Ken
neth Beaty and William Barloon, who are alleged to have
been similarly abused by the regime of Saddam Hussein in
the aftermath of that war. Each set of respondents filed
suit in early 2003 against Iraq in the United States Dis
trict Court for the District of Columbia, alleging violations
of local, federal, and international law.
Respondents invoked the terrorism exception to foreign
sovereign immunity, and given Acree’s holding that the
President had not rendered that statutory provision inap
plicable to Iraq, the District Court refused to dismiss
either case on jurisdictional grounds. In Beaty, after the
District Court denied Iraq’s motion to dismiss, 480
F. Supp. 2d 60, 70 (2007), Iraq invoked the collateral order
doctrine to support an interlocutory appeal. See Mitchell
v. Forsyth, 472 U. S. 511, 524–529 (1985). In Simon, the
District Court determined that the claims were time
barred and dismissed on that alternative basis, Vine v.
Republic of Iraq, 459 F. Supp. 2d 10, 25 (2006), after
which the Simon respondents appealed.
In the Beaty appeal, Iraq (supported by the United
States as amicus) requested that the Court of Appeals for
the District of Columbia Circuit reconsider Acree’s holding
en banc. The Court denied that request over the dissent of
Judges Brown and Kavanaugh, and a panel then summa
rily affirmed in an unpublished order the District Court’s
denial of Iraq’s motion to dismiss. No. 07–7057 (Nov. 21,
2007) (per curiam), App. to Pet. for Cert. 1a–2a.
While the Simon appeal was still pending, Congress
enacted the NDAA, and the Court of Appeals requested
supplemental briefing addressing the impact of that legis
lation on the court’s jurisdiction. Iraq contended, as an
alternative argument to its position that Acree was
wrongly decided, that even if 28 U. S. C. §1605(a)(7)’s
application to Iraq survived the President’s EWSAA
waiver, the provision was repealed by §1083(b)(1)(A)(iii) of
6 REPUBLIC OF IRAQ v. BEATY
Opinion of the Court
the NDAA, 122 Stat. 341; and that the new terrorism
exception to sovereign immunity—which was created by
the NDAA and codified at 28 U. S. C. A. §1605A (July
2008 Supp.)—was waived by the President with respect to
Iraq pursuant to his NDAA authority.
The Court of Appeals rejected that argument, holding
instead, based on a close reading of the statutory text, that
“the NDAA leaves intact our jurisdiction over cases . . .
that were pending against Iraq when the Congress en
acted the NDAA.” 529 F. 3d 1187, 1194 (2008). The panel
then reversed the District Court’s determination that the
Simon respondents’ claims were untimely, id., at 1195–
1196, and rebuffed Iraq’s request for dismissal under the
political question doctrine, id., at 1196–1198.
Iraq sought this Court’s review of both cases, asking us
to determine whether under current law it remains sub
ject to suit in the federal courts. We granted certiorari,
555 U. S. ___ (2009), and consolidated the cases.
III
A
Section 1503 of the EWSAA consists of a principal
clause, followed by eight separate proviso clauses. The
dispute in these cases concerns the second of the provisos.
The principal clause and that proviso read:
“The President may suspend the application of any
provision of the Iraq Sanctions Act of 1990: . . . Pro
vided further, That the President may make inappli
cable with respect to Iraq section 620A of the Foreign
Assistance Act of 1961 or any other provision of law
that applies to countries that have supported terror
ism . . . .” 117 Stat. 579.
Iraq and the United States both read the quoted proviso’s
residual clause as sweeping in the terrorism exception to
foreign sovereign immunity. Certainly that reading is, as
Cite as: 556 U. S. ____ (2009) 7
Opinion of the Court
even the Acree Court acknowledged, “straightforward.”
370 F. 3d, at 52.
Title 28 U. S. C. §1605(a)(7)’s exception to sovereign
immunity for state sponsors of terrorism stripped jurisdic
tional immunity from a country unless “the foreign state
was not designated as a state sponsor of terrorism.” This
is a “provision of law” (indisputably) that “applies to”
(strips immunity from) “countries that have supported
terrorism” (as designated pursuant to certain statutory
provisions). Of course the word “any” (in the phrase “any
other provision of law”) has an “expansive meaning,”
United States v. Gonzales, 520 U. S. 1, 5 (1997), giving us
no warrant to limit the class of provisions of law that the
President may waive. Because the President exercised his
authority with respect to “all” provisions of law encom
passed by the second proviso, his actions made §1605(a)(7)
“inapplicable” to Iraq.
To a layperson, the notion of the President’s suspending
the operation of a valid law might seem strange. But the
practice is well established, at least in the sphere of for
eign affairs. See United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 322–324 (1936) (canvassing prece
dents from as early as the “inception of the national gov
ernment”). The granting of Presidential waiver authority
is particularly apt with respect to congressional elimina
tion of foreign sovereign immunity, since the granting or
denial of that immunity was historically the case-by-case
prerogative of the Executive Branch. See, e.g., Ex parte
Peru, 318 U. S. 578, 586–590 (1943). It is entirely unre
markable that Congress, having taken upon itself in the
FSIA to “free the Government” from the diplomatic pres
sures engendered by the case-by-case approach, Verlinden,
461 U. S., at 488, would nonetheless think it prudent to
afford the President some flexibility in unique circum
stances such as these.
8 REPUBLIC OF IRAQ v. BEATY
Opinion of the Court
B
The Court of Appeals in Acree resisted the above con
struction, primarily on the ground that the relevant text is
found in a proviso. We have said that, at least presump
tively, the “grammatical and logical scope [of a proviso] is
confined to the subject-matter of the principal clause.”
United States v. Morrow, 266 U. S. 531, 534–535 (1925).
Using that proposition as a guide, the Acree panel strove
mightily to construe the proviso as somehow restricting
the principal clause of EWSAA §1503, which authorized
the President to suspend “any provision of the Iraq Sanc
tions Act of 1990,” 117 Stat. 579.
In the Court of Appeals’ view, the second proviso related
to that subsection of the Iraq Sanctions Act (referred to in
the principal provision) which dictated that certain enu
merated statutory provisions, including §620A of the
Foreign Assistance Act of 1961 and “all other provisions of
law that impose sanctions against a country which has
repeatedly provided support for acts of international ter
rorism,” shall be fully enforced against Iraq. §586F(c), 104
Stat. 2051 (emphasis added). The panel understood the
second EWSAA proviso as doing nothing more than clari
fying that the authority granted by the principal clause (to
suspend any part of the Iraq Sanctions Act) included the
power to make inapplicable to Iraq the various independ
ent provisions of law that §586F(c) of the Iraq Sanctions
Act instructed to be enforced against Iraq—which might
otherwise continue to apply of their own force even with
out the Iraq Sanctions Act. However, the residual clause
of §586F(c) encompasses only provisions that “impose
sanctions”; and, in the Court of Appeals’ view, that ex
cludes §1605(a)(7), which is a rule going instead to the
jurisdiction of the federal courts. Thus, the EWSAA pro
viso swept only as broadly as §586F(c), and therefore did
not permit the President to waive the FSIA terrorism
exception.
Cite as: 556 U. S. ____ (2009) 9
Opinion of the Court
This is a highly sophisticated effort to construe the
proviso as a limitation upon the principal clause. Ulti
mately, however, we think that effort neither necessary
nor successful. It is true that the “general office of a pro
viso is to except something from the enacting clause, or to
qualify and restrain its generality.” Morrow, supra, at
534. But its general (and perhaps appropriate) office is
not, alas, its exclusive use. Use of a proviso “to state a
general, independent rule,” Alaska v. United States, 545
U. S. 75, 106 (2005), may be lazy drafting, but is hardly a
novelty. See, e.g., McDonald v. United States, 279 U. S.
12, 21 (1929). Morrow itself came with the caveat that a
proviso is sometimes used “to introduce independent
legislation.” 266 U. S., at 535. We think that was its
office here. The principal clause granted the President a
power; the second proviso purported to grant him an
additional power. It was not, on any fair reading, an
exception to, qualification of, or restraint on the principal
power.
Contrasting the second EWSAA proviso to some of the
other provisos illustrates the point. For example, the first
proviso cautioned that “nothing in this section shall affect
the applicability of the Iran-Iraq Arms Non-Proliferation
Act of 1992,” 117 Stat. 579, and the third forbade the
export of certain military equipment “under the authority
of this section.” Ibid. Both of these plainly sought to
define and limit the authority granted by the principal
clause. The fourth proviso, however, mandated that “sec
tion 307 of the Foreign Assistance Act of 1961 shall not
apply with respect to programs of international organiza
tions for Iraq,” ibid., and it is impossible to see how that
self-executing suspension of a distinct statute in any way
cabined or clarified the principal clause’s authorization to
suspend the Iraq Sanctions Act.
There are other indications that the second proviso’s
waiver authority was not limited to the statutory provi
10 REPUBLIC OF IRAQ v. BEATY
Opinion of the Court
sions embraced by §586F(c) of the Iraq Sanctions Act. If
that is all it was meant to accomplish, why would Con
gress not simply have tracked §586F(c)’s residual clause?
Instead of restricting the President’s authority to statutes
that “impose sanctions” on sponsors of terror, the EWSAA
extended it to any statute that “applies” to such states.
That is undoubtedly a broader class.
Even if the best reading of the EWSAA proviso were
that it encompassed only statutes that impose sanctions or
prohibit assistance to state sponsors of terrorism, see
Acree, 370 F. 3d, at 54, we would disagree with the Court
of Appeals’ conclusion that the FSIA exception is not such
a law. Allowing lawsuits to proceed certainly has the
extra benefit of facilitating the compensation of injured
victims, but the fact that §1605(a)(7) targeted only foreign
states designated as sponsors of terrorism suggests that
the law was intended as a sanction, to punish and deter
undesirable conduct. Stripping the immunity that foreign
sovereigns ordinarily enjoy is as much a sanction as elimi
nating bilateral assistance or prohibiting export of muni
tions (both of which are explicitly mandated by §586F(c) of
the Iraq Sanctions Act). The application of this sanction
affects the jurisdiction of the federal courts, but that fact
alone does not deprive it of its character as a sanction.
It may well be that when Congress enacted the EWSAA
it did not have specifically in mind the terrorism exception
to sovereign immunity. The Court of Appeals evidently
found that to be of some importance. Id., at 56 (noting
there is “no reference in the legislative history to the
FSIA”). But the whole value of a generally phrased resid
ual clause, like the one used in the second proviso, is that
it serves as a catchall for matters not specifically contem
plated—known unknowns, in the happy phrase coined by
Secretary of Defense Donald Rumsfeld. Pieces of Intelli
gence: The Existential Poetry of Donald H. Rumsfeld 2 (H.
Seely comp. 2003). If Congress wanted to limit the waiver
Cite as: 556 U. S. ____ (2009) 11
Opinion of the Court
authority to particular statutes that it had in mind, it
could have enumerated them individually.
We cannot say with any certainty (for those who think
this matters) whether the Congress that passed the
EWSAA would have wanted the President to be permitted
to waive §1605(a)(7). Certainly the exposure of Iraq to
billions of dollars in damages could be thought to jeopard
ize the statute’s goal of speedy reconstruction of that
country. At least the President thought so. And in the
“vast external realm, with its important, complicated,
delicate and manifold problems,” Curtiss-Wright Export
Corp., 299 U. S., at 319, courts ought to be especially wary
of overriding apparent statutory text supported by execu
tive interpretation in favor of speculation about a law’s
true purpose.1
C
Respondents advance two other objections to the
straightforward interpretation of the EWSAA proviso.
First, in a less compelling variant of the D. C. Circuit’s
approach, the Simon respondents argue that “section 620A
of the Foreign Assistance Act of 1961 or any other provi
sion of law that applies to countries that have supported
terrorism” means section 620A of the Foreign Assistance
Act or any other provision of law cited therein. The provi
sion would thus allow the President to make inapplicable
to Iraq the statutes that §620A precludes from being used
to provide support to terror-sponsoring nations. Not to
put too fine a point upon it, that is an absurd reading, not
——————
1 The eighth proviso of EWSAA §1503 says that absent further con
gressional action, “the authorities contained in this section shall expire
on September 30, 2004.” 117 Stat. 579. The Court of Appeals ex
pressed doubt that Congress would have wanted federal-court jurisdic
tion to disappear for a year and then suddenly return. Acree v. Repub
lic of Iraq, 370 F. 3d 41, 56–57 (CADC 2004). Our analysis of the
sunset provision, see Part V, infra, disposes of that concern.
12 REPUBLIC OF IRAQ v. BEATY
Opinion of the Court
only textually but in the result it produces: It would mean
that the effect of the EWSAA was to permit the President
to exclude Iraq from, rather than include it within, such
beneficent legislation as the Food for Peace Act of 1966, 7
U. S. C. §1691 et seq.
Both respondents also invoke the canon against implied
repeals, TVA v. Hill, 437 U. S. 153, 190 (1978), but that
canon has no force here. Iraq’s construction of the statute
neither rests on implication nor effects a repeal. The
EWSAA proviso expressly allowed the President to render
certain statutes inapplicable; the only question is its
scope. And it did not repeal anything, but merely granted
the President authority to waive the application of par
ticular statutes to a single foreign nation. Cf. Clinton v.
City of New York, 524 U. S. 417, 443–445 (1998).
D
We must consider whether anything in the subsequent
NDAA legislation changes the above analysis. In particu
lar, §1083(c)(4) of that statute specifically says that
“[n]othing in section 1503 of the [EWSAA] has ever au
thorized, directly or indirectly, the making inapplicable of
any provision of chapter 97 of title 28, United States Code,
or the removal of the jurisdiction of any court of the
United States.” 122 Stat. 343. This looks like a ratifica
tion by Congress of the conclusion reached in the Acree
decision.
Is such a ratification effective? The NDAA is not subse
quent legislative history, as Iraq claims, cf. Sullivan v.
Finkelstein, 496 U. S. 617, 632 (1990) (SCALIA, J., concur
ring in part); rather, it is binding law, approved by the
Legislature and signed by the President. Subsequent
legislation can of course alter the meaning of an existing
law for the future; and it can even alter the past operation
of an existing law (constitutional objections aside) if it
makes that retroactive operation clear. Landgraf v. USI
Cite as: 556 U. S. ____ (2009) 13
Opinion of the Court
Film Products, 511 U. S. 244, 267–268 (1994). To tell the
truth, however, we are unaware of any case dealing with
the retroactive amendment of a law that had already
expired, as the EWSAA had here. And it is doubtful
whether Congress can retroactively claw back power it has
given to the Executive, invalidating Presidential action
that was valid when it was taken. Thankfully, however,
we need not explore these difficulties here.
In §1083(d)(1) of the NDAA, the President was given
authority to “waive any provision of this section with
respect to Iraq.” 122 Stat. 343. The President proceeded
to waive “all” provisions of that section as to Iraq, includ
ing (presumably) §1083(c)(4). 73 Fed. Reg. 6571. The Act
can therefore add nothing to our analysis of the EWSAA.
Respondent Beaty objects that the President cannot waive
a fact. But neither can Congress legislate a fact. Section
1083(c)(4) could change our interpretation of the disputed
EWSAA language only if it has some substantive effect,
changing what would otherwise be the law. And if the
President’s waiver does anything, it eliminates any sub
stantive effect that the NDAA would otherwise have on
cases to which Iraq is a party.2
IV
Having concluded that the President did render 28
U. S. C. §1605(a)(7) “inapplicable with respect to Iraq,”
and that such action was within his assigned powers, we
consider respondents’ argument that the inapplicability of
——————
2 Respondents contend that the NDAA waiver is irrelevant because
the President’s veto of the initial version of the bill—which did not
include the waiver authority—was defective. We need not inquire into
that point, since Congress (evidently thinking the veto effective) en
acted a new bill that was identical in all material respects but for the
addition of presidential waiver authority. Since that authority would
be nugatory, and the rest of the new law utterly redundant, if a law
resulting from the former bill remained in effect, that law would have
been effectively repealed.
14 REPUBLIC OF IRAQ v. BEATY
Opinion of the Court
the provision does not bar their claims, since they arise
from Iraq’s conduct prior to the President’s waiver. Any
other interpretation, they say, would cause the law to
operate in a disfavored retroactive fashion.
This argument proceeds as follows: The FSIA exception
becomes “applicable” to a foreign state when that foreign
state is designated as a sponsor of terrorism. In parallel
fashion, rendering the exception “inapplicable” should be
equivalent to removing the state’s designation. And under
§1605(a)(7), jurisdiction turned on the foreign state’s
designation “at the time the act [giving rise to the claim]
occurred.” On this reading, the President’s waiver meant
only that Iraq could not be sued pursuant to §1605(a)(7)
for any future conduct, even though it technically re
mained designated as a state sponsor of terrorism.
Respondents support this interpretation with a policy
argument and a canon of construction. First, why would
Congress have sought to give Iraq better treatment than
any other state that saw the error of its ways, reformed its
behavior, and was accordingly removed from the list of
terror-sponsoring regimes? See Acree, 370 F. 3d, at 56(calling such a result “perplexing”). Providing immunity
for future acts is one thing, but wiping the slate clean is
quite another. Second, this Court has often applied a
presumption that, absent clear indication to the contrary,
statutory amendments do not apply to pending cases.
Landgraf, supra, at 280. A narrow reading of “inapplica
ble” would better comport with that presumption.
As a textual matter, the proffered definition of “inappli
cable” is unpersuasive. If a provision of law is “inapplica
ble” then it cannot be applied; to “apply” a statute is “[t]o
put [it] to use.” Webster’s New International Dictionary
131 (2d ed. 1954). When the District Court exercised
jurisdiction over these cases against Iraq, it surely was
putting §1605(a)(7) to use with respect to that country.
Without the application of that provision, there was no
Cite as: 556 U. S. ____ (2009) 15
Opinion of the Court
basis for subject-matter jurisdiction. 28 U. S. C. §§1604,
1330(a). If Congress had wanted to authorize the Presi
dent merely to cancel Iraq’s designation as a state sponsor
of terrorism, then Congress could have done so.
As a policy matter, moreover, we do not find that result
particularly “perplexing.” As then-Judge Roberts ex
plained in his separate opinion in Acree, Congress in 2003
“for the first time confronted the prospect that a friendly
successor government would, in its infancy, be vulnerable
under Section 1605(a)(7) to crushing liability for the ac
tions of its renounced predecessor.” 370 F. 3d, at 61 (opin
ion concurring in part and concurring in judgment) (em
phasis in original). The Government was at the time
spending considerable sums of money to rebuild Iraq, see
Rogers, Congress Gives Initial Approval for War Funding,
Airline Aid, Wall Street Journal, Apr. 4, 2003, p. A10.
What would seem perplexing is converting a billion-dollar
reconstruction project into a compensation scheme for a
few of Saddam’s victims.
As for the judicial presumption against retroactivity,
that does not induce us to read the EWSAA proviso more
narrowly. Laws that merely alter the rules of foreign
sovereign immunity, rather than modify substantive
rights, are not operating retroactively when applied to
pending cases. Foreign sovereign immunity “reflects
current political realities and relationships,” and its avail
ability (or lack thereof) generally is not something on
which parties can rely “in shaping their primary conduct.”
Republic of Austria v. Altmann, 541 U. S. 677, 696 (2004);
see also id., at 703 (SCALIA, J., concurring).
In any event, the primary conduct by Iraq that forms
the basis for these suits actually occurred prior to the
enactment of the FSIA terrorism exception in 1996. See
Saudi Arabia v. Nelson, 507 U. S. 349, 351 (1993). That
is, Iraq was immune from suit at the time it is alleged to
have harmed respondents. The President’s elimination of
16 REPUBLIC OF IRAQ v. BEATY
Opinion of the Court
Iraq’s later subjection to suit could hardly have deprived
respondents of any expectation they held at the time of
their injury that they would be able to sue Iraq in United
States courts.
V
Accordingly, the District Court lost jurisdiction over
both suits in May 2003, when the President exercised his
authority to make §1605(a)(7) inapplicable with respect to
Iraq. At that point, immunity kicked back in and the
cases ought to have been dismissed, “the only function
remaining to the court [being] that of announcing the fact
and dismissing the cause.” Ex parte McCardle, 7 Wall.
506, 514 (1869).
In respondents’ view, that is not fatal to their claims.
They point to the eighth proviso in §1503 of the EWSAA:
“Provided further, That the authorities contained in
this section shall expire on September 30, 2004, or on
the date of enactment of a subsequent Act authorizing
assistance for Iraq and that specifically amends, re
peals or otherwise makes inapplicable the authorities
of this section, whichever occurs first.” 117 Stat. 579.
The effect of this provision, they contend, is that the
EWSAA waiver expired in 2005,3 and that when it did so
§1605(a)(7) was revived, immunity was again stripped,
and jurisdiction was restored. If that is true, then at the
very least they ought to be permitted to refile their suits
and claim equitable tolling for the period between 2005
and the present, during which time they understandably
relied on Acree’s holding.
The premise, however, is flawed. It is true that the
“authorities contained in” §1503 of the EWSAA expired,
but expiration of the authorities (viz., the President’s
——————
3 The sunset date was extended by one year in a later bill. 108–106,
§2204(2), 117 Stat. 1230.
Cite as: 556 U. S. ____ (2009) 17
Opinion of the Court
powers to suspend and make inapplicable certain laws) is
not the same as cancellation of the effect of the President’s
prior valid exercise of those authorities (viz., the restora
tion of sovereign immunity). As Iraq points out, Congress
has in other statutes provided explicitly that both the
authorities granted and the effects of their exercise sunset
on a particular date. E.g., 19 U. S. C. §2432(c)(3) (“A
waiver with respect to any country shall terminate on the
day after the waiver authority granted by this subsection
ceases to be effective with respect to such country”). The
EWSAA contains no such language.
We think the better reading of the eighth EWSAA pro
viso (the sunset clause) is that the powers granted by the
section could be exercised only for a limited time, but that
actions taken by the President pursuant to those powers
(e.g., suspension of the Iraq Sanctions Act) would not lapse
on the sunset date. If it were otherwise, then the Iraq
Sanctions Act—which has never been repealed, and which
imposes a whole host of restrictions on relations with
Iraq—would have returned to force in September 2005.
Nobody believes that is so.
* * *
When the President exercised his authority to make
inapplicable with respect to Iraq all provisions of law that
apply to countries that have supported terrorism, the
exception to foreign sovereign immunity for state sponsors
of terrorism became inoperative as against Iraq. As a
result, the courts below lacked jurisdiction; we therefore
need not reach Iraq’s alternative argument that the NDAA
subsequently stripped jurisdiction over the cases. The
judgments of the Court of Appeals are reversed.
It is so ordered.