Bench Memos

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Feeble, Laughable PFAW--Part VI


The only case I have yet to address in People for the (Un)American Way’s silly 10-page hit job on John Roberts is Acree v. Republic of Iraq. This case presented the question whether Congress had provided plaintiff American prisoners of war who were tortured by Iraq in the first Gulf War the ability to obtain recovery from Iraq. All three members of the panel–Carter appointee Harry Edwards, Clinton appointee David Tatel, and Roberts–answered that question no. Edwards’s majority opinion determined that plaintiffs had no cause of action, whereas Roberts concluded that the court lacked jurisdiction over the case.

In an uncharacteristic display of fairness, PFAW actually discloses that the issue on which Roberts relied is one that the majority opinion calls “an exceedingly close question.” But PFAW cites the majority’s disagreement with Roberts without presenting any aspect of his meticulous statutory analysis. For starters, for example, Roberts pointed out that he was reading the key statutory phrase “any other provision” to mean “any other provision,” whereas the majority was reading it to mean “provisions that present obstacles to assistance and funding for the new Iraqi Government.”

Congress’s difficult balancing of the foreign-relations interests of the United States and the interest in providing remedies to Americans injured by foreign governments often presents wrenching issues. But PFAW’s effort to blame Roberts for the overall result that all three judges agreed Congress dictated is irresponsible.

Bottom line on PFAW’s report: Ten single-spaced pages of feeble attacks, not a single score.


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