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Full Court Press: Charles Lane

POW Claims Bump Into Foreign Policy

By Charles Lane
Monday, April 4, 2005; Page A19

On Jan. 19, 1991, in the opening days of the war to liberate Kuwait from Iraqi occupation, Air Force Maj. Jeffrey Tice's F-16 was shot down over Baghdad. Over the next six weeks in Iraqi captivity, Tice was repeatedly beaten, subjected to electric shock and left in a dirty cell with meager rations.

To this day he suffers from nerve damage to his hands from being tightly handcuffed, and he still has occasional nightmares and flashbacks.

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In April 2002, Tice, now a retired lieutenant colonel, and 16 other former POWs and their families sued the Saddam Hussein government in U.S. District Court in Washington. Iraq refused to contest the charges, and in 2003, Judge Richard W. Roberts determined that the plaintiffs were entitled to $959 million in damages, which would have to come from assets now controlled by the new U.S.-backed Iraqi government.

Yet today, the Bush administration is urging the Supreme Court to oppose the former prisoners of war. Resisting payment to war heroes forces the administration to walk an awkward political line, but it argues that the reconstruction of post-Hussein Iraq would be set back if the new government had to pay almost a billion dollars to the Americans.

"Whereas subjecting Iraq to suit . . . served the United States' foreign policy interests by threatening large damage awards for the wrongs of the Hussein regime, in the immediate aftermath of the removal of that regime by military force, such judgments would hinder crucial foreign policy objectives," the Justice Department told the court in a brief filed March 21.

The administration stance has drawn bipartisan fire from 20 members of Congress. The group, headed by Sens. George Allen (R-Va.), Patty Murray (D-Wash.) and Tom Harkin (D-Iowa), has signed a friend-of-the-court brief supporting the plaintiffs. It includes Maryland Reps. Elijah E. Cummings (D) and Roscoe G. Bartlett (R) and Virginia Rep. Virgil H. Goode Jr. (R).

The National League of Families of American Prisoners and Missing in Southeast Asia and the National Commander & National Adjutant of American Ex-Prisoners of War have joined in another brief backing the POWs; that brief was co-signed by former secretary of the Navy John F. Lehman, former national security adviser Anthony Lake and retired Adm. Thomas H. Moorer, a former chairman of the Joint Chiefs of Staff.

And a Web site affiliated with the POWs, www.stoppowtorture.org, charges the Bush administration with hypocrisy: "Despite Secretary [of Defense Donald H.] Rumsfeld telling Congress last summer that 'the right thing to do' was to pay Iraqi detainees injured by U.S. troops at Abu Ghraib, the U.S. government continues to fight in court to deny compensation paid out of Iraqi assets to the American Desert Storm POWs."

As a legal matter, the claim arises under a 1996 federal law that allows Americans to collect damages for acts of air piracy, murder or torture committed by officials or agents of foreign states designated as state sponsors of terrorism by the State Department.

The measure was enacted after American Alisa Flatow, 20, was killed in a bus bombing carried out in Israel by the Palestinian Islamic Jihad, an Iranian-backed group.

The former POWs say the Flatow Amendment's terms apply equally to their situation because Iraq was on the State Department's list of state sponsors of terrorism in 1991.

After the overthrow of Hussein in 2003, however, President Bush, with Congress's approval, lifted the sanctions against Iraq. The administration intervened in the former POWs' case on Iraq's behalf, and the U.S. Court of Appeals for the District of Columbia Circuit threw out Roberts's decision in June 2004, ruling that the Flatow Amendment applies only to officials or agents of Iraq and other countries, not to the countries themselves.

In their appeal to the Supreme Court, filed in December, the former POWs told the justices that the judge's decision "will effectively close the doors of justice for victims of terror unless reviewed and corrected by the court."

But the administration's brief noted that after "the new Iraqi regime has had time to become firmly established, the President may choose to espouse petitioners' claims through diplomatic means."

The high court will probably take up the former POWs' appeal in conference toward the end of April. If four justices agree that the case merits a review, oral argument would take place next fall. If not, then the D.C. Circuit ruling would stand.

In the meantime, Rep. Jim Saxton (R-N.J.) has proposed a bill that would expressly authorize lawsuits against the governments of designated state sponsors of terrorism.

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