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A Veto in a Pocket

Christopher Brauchli
[Ezra Pound] was a village explainer, excellent if you were a village, but if you were not, not. - Gertrude Stein, The Autobiography of Alice B. Toklas

Things are not as they as they seem. Especially not when George Bush is the explainer. Consider the proffered reasons for the pocket veto of the military authorization bill.

That bill was sent to Mr. Bush just before Congress went off for its long awaited Christmas vacation. The bill provided increased pay for the troops and lots of other important things that had been agreed upon by Congress and Mr. Bush. One of the things that Mr. Bush had overlooked, however, was §1083 entitled "Terrorism Exception to Immunity." It creates an exception to the jurisdictional immunity of a foreign state that is granted by federal law. Since the bill is 1300 pages long and contains dozens of sections it is not surprising that §1083 of the bill was overlooked by Mr. Bush.

The opening operational clause of the bill provides that "A foreign state shall not be immune from the jurisdiction of courts of the United States . . . in which money damages are sought . . . for personal injury or death that was caused by an act of torture, extrajudicial killing, [a phrase that seems to exclude a judicially imposed death penalty such as those enjoyed by U.S. citizens but not by citizens of most other civilized countries]. . . if engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her . . . employment. . . ." The bill goes on to say courts shall hear claims filed against foreign states if they were "designated as a state sponsor of terrorism at the time the act described [above] . . . (1) occurred, or was so designated as a result of such act . . . ."

Mr. Bush would have no objection to §1083 if Mr. Hussein were still in office since the bill would permit suits to be brought against Iraq for damages individuals suffered at the hands of Saddam Hussein. Since Mr. Bush has overthrown Mr. Hussein and Iraq is now our friend, however, he doesn't want Iraq to suffer financial harm today for what it did to our citizens when Mr. Hussein was in charge. Accordingly Mr. Bush prepared a Memorandum of Disapproval explaining why he was exercising a pocket veto over the bill.

The opening paragraph of the memorandum says §1083 "would imperil billions of dollars of Iraqi assets at a crucial juncture in that nation's reconstruction efforts" and the first six paragraphs of the memorandum focus on the reasons that permitting lawsuits against Iraq would be harmful to Iraq. Included among them is that §1083 runs afoul of Mr. Bush's executive orders that are designed to "remove obstacles to the orderly reconstruction of Iraq." (In referring to "orderly reconstruction" he is not thinking of the billions of dollars that have been lost because of his failure to put in place adequate controls over spending.)

The real reason for the memorandum, the cynic would believe, however, is found in the second clause of the opening paragraph and the 7th paragraph of the memorandum. The second clause of the opening paragraph says that §1083 "would undermine the foreign policy and commercial interests of the United States." Embellishing on that thought in the 7th paragraph Mr. Bush says he is concerned about the effect §1083 will have on the United States and its economy. He says that: "By potentially forcing a close U.S. ally to withdraw significant funds from the U.S. financial system, §1083 would cast doubt on whether the United States remains a safe place to invest and to hold financial assets." Putting aside the diving dollar and the doubt it has inspired in the minds of foreign investors on whether the United States "remains a safe place to invest and to hold financial assets," the answer to that concern is that it remains a safe place to invest and hold financial assets if the country doing so is not a "foreign state. . . designated as a state sponsor of terrorism at the time the act . . . occurred."

Mr. Bush goes on to say that: "Iraqi entities would be deterred from engaging in commercial partnerships with U.S. businesses for fear of entangling assets in lawsuits. Section 1083 would be viewed with alarm by the international community and would invite reciprocal action against United States assets abroad." The only members of the international community who would be alarmed or might reciprocate are those members designated as terrorist states about whom Mr. Bush need not be solicitous. Nonetheless, as explainer-in- chief he also believes he is forgiver-in-chief. In that capacity he believes formerly terrorist states should not be punished financially for the transgressions of their predecessors. Given the physical punishment he has inflicted on the Iraqis because of Mr. Hussein's transgressions, he may be right.

Christopher Brauchli For political commentary see my web page

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