Lawyers for five former Iran hostages who were held captive for more than a year before their release in 1981 are trying to revive a suit that seeks to hold Iran liable despite an accord that barred legal action.
The plaintiffs, who sued Iran in U.S. District Court for the District of Columbia in March 2008, are former civilian and military diplomatic personnel and support staff who worked at the U.S. embassy in Tehran in 1979.
The Justice Department intervened in the litigation in 2009 and, last year, a trial judge in Washington sided with the government in dismissing the suit. In his ruling, Judge Emmet Sullivan noted the plaintiffs have tried, unsuccessfully, to sue Iran since 1983 to hold that country responsible for "tremendous suffering."
White & Case partner George Terwilliger III, representing the former hostages, tried to convince a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today to revive the suit.
Terwilliger said Congress in 2008, through a defense authorization bill, gave the plaintiffs, who include David Roeder, a cause of action to sue Iran for the captivity. Terwillger said the congressional action abrogated the Algiers Accords, the executive action the U.S. negotiated with Iran to resolve the hostage crisis at the embassy.
Judges Merrick Garland and Thomas Griffith, sitting with Senior Judge A. Raymond Randolph, today examined whether the statute in question was ambiguous on whether the plaintiffs have a cause of action against Iran. One question before the court is whether Congress intended to repeal the Algiers Accords.
In the U.S. Court of Appeals today, Terwillger described the case as simple and straightforward: the National Defense Authorization Act of 2008 (NDAA) unambiguously gave the former hostages the right to sue Iran. He said Congress does not need to issue an “express” statement nullifying the Algiers Accords.
“Indeed, the effect of the District Court’s analysis is to create an absolute rule that executive agreements cannot be repealed by implication by a subsequent statute but only by an express statement of intent to abrogate in that subsequent statute,” Terwilliger said in court papers filed in February in the D.C. Circuit. “That, however, is not the law and would impermissibly and unconstitutionally elevate executive agreements over statutes.”
Justice Department Civil Division lawyer Lewis Yelin told the appellate judges the NDAA is limited to actions related to pending cases. The price of securing the release of American hostages, Yelin said, was “not easily paid.” The accords, he said, block suits over the hostage-taking.
Yelin also said Congress failed to put the president on notice that lawmakers intended to break the Algiers Accords.
“Because Congress neither expressly abrogated the Algiers Accords, nor unambiguously created a right of action for plaintiffs against Iran for the 1979 hostage taking, the district court properly dismissed plaintiffs’ suit for failure to state a claim,” Yelin said in appellate court papers.
Yelin said violating the agreement could have ramifications in dealing with Iran in the future. He said violating the agreement could make it more dangerous in extracting hostages, for example, if that situation were to arise.
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