Acree, Clifford v. Repub Iraq

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 7, 2004 Decided June 4, 2004

No. 03-5232

CLIFFORD ACREE, COLONEL, ET AL.,
APPELLEES

v.

REPUBLIC OF IRAQ, ET AL.,

UNITED STATES OF AMERICA,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 02cv00632)

Gregory G. Katsas, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellant.
With him on the brief were Peter D. Keisler, Assistant
Attorney General, Roscoe C. Howard, Jr., U.S. Attorney,

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

Douglas N. Letter, H. Thomas Byron, III, Douglas Hall-
ward–Driemeier, and Lewis Yelin, Attorneys.
Stewart A. Baker argued the cause for appellee Clifford
Acree, et al. With him on the brief were Stephen A. Fennell,
Bennett Evan Cooper, and John Norton Moore.
Daniel J. Popeo and Paul D. Kamenar were on the brief
for amici curiae in support of appellees.
Before: EDWARDS, TATEL, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
Opinion concurring in part and concurring in the judgment
filed by Circuit Judge ROBERTS.
EDWARDS, Circuit Judge: Appellees in this case are 17
American soldiers, joined by their close family members, who
were captured and held as prisoners of war by the Iraqi
Government while serving in the Gulf War in early 1991.
Appellees brought suit in the District Court under the terror-
ism exception to the Foreign Sovereign Immunities Act
(‘‘FSIA’’), 28 U.S.C. § 1605(a)(7) (2000), against the Republic
of Iraq, the Iraqi Intelligence Service, and Saddam Hussein,
in his official capacity as President of Iraq (collectively
‘‘Iraq’’), seeking compensatory and punitive damages for the
horrific acts of torture they suffered during their captivity.
After Iraq failed to appear, the District Court examined
appellees’ evidentiary submissions and entered judgment in
their favor. The District Court awarded damages against
Iraq totaling over $959 million. See Acree v. Republic of
Iraq, 271 F. Supp. 2d 179 (D.D.C. 2003) (‘‘Acree I’’).
Two weeks after the District Court entered its judgment
for appellees, the United States filed a motion to intervene for
the purpose of contesting the District Court’s subject matter
jurisdiction. The United States argued that recently enacted
provisions of the Emergency Wartime Supplemental Appro-
priations Act, Pub. L. No. 108–11, § 1503, 117 Stat. 559, 579
(2003), made the terrorism exception to the FSIA inapplicable
to Iraq and thereby stripped the District Court of its jurisdic-
tion over appellees’ lawsuit. The District Court denied the
 3

United States’ motion to intervene as untimely, see Acree v.
Republic of Iraq, 276 F. Supp. 2d 95 (D.D.C. 2003) (‘‘Acree
II’’), and the United States now appeals.
We hold that the District Court abused its discretion in
finding the United States’ motion to intervene to be untimely
and erred in denying that motion. The United States pos-
sesses weighty foreign policy interests that are clearly threat-
ened by the entry of judgment for appellees in this case.
Although the United States filed its motion after the District
Court had entered its judgment, appellees have asserted no
prejudice arising from the intervention. On the merits of the
United States’ jurisdictional challenge, we hold that the Dis-
trict Court properly exercised jurisdiction in appellees’ law-
suit. Although it presents a close question of statutory
interpretation, we conclude that the disputed language in the
emergency supplemental appropriations act does not encom-
pass the terrorism exception to the FSIA.
We nevertheless conclude that the District Court’s judg-
ment in favor of appellees must be vacated and their lawsuit
dismissed for failure to state a cause of action. The District
Court’s judgment against Iraq rests solely on causes of action
purportedly arising under the terrorism exception and the
Flatow Amendment to the FSIA. Neither appellees’ com-
plaint, nor their submissions to this court, nor the District
Court’s decision in their favor offers any other coherent
alternative causes of action in support of appellees’ claims
against Iraq. Our recent decision in Cicippio-Puleo v. Islam-
ic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004) (‘‘Cicip-
pio’’), makes it plain that the terrorism exception to the FSIA
is merely a jurisdictional provision and does not provide a
cause of action against foreign states. Cicippio also holds
that the Flatow Amendment to the FSIA, which provides a
cause of action against an ‘‘official, employee, or agent of a
foreign state,’’ 28 U.S.C. § 1605 note (2000), does not afford a
cause of action against a foreign state itself. We are there-
fore constrained to vacate the judgment of the District Court
and dismiss appellees’ suit for failure to state a cause of
action.
 4

I. BACKGROUND
A. The POW Lawsuit
The facts in this case are undisputed. While serving in the
Gulf War following the Iraqi invasion of Kuwait, Colonel
Clifford Acree and 16 other American soldiers who are appel-
lees in this case were captured and held as prisoners of war
in Kuwait and the Republic of Iraq between January and
March 1991. On April 4, 2002, these POWs and their close
family members filed a complaint in the District Court
against the Republic of Iraq, the Iraqi Intelligence Service,
and Saddam Hussein, in his official capacity as President of
Iraq, for personal injuries caused to them and their family
members as a result of their treatment by Iraq. In their
complaint, the POW plaintiffs described brutal and inhumane
acts of physical and psychological torture suffered during
their captivity, including severe beatings, starvation, mock
executions, dark and unsanitary living conditions, and other
violent and shocking acts. By these alleged atrocities, the
plaintiffs’ captors created a ‘‘climate [of] humiliation and
degradation,’’ in which the POWs ‘‘liv[ed] in constant fear of
death and torture.’’ Compl. ¶ 5, reprinted in Joint Appendix
(‘‘J.A.’’) 35.
Jurisdiction in the plaintiffs’ lawsuit was based on the
terrorism exception to the Foreign Sovereign Immunities Act,
28 U.S.C. § 1605(a)(7). Under the FSIA, foreign states enjoy
immunity from suit in American courts, unless that immunity
has been waived or abrogated pursuant to an exception
enumerated in the FSIA. See 28 U.S.C. § 1604; see also 28
U.S.C. § 1330(a) (limiting the district courts’ jurisdiction over
suits against foreign states to cases in which the foreign state
is not entitled to immunity under the FSIA). Section
1605(a)(7), added to the FSIA in 1996, creates an exception to
foreign sovereign immunity in civil suits ‘‘in which money
damages are sought against a foreign state for personal
injury or death that was caused by an act of torture’’ or other
terrorist acts. 28 U.S.C. § 1605(a)(7). This exception applies
only if the defendant foreign state was designated as a state
sponsor of terrorism at the time the alleged acts of torture
 5

occurred. See 28 U.S.C. § 1605(a)(7)(A). Pursuant to § 6(j)
of the Export Administration Act, 50 U.S.C. App. § 2405(j)
(1988 & Supp. I 1989), the Republic of Iraq was designated as
a state sponsor of terrorism on September 13, 1990, shortly
after the Iraqi invasion of Kuwait and before the events took
place that formed the basis of the plaintiffs’ claims. See 55
Fed. Reg. 37,793 (Sep. 13, 1990). Iraq was therefore amena-
ble to suit in federal court under the FSIA at the time the
plaintiffs commenced their lawsuit.
Citing several decisions of the District Court, the plain-
tiffs – appellees herein – premised their cause of action on
§ 1605(a)(7), as amended by the so-called ‘‘Flatow Amend-
ment,’’ which was adopted shortly after § 1605(a)(7) was
added to the FSIA in 1996. See Compl. ¶ 596, J.A. 143. The
Flatow Amendment provides that:
[A]n official, employee, or agent of a foreign state
designated as a state sponsor of terrorism TTT
while acting within the scope of his or her office,
employment, or agency shall be liable to a United
States national or the national’s legal representa-
tive for personal injury or death caused by acts of
that official, employee, or agent for which the
courts of the United States may maintain jurisdic-
tion under [§ 1605(a)(7)] for money damages
which may include economic damages, solatium,
pain, and suffering, and punitive damages if the
acts were among those described in [§ 1605(a)(7)].
28 U.S.C. § 1605 note. Appellees alleged that the acts of
torture set forth in their complaint constituted ‘‘traditional
torts of assault, battery and intentional infliction of emotional
distress,’’ Compl. ¶ 597, J.A. 143, and requested compensatory
and punitive damages for each of the POW plaintiffs and their
family members.
Appellees effected proper service of process through diplo-
matic channels, pursuant to 28 U.S.C. § 1608. The Iraqi
defendants failed to appear, and the Clerk of the District
Court accordingly entered default against the defendants on
 6

September 25, 2002. On March 31, 2003, appellees submitted
evidence to support their assertion of liability and claim for
damages. These submissions provided further details re-
garding the factual basis of appellees’ claims and again as-
serted the existence of a cause of action based on
§ 1605(a)(7), as amended by the Flatow Amendment, for
assault, battery, and intentional infliction of emotional dis-
tress. See Pls.’ Proposed Findings of Fact and Conclusions
of Law at 80–90.
On July 7, 2003, the District Court entered final judgment
in favor of appellees. See Acree I, 271 F. Supp. 2d 179. The
District Court held that ‘‘[s]uits brought under § 1605(a)(7)
may be based on conventional common law torts.’’ Id. at 215.
Based on extensive findings of fact regarding the specific
injuries suffered by each plaintiff, the District Court awarded
compensatory and punitive damages to all of the POW plain-
tiffs and their family members totaling over $959 million. Id.
at 224–25.
B. Legal and Military Developments in Iraq
As the proceedings in the District Court were running their
course, the legal and military situation in Iraq was changing
rapidly. In connection with Iraq’s designation as a state
sponsor of terrorism in September 1990, Congress had passed
various statutes imposing sanctions on Iraq and prohibiting
the United States Government and private parties from send-
ing assistance to Iraq or conducting business or trade with
Iraq. Most notably, Congress enacted the Iraq Sanctions Act
of 1990, which condemned the Iraqi invasion of Kuwait and
provided for the maintenance of a trade embargo and eco-
nomic sanctions against Iraq. See Pub. L. No. 101–513,
§§ 586–586J, 104 Stat. 1979, 2047–55 (1990) (codified at 50
U.S.C. § 1701 note (2000)) (‘‘ISA’’). These provisions re-
quired that all assistance, exports, loans, credits, insurance, or
other guarantees be denied to Iraq, with exceptions for
limited humanitarian relief. Section 586F(c) of the ISA also
required full enforcement against Iraq of § 620A of the
Foreign Assistance Act of 1961, which prohibits the grant of
any assistance to any country determined by the Secretary of
 7

State to have ‘‘repeatedly provided support for acts of inter-
national terrorism,’’ Pub. L. No. 87–195, § 620A, as added
Pub. L. No. 94–329, § 303, 90 Stat. 729, 753 (1976) (codified as
amended at 22 U.S.C. § 2371) (‘‘FAA’’). Along with the FAA,
the ISA required that several other enumerated provisions of
law be fully enforced against Iraq, as well as ‘‘all other
provisions of law that impose sanctions against a country
which has repeatedly provided support for acts of internation-
al terrorism.’’ ISA § 586F(c), 104 Stat. 1979, 2051.
Both the Iraq Sanctions Act and the Foreign Assistance
Act provide for rescission of the prohibitions they impose on
aid to Iraq and other designated states, but only after the
President certifies to Congress that there has been a funda-
mental change in the government or policies of the designated
state and that the leadership is no longer supporting acts of
terrorism. See ISA § 586H, 104 Stat. 1979, 2052–53; FAA,
22 U.S.C. § 2371(c) (2000). A similar certification is required
to rescind the Secretary of State’s determination under the
Export Administration Act that Iraq is a country that has
repeatedly provided support for acts of international terror-
ism. See 50 U.S.C. App. § 2405(j)(4) (2000).
Shortly after the commencement of the most recent mili-
tary action against Iraq in 2003, which resulted in the ouster
of Saddam Hussein’s regime, the United States’ policy toward
Iraq changed to reconstructing Iraq’s government and re-
building the country’s infrastructure. In furtherance of these
new objectives, Congress took several steps to eliminate
restrictions on the ability of the United States Government
and private parties to provide assistance to or conduct busi-
ness with Iraq. In April 2003, Congress enacted the Emer-
gency Wartime Supplemental Appropriations Act (‘‘EWSAA’’
or ‘‘Act’’), which appropriated additional funding for military
operations in Iraq, homeland security efforts in the United
States, and bilateral economic assistance to America’s allies in
the war in Iraq. See Pub. L. No. 108–11, 117 Stat. 559 (2003).
The bulk of the $78.5 billion appropriated in this Act was
allocated to national defense activities. In addition, the Act
appropriated nearly $2.5 billion for a new Iraq Relief and
Reconstruction Fund, to be used for the development of
 8

physical and government infrastructure and humanitarian
activities in Iraq. See H.R. CONF. REP. No. 108–76, at 70–72
(2003). The Act provided that assistance to Iraq under the
Iraq Relief and Reconstruction Fund and other aid programs
could be provided ‘‘notwithstanding any other provision of
law.’’ See EWSAA § 1502, 117 Stat. 559, 578.
Of particular relevance to this appeal, § 1503 of the EW-
SAA authorized the President to ‘‘suspend the application of
any provision of the Iraq Sanctions Act of 1990.’’ EWSAA
§ 1503, 117 Stat. 559, 579. Section 1503 ‘‘[p]rovided further,
[t]hat the President may 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. The suspension of these provisions
would permit American assistance to Iraq to proceed without
awaiting completion of the lengthy certification process re-
quired to rescind the Secretary of State’s previous determina-
tion as to Iraq’s status as a sponsor of terrorism.
On May 7, 2003, President Bush carried out the authority
granted in § 1503 of the EWSAA by issuing Presidential
Determination No. 2003–23, which ‘‘ma[d]e inapplicable with
respect to Iraq section 620A of the Foreign Assistance Act of
1961 TTT and any other provision of law that applies to coun-
tries that have supported terrorism.’’ Presidential Determi-
nation No. 2003–23 of May 7, 2003, 68 Fed. Reg. 26,459 (May
16, 2003). In a message to Congress delivered on May 22,
2003, President Bush explained the need to protect Iraqi
assets from attachment, judgment, or other judicial process,
and stated his view that the May 7 Determination applied to,
inter alia, the terrorism exception to the FSIA, 28 U.S.C.
§ 1605(a)(7). See Message to the Congress Reporting the
Declaration of a National Emergency With Respect to the
Development Fund for Iraq, 39 WEEKLY COMP. PRES. DOC. 647,
647–48 (May 22, 2003).
C. The United States’ Motion to Intervene
On July 21, 2003, two weeks after the District Court
entered judgment for appellees, the United States moved to
intervene for the sole purpose of contesting the subject
 9

matter jurisdiction of the District Court. This challenge
rested on legal developments that had occurred in the wake
of the United States’ invasion of Iraq in March 2003. The
United States argued that § 1605(a)(7) is a ‘‘provision of law
that applies to countries that have supported terrorism’’
within the meaning of § 1503 of the EWSAA, as implemented
by the May 7 Presidential Determination, and was therefore
made inapplicable to Iraq by operation of those provisions.
The District Court, the Government argued, was therefore
divested of jurisdiction over appellees’ lawsuit as of May 7,
2003, two months prior to the entry of judgment against the
Iraqi defendants.
On August 6, 2003, the District Court denied the Govern-
ment’s motion to intervene as untimely. See Acree II, 276 F.
Supp. 2d at 98–99. The District Court noted that the United
States had waited 75 days after the Presidential Determina-
tion to file its motion, and the court was particularly reluctant
to permit the Government to intervene after appellees’ case
had proceeded to final judgment. See id. The District Court
further held that, even if the United States’ motion was not
untimely, appellees’ lawsuit did not threaten to impair any
cognizable interest of the United States and that allowing the
Government to intervene at that late stage would cause undue
delay and prejudice to the parties. See id. at 99–102. Final-
ly, the District Court considered its own subject matter
jurisdiction and concluded that it retained jurisdiction under
the FSIA, despite the EWSAA and the Presidential Determi-
nation. See id. at 100–01. On August 22, 2003, the United
States filed this appeal of the District Court’s decision.
D. Related Developments
Just before the United States moved to intervene, appellees
filed a second suit in the District Court against the Secretary
of the Treasury, seeking to satisfy their newly won judgment
against Iraq by attaching funds from seized Iraqi bank ac-
counts, pursuant to the Terrorism Risk Insurance Act of 2002
(‘‘TRIA’’). See Acree v. Snow, 276 F. Supp. 2d 31 (D.D.C.
2003). Section 201(a) of the TRIA provides that a person
 10

who has obtained a judgment against a foreign state designat-
ed as a state sponsor of terrorism may seek to attach the
blocked assets of that state in satisfaction of an award of
compensatory damages based on an act of terrorism. See
Pub. L. No. 107–297, § 201, 116 Stat. 2322, 2337 (2002)
(codified at 28 U.S.C. § 1610 note). Although appellees ini-
tially prevailed in obtaining a temporary restraining order,
precluding the Secretary of the Treasury from spending down
the United States’ seized Iraqi assets, the District Court
ultimately awarded summary judgment to the United States.
See Acree v. Snow, 276 F. Supp. 2d at 33. The District Court
held that § 1503 of the EWSAA, as implemented by the May
7 Determination, made the TRIA inapplicable to Iraq and
therefore unavailable to appellees as a mechanism for satisfy-
ing their judgment. See id. at 32–33.
This court affirmed the decision of the District Court by
judgment. See Acree v. Snow, No. 03–5195 (D.C. Cir. Oct. 7,
2003). The court did not address the applicability or effect of
the EWSAA and the Presidential Determination, however.
Rather, the court adopted the reasoning of the Second Cir-
cuit’s decision in Smith v. Federal Reserve Bank of New
York, 346 F.3d 264 (2d Cir. 2003). In that case, the Second
Circuit held that plaintiffs proceeding under the TRIA to
attach seized Iraqi assets in satisfaction of a judgment were
precluded from doing so because the President had previously
confiscated the blocked assets and vested title in them in the
United States Department of the Treasury, thereby render-
ing those funds insusceptible to execution or attachment. See
id. at 272 (discussing Exec. Order No. 13,290 of Mar. 20, 2003,
68 Fed. Reg. 14,307 (Mar. 24, 2003)). The Second Circuit –
and by extension this court – therefore did not reach the issue
of whether § 1503 or the Presidential Determination made
the TRIA inapplicable to Iraq and expressed no views on the
scope or validity of those provisions. See id.
In another important development, this court issued its
decision in Cicippio, 353 F.3d 1024, three months before oral
argument in this case. That case presented the question
whether 28 U.S.C. § 1605(a)(7) or the Flatow Amendment, 28
U.S.C. § 1605 note, created a cause of action against a foreign
 11

state. Several decisions in the District Court had held or
assumed that these provisions did create a cause of action
against foreign states. See Cicippio, 353 F.3d at 1032 (citing
cases). The court of appeals had not previously affirmed any
of these judgments, however, or otherwise squarely confront-
ed the issue. See Roeder v. Islamic Republic of Iran, 333
F.3d 228, 234 n.3 (D.C. Cir. 2003) (noting that it is ‘‘far from
clear’’ whether a plaintiff has a cause of action against a
foreign state under the FSIA, but resolving the appeal on
other grounds); Bettis v. Islamic Republic of Iran, 315 F.3d
325, 333 (D.C. Cir. 2003) (raising but not resolving the
question of whether the FSIA creates a cause of action
against foreign states); Price v. Socialist People’s Libyan
Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002) (‘‘There is
a question TTT whether the FSIA creates a federal cause of
action for torture and hostage taking against foreign states.’’)
(emphasis in original).
In Cicippio, this court definitively ruled that ‘‘neither 28
U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two
considered in tandem, creates a private right of action against
a foreign government.’’ 353 F.3d at 1033. We held that
§ 1605(a)(7) merely waived the immunity of foreign states,
without creating a cause of action against them, and that the
Flatow Amendment provides a cause of action only against
officials, employees, and agents of a foreign state, not against
the foreign state itself. See id. We further held that ‘‘inso-
far as the Flatow Amendment creates a private right of action
against officials, employees, and agents of foreign states, the
cause of action is limited to claims against those officials in
their individual, as opposed to their official, capacities.’’ Id.
at 1034. Because of its clear relevance to the instant case, in
which the only named defendants are the Republic of Iraq,
the Iraqi Intelligence Service, and Saddam Hussein in his
official capacity as President of Iraq, we ordered the parties
here to consider the implications of our ruling in Cicippio for
appellees’ suit and to be prepared to discuss the issue at oral
argument. See Acree v. Republic of Iraq, No. 03–5232 (D.C.
Cir. Apr. 5, 2004).
 12

II. ANALYSIS
This case requires us to consider whether § 1503 of the
EWSAA, as implemented by the May 7 Presidential Determi-
nation, makes the terrorism exception to the FSIA inapplica-
ble with respect to Iraq. While it is a close question, we
agree with appellees that 28 U.S.C. § 1605(a)(7) is not a
provision of law that falls within the scope of § 1503. The
District Court therefore properly exercised jurisdiction over
appellees’ lawsuit under the FSIA. Having reached this
conclusion, we need not address the additional issues debated
by the parties concerning the retroactive scope and constitu-
tional validity of § 1503 and the Presidential Determination.
Although we find that the District Court had jurisdiction in
this matter, the judgment for appellees must nonetheless be
vacated. This court’s recent decision in Cicippio makes it
clear that plaintiffs cannot state a cause of action against a
foreign state under § 1605(a)(7) or the Flatow Amendment,
the sole bases for appellees’ action in this case. Although
Cicippio was decided after the District Court’s judgment in
this case, it is nonetheless the controlling precedent to which
we must look in determining whether appellees have stated a
cause of action. Because appellees’ action fails under Cicip-
pio, we conclude that the District Court’s judgment in favor
of appellees must be vacated and their suit dismissed for
failure to state a cause of action.
Before reaching any of these merits issues, however, we
must consider the propriety of the District Court’s order
denying the United States’ motion to intervene. For, in any
appeal, ‘‘‘the first and fundamental question is that of jurisdic-
tion, first, of [the appellate] court, and then of the court from
which the record comes.’’’ Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94 (1998) (quoting Great S. Fire Proof
Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)). If the United
States were not properly a party to this case, then it would
have no right to appeal the District Court’s judgment, see
Marino v. Ortiz, 484 U.S. 301, 304 (1988), and we would be
required to dismiss this case without passing upon its merits
for lack of a proper appellant.
 13

A. The Motion to Intervene
The District Court’s denial of a motion to intervene is an
appealable final order. See Fund for Animals, Inc. v. Nor-
ton, 322 F.3d 728, 732 (D.C. Cir. 2003). Our standard of
review in such an appeal is mixed. We review pure questions
of law de novo, findings of fact for clear error, and discretion-
ary issues such as timeliness for abuse of discretion. See id.
In this case, we find that the District Court abused its
discretion in finding the United States’ motion to be untimely
and erred in denying the motion.
Under Rule 24 of the Federal Rules of Civil Procedure, a
prospective intervenor must be permitted to intervene as of
right if the applicant claims an interest relating to the subject
matter of the case, if the disposition of the case stands to
impair that interest, and if the applicant’s interest is not
adequately represented by the existing parties. See FED. R.
CIV. P. 24(a). Alternatively, an applicant may be permitted to
intervene if his claim shares a question of law or fact in
common with the underlying action and if the intervention
will not unduly delay or prejudice the rights of the original
parties. See FED. R. CIV. P. 24(b). Under either test, the
prospective intervenor’s motion must be ‘‘timely.’’ See FED.
R. CIV. P. 24(a), (b). Evaluation of the timeliness of a motion
to intervene lies within the sound discretion of the District
Court. See Fund for Animals, 322 F.3d at 732 (citing Mass.
Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776,
779 (D.C. Cir. 1997) (‘‘MSL’’)).
Courts are generally reluctant to permit intervention after
a suit has proceeded to final judgment, particularly where the
applicant had the opportunity to intervene prior to judgment.
See Associated Builders & Contractors, Inc. v. Herman, 166
F.3d 1248, 1257 (D.C. Cir. 1999); MSL, 118 F.3d at 783 n.5;
see also 7C CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE
AND PROCEDURE § 1916 (2d ed. 1986) (‘‘WRIGHT & MILLER’’).
The timeliness of a motion to intervene must be considered in
light of all the circumstances of the case, however, see WRIGHT
& MILLER § 1916, including the purpose for which interven-
tion is sought, the need for intervention as a means of
 14

preserving the applicant’s rights, and the possibility of preju-
dice to the existing parties, see Smoke v. Norton, 252 F.3d
468, 471 (D.C. Cir. 2001) (quoting United States v. AT&T, 642
F.2d 1285, 1295 (D.C. Cir. 1980)). Post-judgment interven-
tion is often permitted, therefore, where the prospective
intervenor’s interest did not arise until the appellate stage or
where intervention would not unduly prejudice the existing
parties. See WRIGHT & MILLER § 1916. In particular, courts
often grant post-judgment motions to intervene where no
existing party chooses to appeal the judgment of the trial
court. See id.
In Smoke, we reversed the District Court’s denial of a post-
judgment motion to intervene where the existing party indi-
cated it might not bring an appeal. See 252 F.3d at 470–71.
In doing so, we noted that the would-be intervenor’s interests,
which had been consonant with those of the existing party,
were no longer adequately represented by that party’s litiga-
tion of the case. See id. at 471. In those circumstances, we
found the post-judgment motion to intervene for the purpose
of prosecuting an appeal to be timely, because ‘‘‘the potential
inadequacy of representation came into existence only at the
appellate stage.’’’ Id. (quoting Dimond v. District of Colum-
bia, 792 F.2d 179, 193 (D.C. Cir. 1986)); see also United
Airlines, Inc. v. McDonald, 432 U.S. 385, 395 (1977) (holding
that the trial court erred in denying as untimely a post-
judgment motion to intervene filed promptly after judgment
and noting that this holding was ‘‘consistent with several
decisions of the federal courts permitting post-judgment in-
tervention for the purpose of appeal’’); Dimond, 792 F.2d at
193–94 (reversing the District Court’s denial of post-judgment
intervention where the intervenor sought to participate only
at the appellate stage).
In this case, the District Court denied the United States’
motion to intervene largely because it came after the court
had already entered judgment in the case. See Acree II, 276
F. Supp. 2d at 98–99. The District Court noted that approxi-
mately two months had intervened between the May 7 Presi-
dential Determination and the entry of final judgment for
appellees, during which time the United States could have
filed its motion. See id. However, in reaching this judg-
 15

ment, the District Court failed to consider adequately the
unique circumstances of this case.
In particular, the District Court failed to weigh the impor-
tance of this case to the United States’ foreign policy inter-
ests and the purposes for which the Government sought to
intervene. This is not a case in which the United States was
simply seeking to weigh in on the merits. Rather, the
Government’s sole purpose in intervening was to raise a
highly tenable challenge to the District Court’s subject mat-
ter jurisdiction in a case with undeniable impact on the
Government’s conduct of foreign policy and to preserve that
issue for appellate review.
In the face of these weighty interests, appellees assert no
prejudice arising from the United States’ intervention. Nor
could they, given the District Court’s independent obligation
to assure itself of its own jurisdiction. The only result
achieved by denial of the motion to intervene in this case is
the effective insulation of the District Court’s exercise of
jurisdiction from all appellate review. In these circum-
stances, we find that the District Court abused its discretion
in denying the United States’ motion as untimely. See Unit-
ed Airlines, 432 U.S. at 395–96; Smoke, 252 F.3d at 470–71.
In light of its clear foreign policy interests, the United States
was entitled to intervene as of right pursuant to Rule 24. See
Roeder, 333 F.3d at 233 (permitting the United States to
intervene in a case implicating foreign policy concerns). We
therefore reverse the decision of the District Court denying
the United States’ motion to intervene and turn to the merits
of the Government’s jurisdictional challenge.
B. Subject Matter Jurisdiction Under the FSIA
It is uncontested that at the time appellees commenced
their lawsuit in April 2002, the District Court had jurisdiction
over the case under § 1605(a)(7), because appellees sought
damages for injuries arising from alleged acts of torture that
occurred while Iraq was designated as a state sponsor of
terrorism. The United States now argues that § 1503 of the
EWSAA, as implemented by the May 7 Presidential Determi-
 16

nation, made § 1605(a)(7) inapplicable to Iraq and thereby
divested the District Court of its jurisdiction in appellees’
case. Appellees respond that § 1605(a)(7) is not a provision
of law that falls within the scope of § 1503 of the EWSAA.
Appellees alternatively contend that § 1503 and the Presiden-
tial Determination cannot be applied against them in this case
without resulting in impermissible retroactive effects or vio-
lating constitutional principles of separation of powers. We
review the District Court’s exercise of jurisdiction de novo.
See Empagran S.A. v. F. Hoffman–LaRoche, Ltd., 315 F.3d
338, 343 (D.C. Cir. 2003).
In our view, while it is an exceedingly close question, the
language of § 1503 of the EWSAA does not embrace the
terrorism exception to the FSIA. We conclude that § 1503,
read in the context of the EWSAA as a whole and its
legislative history, is aimed at legal provisions that present
obstacles to assistance and funding for the new Iraqi Govern-
ment and was not intended to alter the jurisdiction of the
federal courts under the FSIA.
This issue presents us with a basic question of statutory
interpretation. We therefore begin with the language of the
EWSAA. See Holloway v. United States, 526 U.S. 1, 6
(1999). Section 1503 provides, in its entirety:
The President may suspend the application of any
provision of the Iraq Sanctions Act of 1990: Pro-
vided, That nothing in this section shall affect the
applicability of the Iran–Iraq Arms Non–Prolifer-
ation Act of 1992, except that such Act shall not
apply to humanitarian assistance and supplies:
Provided further, That the President may 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: Provided further, That
military equipment, as defined by title XVI, sec-
tion 1608(1)(A) of Public Law 102–484, shall not be
exported under the authority of this section: Pro-
vided further, That section 307 of the Foreign
 17

Assistance Act of 1961 shall not apply with respect
to programs of international organizations for
Iraq: Provided further, That provisions of law
that direct the United States Government to vote
against or oppose loans or other uses of funds,
including for financial or technical assistance, in
international financial institutions for Iraq shall
not be construed as applying to Iraq: Provided
further, That the President shall submit a notifica-
tion 5 days prior to exercising any of the authori-
ties described in this section to the Committee on
Appropriations of each House of the Congress, the
Committee on Foreign Relations of the Senate,
and the Committee on International Relations of
the House of Representatives: Provided further,
That not more than 60 days after enactment of
this Act and every 90 days thereafter the Presi-
dent shall submit a report to the Committee on
Appropriations of each House of the Congress, the
Committee on Foreign Relations of the Senate,
and the Committee on International Relations of
the House of Representatives containing a sum-
mary of all licenses approved for export to Iraq of
any item on the Commerce Control List contained
in the Export Administration Regulations, includ-
ing identification of end users of such items: Pro-
vided 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 specifical-
ly amends, repeals or otherwise makes inapplica-
ble the authorities of this section, whichever oc-
curs first.
EWSAA § 1503, 117 Stat. 559, 579 (citations omitted) (em-
phasis added). The controversy in this case concerns the
second proviso of § 1503, authorizing 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.
 18

(emphasis added). The United States argues that this lan-
guage embraces the authority to make § 1605(a)(7) inapplica-
ble to Iraq, and that the President carried out that authority
in the May 7 Presidential Determination.
The logic of this interpretation is straightforward: Section
1605(a)(7) creates an exception to the sovereign immunity
normally enjoyed by foreign states in American courts for
suits based on acts of torture or other terrorist acts. This
exception applies only if the defendant foreign state was
designated as a sponsor of terrorism at the time the acts took
place. Section 1605(a)(7) is thus a ‘‘provision of law that
applies to countries that have supported terrorism.’’ The
EWSAA authorizes the President to make such provisions
inapplicable to Iraq, which authority the President exercised
in the May 7 Determination. Section 1605(a)(7) therefore no
longer applies to Iraq and cannot provide a basis for jurisdic-
tion in appellees’ case. Quod erat demonstrandum.
The difficulty with this view is that it focuses exclusively on
the meaning of one clause of § 1503, divorced from all that
surrounds it. This approach violates ‘‘the cardinal rule that a
statute is to be read as a whole, since the meaning of
statutory language, plain or not, depends on context.’’ King
v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (citations
omitted). In interpreting any statute, we must ‘‘‘consider not
only the bare meaning’ of the critical word or phrase ‘but also
its placement and purpose in the statutory scheme.’’’ Hollo-
way, 526 U.S. at 6 (quoting Bailey v. United States, 516 U.S.
137, 145 (1995)).
Traditional interpretive canons likewise counsel against a
reading of the second proviso of § 1503 that ignores the
context of § 1503 and the EWSAA as a whole. In particular,
the canons of noscitur a sociis and ejusdem generis remind
us that ‘‘[w]here general words follow specific words in a
statutory enumeration, the general words are construed to
embrace only objects similar in nature to those objects enu-
merated by the preceding specific words.’’ Wash. State Dep’t
of Soc. & Health Servs. v. Guardianship Estate of Keffeler,
537 U.S. 371, 384 (2003) (internal quotation marks and cita-
 19

tions omitted). In addition, where statutory language is
phrased as a proviso, the presumption is that its scope is
confined to that of the principal clause to which it is attached.
See United States v. Morrow, 266 U.S. 531, 534–35 (1925).
Applying the foregoing principles, we conclude that the
scope of § 1503 is narrower than the Government suggests.
The primary function of the EWSAA was to provide emer-
gency appropriations in support of the United States’ military
operations in Iraq. The Act also provided additional funding
for homeland security activities in the United States. Chap-
ter 5 of the Act, entitled ‘‘Bilateral Economic Assistance,’’
appropriated funds for a variety of assistance programs to
Iraq and other American allies. See EWSAA, ch. 5, 117 Stat.
559, 572–81. In addition to the Iraq Relief and Reconstruc-
tion Fund, these programs included the Child Survival and
Health Programs Fund, International Disaster Assistance,
the Economic Support Fund (providing assistance to the
governments of Jordan, Egypt, Turkey, the Philippines, and
Afghanistan), Loan Guarantees to Israel, the Emergency
Refugee and Migration Assistance Fund, peacekeeping opera-
tions, and similar activities. Thus, each program funded in
Chapter 5 of the EWSAA addresses matters of bilateral
economic assistance to Iraq and other countries. The United
States points to nothing in this portion of the Act – or
elsewhere in the EWSAA, for that matter – that addresses
the jurisdiction of the federal courts.
Section 1503 is one of several ‘‘general provisions’’ within
Chapter 5 of the EWSAA. See EWSAA §§ 1501–1506, 117
Stat. 559, 578–81. These ‘‘general provisions’’ all supply
specific instructions or impose conditions upon the outlays of
money appropriated throughout the Chapter. For example,
§ 1501 provides that the President has authority to transfer
money between the several programs funded in the Chapter,
upon proper notification to Congress. Section 1502 provides
that ‘‘[a]ssistance or other financing under this chapter may
be provided for Iraq notwithstanding any other provision of
law,’’ subject to certain provisos. Section 1504 authorizes the
President to export certain nonlethal military equipment to
Iraq, notwithstanding any other provision of law, subject to
 20

certain conditions and reporting requirements. Section 1503
thus finds itself situated among several other provisions that
govern the distribution of assistance to Iraq within the con-
text of ongoing military operations and against a backdrop of
legal obstacles that would otherwise prohibit such assistance.
Section 1503 itself authorizes the President to suspend the
application of any provision of the Iraq Sanctions Act of 1990,
subject to eight provisos. See EWSAA § 1503, 117 Stat. 559,
579. Three of the provisos impose notification or reporting
requirements and provide for expiration of the suspension
authority granted in § 1503. The remaining provisos are
each responsive to a specific aspect of the ISA or other
statutes that are implicated by the suspension authority
granted in § 1503, thereby resolving potential ambiguities
that may arise in the statutory landscape as a result of the
suspension of the ISA. Thus, the first proviso, stating that
nothing in § 1503 shall affect the applicability of the Iran–
Iraq Arms Non–Proliferation Act of 1992, reflects the fact
that portions of the Non–Proliferation Act incorporate the
ISA by reference and are to remain in effect despite suspen-
sion of the ISA. See Iran–Iraq Arms Non–Proliferation Act
of 1992, Pub. L. No. 102–484, §§ 1601–08, 106 Stat. 2315,
2571–75 (codified at 50 U.S.C. § 1701 note (2000)). Similarly,
the fifth proviso states that ‘‘provisions of law that direct the
United States Government to vote against or oppose loans or
other uses of funds, including for financial or technical assis-
tance, in international financial institutions for Iraq shall not
be construed as applying to Iraq.’’ This language responds in
part to § 586G(a)(5) of the ISA, which requires the United
States to oppose any loan or financial or technical assistance
to Iraq by international financial institutions, pursuant to
other provisions of law incorporated into the ISA. See ISA
§ 586G(a)(5), 104 Stat. 1979, 2052. This fifth proviso thus
makes clear that the President may suspend not only the
ISA, but also those provisions of law that are incorporated by
reference into the ISA’s prohibition on American support for
assistance to Iraq from international financial institutions.
The remaining provisos are similarly tied to specific features
 21

of the ISA and the other statutes with which the ISA
interacts.
The second proviso of § 1503 – which lies at the heart of
the controversy in the instant case – provides that ‘‘the
President may 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.’’ Just like the other provisos in § 1503, this
language is responsive to a particular section of the ISA. As
we have seen, the ISA required that certain enumerated
provisions of law, 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 terrorism’’ be fully enforced
against Iraq. See ISA § 586F(c), 104 Stat. 1979, 2051. The
second proviso in § 1503 thus makes clear that the authority
in § 1503 to suspend the ISA includes the authority to make
inapplicable to Iraq § 620A of the FAA and those additional
provisions of law incorporated into § 586F(c) of the ISA.
As previously noted, § 620A of the FAA prohibits the grant
of assistance to any country determined by the Secretary of
State to have ‘‘repeatedly provided support for acts of inter-
national terrorism.’’ 22 U.S.C. § 2371(a). A survey of the
other provisions enumerated in § 586F(c) of the ISA indicates
that all of those provisions deal with restrictions on assistance
to state sponsors of terrorism. These provisions include § 40
of the Arms Export Control Act, 22 U.S.C. § 2780 (2000);
§§ 555 and 556 of the Foreign Operations, Export Financing,
and Related Programs Appropriations Act of 1991, Pub. L.
No. 101–513, §§ 555–556, 104 Stat. 1979, 2021–22 (1990); and
§ 555 of the International Security and Development Cooper-
ation Act of 1985, Pub. L. No. 99–83, § 555, 99 Stat. 190, 227.
Each of these provisions calls for the imposition of economic
sanctions on countries that are determined to have supported
international terrorism, including restrictions on exports, avi-
ation boycotts, and prohibitions on loans, credits, or other
financial assistance. Read within this context, the reference
in the ISA to ‘‘all other provisions of law that impose sanc-
tions against a country which has repeatedly provided sup-
 22

port for acts of international terrorism’’ is best read to denote
provisions of law that call for economic sanctions and prohibit
grants of assistance to state sponsors of terrorism.
To recapitulate, the meaning of the disputed language in
§ 1503, like each of the other substantive provisos in that
section, is thus illuminated by consideration of the corre-
sponding provisions of the ISA. See Morrow, 266 U.S. at
534–35 (‘‘The general office of a proviso is to except some-
thing from the enacting clause, or to qualify and restrain its
generality and prevent misinterpretation. Its grammatical
and logical scope is confined to the subject-matter of the
principal clause.’’) (citations omitted). The reference in
§ 586F(c) of the ISA to § 620A of the FAA and ‘‘all other
provisions of law’’ that impose sanctions on state sponsors of
terrorism appears clearly to encompass laws which, like the
FAA and the other enumerated provisions, impose obstacles
to assistance to designated countries. None of these provi-
sions remotely suggests any relation to the jurisdiction of the
federal courts. Thus, when read in juxtaposition with this
portion of the ISA, the second proviso of § 1503 is more
persuasively interpreted as sharing a similar scope. That is,
it authorizes the President to make inapplicable with respect
to Iraq those provisions of law that impose economic sanc-
tions on Iraq or that present legal obstacles to the provision
of assistance to the Iraqi Government. This interpretation
reflects a central function of Chapter 5 of the EWSAA, which
is to provide for relief and reconstruction in post-war Iraq.
Although sparse, the legislative history of § 1503 of the
EWSAA likewise supports our interpretation of the disputed
language in § 1503. The EWSAA began as a request from
the President to Congress for emergency supplemental ap-
propriations to support Department of Defense operations in
Iraq and for other purposes. See Letter from President
George W. Bush to Rep. Dennis Hastert, Speaker of the
House of Representatives (Mar. 25, 2003), reprinted in H.R.
DOC. No. 108–55, at 1 (2003). The portion of the President’s
request dealing with bilateral economic assistance included
language repealing the Iraq Sanctions Act of 1990, subject to
 23

the proviso ‘‘[t]hat the President may make inapplicable with
respect to Iraq section 620A of the Foreign Assistance Act of
1961, as amended, or other provision of law that applies to
countries that have supported terrorism.’’ H.R. DOC. No.
108–55, at 24. The request explained that this language
would ‘‘authorize the President to make inapplicable with
respect to Iraq section 620A, and section 620G, and section
307 of the Foreign Assistance Act.’’ Id.
One week after the President issued this request for sup-
plemental appropriations, the Committees on Appropriations
of the Senate and House reported bills that each contained
language similar to that proposed by the President. The
Senate version, reported on April 1, 2003, repeated exactly
the language of the President’s request, repealing the ISA
and authorizing the President to ‘‘make inapplicable with
respect to Iraq section 620A of the Foreign Assistance Act of
1961, as amended, or other provision of law that applies to
countries that have supported terrorism.’’ S. 762, 108th
Cong. § 503 (2003). The accompanying committee report
explained that this section of the Senate bill ‘‘provide[d] the
request for the repeal of the Iraqi Sanctions Act of 1990 [sic],
and other limitations on assistance for Iraq.’’ S. REP. No.
108–33, at 21 (2003) (emphasis added). The House version,
reported on April 2, 2003, included the same language that
became § 1503 of the EWSAA. See H.R. 1559, 108th Cong.
§ 1402 (2003). The committee report accompanying the
House bill explained that this language was ‘‘similar to the
authority requested by the President that would repeal the
Iraq Sanctions Act of 1990 and authorize the President to
make inapplicable with respect to Iraq section 620A and
section 307 of the Foreign Assistance Act.’’ H.R. REP. No.
108–55, at 30 (2003).
The Conference Committee agreed to the language pro-
posed in the House version of the supplemental appropriation.
See H.R. CONF. REP. No. 108–76, at 21 (2003). The conferees
reported that § 1503 of the conference agreement ‘‘would
make inapplicable the Iraq Sanctions Act of 1990 and author-
ize the President to make inapplicable with respect to Iraq
section 620A and section 307 of the Foreign Assistance Act.’’
 24

Id. at 76. The language of the conference agreement was
passed by both houses on April 12, 2003, without further
amendment to § 1503, and signed by the President on April
16, 2003.
While not conclusive, this legislative history bolsters our
conclusion as to the scope of § 1503. There is no reference in
the legislative history to the FSIA in particular or to federal
court jurisdiction in general. Rather, the legislative history
of the EWSAA reflects an underlying legislative concern with
eliminating statutory restrictions on aid and exports needed
for the reconstruction of Iraq. This concern is easily under-
stood. Any effort by the United States Government or
private businesses in the United States to provide assistance
or conduct business with the new Iraqi regime, in the absence
of § 1503, would be barred by numerous provisions of law
until such time as the President and the Secretary of State
could make the necessary certifications to Congress to re-
move Iraq’s designation as a state sponsor of terrorism. See,
e.g., 22 U.S.C. § 2371(c) (rescission provisions of the Foreign
Assistance Act of 1961); 50 U.S.C. App. § 2405(j)(4) (rescis-
sion provisions of the Export Administration Act). Section
1503 permits assistance and reconstruction efforts to proceed
without waiting for this lengthy and complex certification
process to run its course by setting aside the ISA and ‘‘other
limitations on assistance for Iraq,’’ S. REP. No. 108–33, at 21
(2003). This legislative history, along with the other provi-
sions in § 1503, the EWSAA as a whole, and the complex web
of economic sanctions and prohibitions on assistance that
previously applied to Iraq thus supports our interpretation
that the general reference in § 1503 to ‘‘other provision[s] of
law that appl[y] to countries that have supported terrorism’’
embraces only those provisions of law that constitute legal
restrictions on assistance to and trade with Iraq.
Because we find, as a matter of statutory interpretation,
that § 1503 does not make the terrorism exception to the
FSIA inapplicable to Iraq, we need not consider whether
§ 1503 operates retroactively to appellees’ pending lawsuit.
Nevertheless, comparison of the temporal scope of 28 U.S.C.
§ 1605(a)(7) with that of § 1503 lends further support to our
 25

resolution of the statutory interpretation issue. The lan-
guage of § 1503 is broad, general, and unclear. Yet, the
United States seeks to employ it to supersede the much more
precise language of § 1605(a)(7), which already provides in
quite specific terms for the prospective restoration of sover-
eign immunity once a country is decertified as a sponsor of
terrorism. Specifically, § 1605(a)(7) provides that the terror-
ism exception to foreign sovereign immunity arises only when
a defendant country is designated as a sponsor of terrorism
‘‘at the time the act occurred, unless later so designated as a
result of such act.’’ 28 U.S.C. § 1605(a)(7)(A). Thus, the
FSIA specifically provides that when a country, once desig-
nated as a state sponsor of terrorism, is subsequently re-
stored to good standing, that country is still amenable to suit
for acts that took place prior to the restoration of its sover-
eign immunity. As the United States would have it, however,
waiver of § 1605(a)(7) in the case of Iraq pursuant to § 1503
would restore Iraq’s immunity even for acts that occurred
while Iraq was still considered a sponsor of terrorism.
This perplexing result appears even more bizarre when the
sunset provisions of § 1503 are taken into account. The final
proviso in § 1503 states 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, repeals or otherwise makes
inapplicable the authorities of this section, whichever occurs
first.’’ EWSAA § 1503, 117 Stat. 559, 579. If the United
States were correct in its interpretation of § 1503, then this
sunset provision would mean that, absent intervening events,
§ 1605(a)(7) would once again be available as a basis of
jurisdiction after September 30, 2004. At such time, the
District Court would properly have jurisdiction over a suit
against Iraq based on events that occurred while Iraq was
designated as a state sponsor of terrorism. It makes little
sense to say that between the date of the May 7 Presidential
Determination and the date of expiration of the authorities
conferred in § 1503, there is no federal court jurisdiction for
suits against Iraq, but that after that period elapses, such
suits will again be available. Yet, this is precisely the result
 26

that follows if one imposes the unwieldy language of § 1503
upon the otherwise careful and precise scheme established
under the FSIA. Thus, considerations of temporal scope
weigh in favor of an interpretation of § 1503 that avoids this
conflict.
The United States contends that, even if the disputed
clause in § 1503 must be construed to reach only those
provisions of law that are similar in nature to the legal
restrictions on assistance to Iraq that are enumerated else-
where in § 1503, the terrorism exception to the FSIA still
falls within the scope of provisions the President is authorized
to make inapplicable to Iraq. Specifically, the United States
points out that § 1605(a)(7) shares a ‘‘criterion of similarity’’
with the other provisions mentioned in § 1503, Reply Br. at
17, namely, that it is a provision of law that imposes penalties
on foreign nations as a result of their designation as sponsors
of terrorism. This contention has some attraction, because
§ 1605(a)(7) arguably poses a threat of a sort to American
reconstruction efforts in Iraq by providing jurisdiction in
American courts for cases seeking huge liability judgments
against the Iraqi Government. Under this view, it is plausi-
ble to suggest that § 1503 encompasses the terrorism excep-
tion to the FSIA.
It is true that section 1605(a)(7) is not totally dissimilar to
laws imposing economic sanctions or prohibitions on assis-
tance and trade, in that it penalizes countries designated as
supporters of terrorism. However, even if the FAA and the
other economic penalties discussed above could be said to
share this single common attribute with § 1605(a)(7), the
FSIA’s rules of federal court jurisdiction would still be sever-
al steps removed from those other provisions, which are all
much more closely analogous to one another. Because
§ 1503, the EWSAA as a whole, and the relevant legislative
history all reflect an overriding concern for economic assis-
tance, trade, and reconstruction in Iraq, we find that this
context counsels against a reading of § 1503 that stretches so
far as to reach a law, like the FSIA, that is largely dissimilar
to all of the ‘‘look-alike’’ provisions affected by § 1503.
 27

We conclude that when § 1503 is read in the context of the
other provisions of the EWSAA and its legislative history, as
it must be, that provision is best understood as applying only
to legal restrictions on assistance and funding for the new
Iraqi Government. There is nothing in the language of
§ 1503, the EWSAA as a whole, or its legislative history to
suggest that Congress intended by this statute to alter the
jurisdiction of the federal courts under the FSIA. We ac-
knowledge that this is a close question. We nevertheless
conclude that § 1503 was not intended to apply to
§ 1605(a)(7). The scope of the May 7 Presidential Determi-
nation is immaterial, because it cannot exceed the authority
granted in § 1503. We therefore affirm the District Court’s
exercise of jurisdiction over appellees’ claims under 28 U.S.C.
§ 1605(a)(7).
C. Cause of Action
Having concluded that jurisdiction in this case properly lies
in the District Court, we arrive at the clear conflict between
the District Court’s judgment in favor of appellees and this
court’s recent holding in Cicippio-Puleo v. Islamic Republic
of Iran, 353 F.3d 1024. In Cicippio, we held that neither
§ 1605(a)(7) nor the Flatow Amendment, nor the two consid-
ered together, supplies a cause of action against foreign
states. See 353 F.3d at 1033. In the instant case, the
District Court predicated its finding of liability on precisely
those provisions, and appellees point to no alternative cause
of action. We therefore conclude that appellees have failed to
state a cause of action.
Because of the default of the Iraqi defendants, no party
questioned the existence of appellees’ cause of action during
the proceedings in the District Court. Nor did the United
States raise this issue in its motion to intervene. Neverthe-
less, no party contests this court’s discretion to reach this
issue on our own motion in light of the intervening change in
law.
Appellees rightly contend that non-jurisdictional defenses
such as the failure to state a cause of action are waivable and
that courts generally do not permit parties to raise such
 28

issues for the first time on appeal. The right of a party to
advance this objection is not coextensive with the discretion
of the court to consider the issue, however. As we have held,
‘‘[c]ourts of appeals are not rigidly limited to issues raised in
the tribunal of first instance; they have a fair measure of
discretion to determine what questions to consider and re-
solve for the first time on appeal.’’ Roosevelt v. E.I. Du Pont
de Nemours & Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992)
(addressing the existence of a cause of action for the first
time on appeal in light of a relevant intervening Supreme
Court decision). Thus, while we will ordinarily refrain from
reaching non-jurisdictional questions that have not been
raised by the parties or passed on by the District Court, we
may do so on our own motion in ‘‘exceptional circumstances.’’
Id. (‘‘Qualifying circumstances include TTT an intervening
change in the lawTTTT’’).
Our intervening decision in Cicippio, which definitively
resolved a previously open question of law that we find to be
dispositive in appellees’ case, surely qualifies as the type of
exceptional circumstance that justifies our exercise of discre-
tion. See id. at 419. The issue before us is ‘‘purely one of
law important in the administration of federal justice, and
resolution of the issue does not depend on any additional facts
not considered by the district court.’’ Id. at 419 n.5. The
circumstances of this case are even more extraordinary when
one considers the stakes: Appellees have obtained a nearly-
billion dollar default judgment against a foreign government
whose present and future stability has become a central
preoccupation of the United States’ foreign policy. In these
circumstances, it would be utterly unseemly for this court to
ignore the clear implications of our holding in Cicippio. We
therefore find it appropriate to exercise our discretion to
determine whether appellees’ case must be dismissed for
failure to state a cause of action.
In their complaint, appellees premised their claim of liabili-
ty on § 1605(a)(7), as amended, asserting that this provision
‘‘creates a federal cause of action for torture TTT of American
nationals, or for the benefit of American national claimants,
when such acts are committed by a foreign state designated
 29

as a state sponsor of terrorism.’’ Compl. ¶ 596, J.A. 143.
The complaint pointed to several decisions of the District
Court that proceeded on the assumption that § 1605(a)(7), as
amended by the Flatow Amendment, ‘‘not only waives sover-
eign immunity and provides jurisdiction but also creates a
cause of action within its scope of applicability.’’ Id. While
appellees also alluded to the ‘‘traditional torts of assault,
battery and intentional infliction of emotional distress’’ in
their generic form, Compl. ¶ 597, J.A. 143, they did not point
to any other specific source in state, federal, or foreign law
for their cause of action.
The District Court similarly relied on § 1605(a)(7) and the
Flatow Amendment, finding that those provisions ‘‘create[ ] a
federal cause of action against officials, employees and agents
of a foreign state, as well as the state and its agencies and
instrumentalities themselves.’’ Acree I, 271 F. Supp. 2d at
215. In company with appellees, the District Court reasoned
that ‘‘[s]uits brought under § 1605(a)(7) may be based on
conventional common law torts such as assault, battery, and
intentional infliction of emotional distress,’’ id., and found that
the facts appellees alleged satisfied the elements of several
such torts, see id. at 215–17. The District Court cited no
alternative cause of action.
In Cicippio, we held that neither § 1605(a)(7) nor the
Flatow Amendment, nor the two together, creates a cause of
action against foreign states themselves. See Cicippio, 353
F.3d at 1033. This holding applies also to suits against
‘‘agenc[ies] or instrumentalit[ies]’’ of a foreign state, which
are included in the FSIA’s definition of ‘‘foreign state,’’ see 28
U.S.C. § 1603(a), (b); see also Roeder, 333 F.3d at 234
(explaining that an official state entity whose core functions
are governmental is treated as the foreign state itself for
purposes of the FSIA); Compl. ¶ 3, J.A. 33 (stating that the
Iraqi Intelligence Service is an agency or instrumentality of
Iraq and therefore also a ‘‘foreign state’’ within the meaning
of the FSIA). Cicippio also made clear that any suit against
an official of a foreign state must be a suit in that official’s
personal capacity. See 353 F.3d at 1034; cf. Compl. ¶¶ 2–3,
J.A. 31–33 (naming as a defendant Saddam Hussein ‘‘in his
 30

official capacity as President of the Republic of Iraq.’’). The
causes of action advanced by appellees before the District
Court therefore do not suffice to state claims for which relief
may be granted.
In response to our order to consider this issue in prepara-
tion for oral argument, appellees did not advance any alterna-
tive causes of action. At oral argument, counsel for appellees
gestured again toward generic common law torts, see Oral
Argument Tr. at 23–29, but generic common law cannot be
the source of a federal cause of action. The shared common
law of the states may afford useful guidance as to the rules of
decision in a FSIA case where a cause of action arises from
some specific and concrete source of law. See Bettis, 315
F.3d at 333 (assuming, arguendo, that plaintiffs stated a
cause of action under the Flatow Amendment and then
turning to generic common law to flesh out the controlling
substantive law). But there is no support for the proposition
that generic common law itself may furnish the cause of
action. Rather, as in any case, a plaintiff proceeding under
the FSIA must identify a particular cause of action arising
out of a specific source of law. Appellees failed to do so in
this case.
Here, appellees pointed to no source of liability other than
§ 1605(a)(7) and the Flatow Amendment. When pressed
repeatedly at oral argument, appellees offered no coherent
alternative. We therefore find no cause to remand this case
to the District Court in order to allow appellees to amend
their complaint to state a cause of action under some other
source of law. See Cicippio, 353 F.3d at 1036. In Cicippio,
we permitted such a remand because the state of the law at
the time of that appeal ‘‘may have TTT misled’’ the plaintiffs in
that case into assuming that the Flatow Amendment afforded
a cause of action against the foreign state defendant. See id.
In addition, we noted that amici in that case had advanced
the possibility that an alternative source of law might supply
a viable cause of action. See id. In this case, by contrast, our
decision in Cicippio and our order to the parties prior to oral
argument put appellees on notice of this issue. Despite this
notice, appellees offered no alternative cause of action when
 31

asked to do so at oral argument. Accordingly, appellees’ suit
must be dismissed for failure to state a cause of action.

III. CONCLUSION
We are mindful of the gravity of appellees’ allegations in
this case. That appellees endured this suffering while acting
in service to their country is all the more sobering. Never-
theless, we cannot ignore the magnitude of their default
judgment or its impact on the United States’ conduct of
foreign policy where the law is indisputably clear that appel-
lees were not legally entitled to this judgment. We reverse
the order of the District Court denying the United States’
motion to intervene, Acree II, 276 F. Supp. 2d. 95. We vacate
the District Court’s judgment for appellees, Acree I, 271 F.
Supp. 2d 179, and dismiss appellees’ suit against the Republic
of Iraq, the Iraqi Intelligence Service, and Saddam Hussein
in his official capacity as President of Iraq on the grounds
that appellees have failed to state a cause of action.
So ordered.
 1

ROBERTS, Circuit Judge, concurring in part and concurring
in the judgment: I agree with the majority that the district
court erred in denying the United States’ motion to intervene.
I also concur in the court’s judgment of dismissal, but I reach
that result by a different path than the majority has taken.
In my view, Section 1503 of the EWSAA includes the authori-
ty to make Section 1605(a)(7) of the FSIA—on its face a
‘‘provision of law that applies to countries that have supported
terrorism’’—inapplicable to Iraq, and the Presidential Deter-
mination of May 7, 2003 therefore ousted the federal courts of
jurisdiction in cases that relied on that exception to Iraq’s
sovereign immunity. I also conclude that this ouster of
jurisdiction is properly applied to pending cases, and that the
district court’s judgment should thus be vacated and the case
dismissed for want of jurisdiction.
A. The Scope of Section 1503 of the EWSAA
1. The pertinent language of Section 1503 is straightfor-
ward, authorizing the President to make inapplicable 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’’ (emphasis added). As this court re-
cently observed, ‘‘the Supreme Court has consistently in-
structed that statutes written in broad, sweeping language
should be given broad, sweeping application.’’ Consumer
Elecs. Ass’n v. FCC, 347 F.3d 291, 298 (D.C. Cir. 2003). ‘‘Any
other provision’’ should be read to mean ‘‘any other provi-
sion,’’ not, as the majority would have it, ‘‘provisions that
present obstacles to assistance and funding for the new Iraqi
Government.’’ Slip op. at 16.
This is particularly true given that Congress knows how to
use more limited language along the lines of the majority’s
construction when it wants to. Congress did just that in
another appropriations statute enacted just two months prior
to the EWSAA. In that statute, Congress declared that
certain restrictions on funding to foreign countries should not
be construed to restrict assistance to nongovernmental organ-
izations in those countries, but provided that this easing of
restrictions would not apply ‘‘with respect to section 620A of
the Foreign Assistance Act of 1961 or any comparable provi-
sion of law prohibiting assistance to countries that support
 2

international terrorism.’’ Consolidated Appropriations Reso-
lution, 2003, Pub. L. No. 108-7, Div. E, § 537(c)(1), 117 Stat.
11, 196 (Feb. 20, 2003) (emphases added). The EWSAA, of
course, refers to the very same section of the Foreign Assis-
tance Act but includes substantially broader language in its
subsequent catchall phrase. This use of different language in
two statutes so analogous in their form and content, enacted
so close in time, suggests that the statutes differ in their
meaning, and that the facially broader language was in fact
intended to have the broader scope.
2. The majority notes that Section 1605(a)(7) of the FSIA
already ‘‘specifically provides that when a country, once des-
ignated as a state sponsor of terrorism, is subsequently
restored to good standing, that country is still amenable to
suit for acts that took place prior to the restoration of its
sovereign immunity.’’ Slip op. at 25. The majority then
concludes that the general power conferred by Section 1503
of the EWSAA should not be read to authorize the President
to restrike this previously-fixed balance between the interests
of a newly non-terrorist state and those of victims of terror-
ism.
I respectfully disagree. The majority’s reading simply
assumes that the balance Congress struck in 1996 was left
untouched by the EWSAA. In 2003, however, Congress for
the first time confronted the prospect that a friendly succes-
sor government would, in its infancy, be vulnerable under
Section 1605(a)(7) to crushing liability for the actions of its
renounced predecessor. See U.S. DEP’T OF STATE, PATTERNS OF
GLOBAL TERRORISM 1999, at 2 (April 2000) (noting that the list
of state sponsors of terrorism had been unchanged since
1993); U.S. DEP’T OF STATE, PATTERNS OF GLOBAL TERRORISM
2001, at 63 (May 2002) (listing the same states). Certainly
there is no evidence indicating that, when it enacted Section
1605(a)(7), Congress contemplated that a successor govern-
ment’s cessation of support for terrorism would come about
under circumstances like those in Iraq. Given the broad
language of the EWSAA and the circumstances surrounding
its enactment, it is entirely possible—and surely not ‘‘perplex-
ing,’’ slip op. at 25—that Congress in 2003 made an ad hoc
 3

decision to strike a different balance in favor of the new
government of Iraq. The whole point of Section 1503 was to
change existing rules to respond to new realities; it is not a
compelling argument against a construction of the section to
object that it would do just that.
3. The majority further finds that construing the EWSAA
to authorize an ouster of jurisdiction over Iraq in Section
1605(a)(7) cases would be ‘‘bizarre’’ in light of the sunset
provisions of Section 1503. Slip op. at 25. ‘‘[A]bsent inter-
vening events,’’ the majority states, ‘‘[Section] 1605(a)(7)
would once again be available as a basis of jurisdiction after
September 30, 2004.’’ Id. Given the range of possibilities
contained in the majority’s careful caveat, the prediction itself
is overwrought. As one member of Congress has explained,
in relation to a different statute, ‘‘[s]unsetting laws does not
mean repealing them. Laws would only expire if Congress
failed to meet its responsibility to reexamine and renew these
statutes within a specified period of time.’’ S. REP. NO. 104-
85, at 64 (1995) (statement of Sen. Grams).
One need look no further than the title of the EWSAA to
discern its emergency nature; a sunset provision in such a
statute is intended to buy time for fuller consideration of the
issues, rather than to establish an immutable date for the
statute’s presumed extinction. And it hardly needs saying
that the sunset provision in Section 1503 applies not only to
the proviso at issue in this case, but to all of that section. If
the majority’s prediction of abject congressional lassitude is
accurate, the Iraq Sanctions Act of 1990 will itself return to
full strength on September 30, 2004. Nothing in the ISA
requires that Iraq be included on the State Department’s list
of state sponsors of terrorism, so even an orderly de-listing of
Iraq by the executive branch under the procedures of 22
U.S.C. § 2371(c) would not alter the ISA’s restrictions on
assistance. In short, the occurrence of ‘‘intervening events’’
is far more likely than their absence.
4. I agree with the majority that this question of statutory
interpretation is close, and I do not suggest that the EWSAA
is entirely unambiguous. But the plaintiffs err in their
 4

assumption that the government must somehow prove that
Congress intended the statute’s broad terms to be construed
broadly. See Appellees’ Br. at 25 (‘‘There is no indication
that the proviso [in Section 1503] was intended to be a broad
tool of foreign policy involving a retroactive restoration of
sovereign immunity’’); cf. slip op. at 24 (‘‘There is no refer-
ence in the legislative history [of Section 1503] to the FSIA in
particular or to federal court jurisdiction in general.’’). The
burden is precisely the opposite: the party seeking to narrow
the application of the statute must demonstrate that Con-
gress intended something less than what the law on its face
says. See, e.g., Harrison v. PPG Industries, 446 U.S. 578,
589 (1980) (‘‘[T]he phrase, ‘any other final action,’ in the
absence of legislative history to the contrary, must be con-
strued to mean exactly what it says’’). And as this court has
stated, ‘‘the plainer the language, the more convincing con-
trary legislative history must be.’’ Cole v. Harris, 571 F.2d
590, 597 (D.C. Cir. 1977) (internal quotation marks and cita-
tion omitted).
Harrison in fact resembles this case in significant respects:
the Court was interpreting an amendment to the Clean Air
Act that provided for review, in the appropriate federal court
of appeals, of ‘‘locally and regionally applicable actions’’ taken
by the Environmental Protection Agency ‘‘under specifically
enumerated provisions of the Act, and of ‘any other final
action of the [EPA under the Act] TTT which is locally or
regionally applicable.’ ’’ 446 U.S. at 579 (quoting 42 U.S.C.
§ 7607(b)(1) (1976 & Supp. II)) (emphasis and ellipsis in
original). The respondents, citing the ejusdem generis canon
of interpretation (the corollary noscitur a sociis was not then
in vogue), urged the court to construe the phrase ‘‘any other
final action’’ to mean only final actions similar to those
specifically identified in the statute. Id. at 587. The Court
refused, noting that the ejusdem generis canon should be
applied only when the meaning of the text is uncertain and
finding ‘‘no uncertainty in the meaning of the phrase, ‘any
other final agency action.’ ’’ Id. at 588.
Significantly, the Court also rejected the respondents’ ar-
gument—based on the ‘‘scant’’ legislative history of the
 5

amendment—that it was ‘‘unlikely TTT that Congress would
have expanded so radically the jurisdiction of the courts of
appeals, and divested the district courts of jurisdiction, with-
out some consideration and discussion of the matter.’’ Id. at
591, 592. ‘‘In ascertaining the meaning of a statute,’’ the
Court stated, ‘‘a court cannot, in the manner of Sherlock
Holmes, pursue the theory of the dog that did not bark.’’ Id.
at 592. The Court concluded that the statutory language
meant ‘‘exactly what it sa[id], namely, any other final action.’’
Id. at 589 (emphasis in original).
More recently, the Court unanimously rejected the sugges-
tion that certain broad terms of the Federal Power Act (FPA)
should be construed narrowly in light of Congress’s focused
intent to overrule one of the Court’s prior cases: ‘‘[E]ven if
[the prior case] catalyzed the enactment of the FPA, [it] does
not define the outer limits of the statute’s coverage.’’ New
York v. FERC, 535 U.S. 1, 21 (2002). In my view, Harrison
and New York illustrate the appropriate approach to a broad-
ly worded statute such as Section 1503 of the EWSAA. The
absence of any reference to the FSIA in the legislative
history does not compel the conclusion that Section 1503 does
not reach it, and the fact that Congress may have been
focused primarily on removing barriers to the flow of aid to
Iraq does not mean that the statute refers exclusively to such
barriers. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 689
(2001) (‘‘the fact that a statute can be applied in situations not
expressly anticipated by Congress does not demonstrate am-
biguity. It demonstrates breadth.’’) (quoting Pennsylvania
Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998)).1 Because
the legislative history contains no ‘‘convincing’’ indication,
Cole, 571 F.2d at 597, that Congress did not intend to include
Section 1605(a)(7) of the FSIA among the ‘‘any other’’ provi-
sions that the President could render inapplicable to Iraq, I
conclude that the President was authorized to—and did, with
1 Application of the ejusdem generis canon seems particularly
inappropriate in this case because the statute provides only one
point of reference (Section 620A of the Foreign Assistance Act)
from which to extrapolate.
 6

the Presidential Determination—oust the federal courts of
jurisdiction over Iraq in Section 1605(a)(7) cases.
5. I do not mean to suggest that the contrast between the
language of the Consolidated Appropriations Resolution and
that of the EWSAA is conclusive proof of Congress’s intent—
but then neither is the majority’s invocation of the pre-
existing balance struck in Section 1605(a)(7). I appreciate
that my view of Congress’s purpose in restriking that balance
is necessarily speculative—but then so is the majority’s more
limited view of Congress’s purpose to reach only aid statutes.
The majority can cite United States v. Morrow, 266 U.S. 531
(1925), for a presumption that supports its construction of the
pertinent proviso, see slip op. at 19, 22—but I can respond
with a case of similar vintage for the opposite proposition that
‘‘a frequent use of the proviso in Federal legislation [is] to
introduce TTT new matter extending rather than limiting or
explaining that which has gone before.’’ Interstate Com-
merce Comm’n v. Baird, 194 U.S. 25, 37 (1904). And both I
and the majority (and everyone else, for that matter) are on
tenuous ground when it comes to predicting whether Con-
gress will act prior to the sunset date in Section 1503.2
2 There is of course an established framework that governs
judicial review of statutory interpretations by agencies in the execu-
tive branch. See Chevron USA Inc. v. Natural Res. Def. Council,
467 U.S. 837 (1984). In such circumstances, we defer to any
reasonable construction adopted by the entity Congress has en-
trusted with administering the statute. Id. at 843–45. There is no
doubt that the President’s interpretation of Section 1503 to cover
Section 1605(a)(7) is at least a reasonable one. The applicability of
Chevron to presidential interpretations is apparently unsettled, see
Chamber of Commerce of the United States v. Reich, 74 F.3d 1322,
1325 (D.C. Cir. 1996); Note, Extending Chevron Deference to
Presidential Interpretations of Ambiguities in Foreign Affairs and
National Security Statutes Delegating Lawmaking Power to the
President, 86 CORNELL L. REV. 411 (2001), but it is interesting to
note that this would be an easy case had the EWSAA provided that,
say, the Secretary of State may exercise the authority conferred
under Section 1503. It is puzzling why the case should be so much
harder when the authority is given to the Secretary’s boss.
 7

In such circumstances I prefer to rest on the firmer
foundation of the statutory language itself. Give me English
words over Latin maxims. The words here—‘‘any other
provision of law that applies to countries that have supported
terrorism’’—are, even if not entirely unambiguous, plain
enough to impose a heavy burden on those who would rely on
canons, or structure, or assumed purposes to conclude the
words do not reach a law that applies, by its terms, to a
foreign state ‘‘designated as a state sponsor of terrorism.’’ 28
U.S.C. § 1605(a)(7)(A). The majority ably marshals the argu-
ments on the other side, but at the end of the day I find
greater solace in the words themselves. See Connecticut
Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (‘‘canons
of construction are no more than rules of thumb that help
courts determine the meaning of legislation, and in interpret-
ing a statute a court should always turn first to one, cardinal
canon before all others. We have stated time and again that
courts must presume that a legislature says in a statute what
it means and means in a statute what it says there.’’).3
B. Application to Pending Cases
The plaintiffs argue that even if Section 1503 is properly
read to include an ouster of jurisdiction under the FSIA,
applying the statute to pending cases such as this one would
be impermissibly retroactive under Landgraf v. USI Film
Products, 511 U.S. 244 (1994). This court reviewed the
applicability of the Landgraf framework to jurisdictional stat-
3 The plaintiffs argue that the grant of such authority to the
President is unconstitutional in light of Clinton v. New York, 524
U.S. 417 (1998), because such a grant would empower the President
‘‘to change the text of § 1605(a)(7) so that Iraq’s immunity no
longer turns on its status at the time the act occurred’’ or to
‘‘repeal[ ] § 1605(a)(7) solely as it relates to Iraq.’’ Appellees’ Br.
at 50. The actions authorized by the EWSAA are a far cry from
the line-item veto at issue in Clinton, and are instead akin to the
waivers that the President is routinely empowered to make in other
areas, particularly in the realm of foreign affairs. See, e.g., 22
U.S.C. § 7207(a)(3) (authorizing the President to waive a statutory
prohibition on assistance to certain countries if he determines that a
waiver is in the national security interest).
 8

utes in LaFontant v. INS, 135 F.3d 158 (D.C. Cir. 1998), and
concluded that the pertinent question—assuming Congress
had not explicitly addressed retroactivity—was whether the
statute spoke to the power of the court or instead to the
substantive rights of the parties. Retroactive application is
permissible in the former case, but not the latter. Id. at 163.
We recently held that Section 1605(a)(7) of the FSIA is
solely a jurisdictional provision that creates no cause of action
and does not affect the substantive law determining the
liability of a foreign state. Cicippio-Puleo v. Islamic Repub-
lic of Iran, 353 F.2d 1024, 1033–34 (D.C. Cir. 2004). Render-
ing Section 1605(a)(7) inapplicable, therefore, can only affect
the power of the court and not the substantive rights of the
parties. Application of the EWSAA to Section 1605(a)(7) is
accordingly not impermissibly retroactive with respect to
pending cases.
Moreover, the concern animating the Supreme Court’s
retroactivity jurisprudence is that ‘‘settled expectations
should not be lightly disrupted.’’ Landgraf, 511 U.S. at 265
(footnote omitted). At the time of the primary conduct at
issue here, the jurisdictional grant of Section 1605(a)(7) did
not even exist. We now know that the cause of action
plaintiffs invoke did not exist then or now. Cicippio, 353
F.3d at 1033–34; see slip op. at 27–31. Any claim plaintiffs
could have brought was in any event always subject to
compromise or abrogation by the Executive. See American
Ins. Ass’n v. Garamendi, 123 S. Ct. 2374, 2386–87 (2003);
Dames & Moore v. Regan, 453 U.S. 654, 686 (1981). Under
these circumstances, there is no impediment to application of
the normal rule that provisions addressing the power of a
court be given retroactive effect.

***
For the foregoing reasons, I would hold that Section 1503
of the EWSAA and the Presidential Determination deprived
the courts of jurisdiction over suits against Iraq under Sec-
tion 1605(a)(7), and that the new jurisdictional rule applies to
pending cases, including this one. I therefore agree that the
 9

judgment of the district court should be vacated and the case
dismissed.