REPUBLIC OF IRAQ v. BEATY et al.

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848 OCTOBER TERM, 2008
Syllabus
REPUBLIC OF IRAQ v. BEATY et al.
certiorari to the united states court of appeals for
the district of columbia circuit
No. 07–1090. Argued April 20, 2009—Decided June 8, 2009*
The Foreign Sovereign Immunities Act of 1976 (FSIA) prohibits suits
against other countries in American courts, 28 U. S. C. § 1604, with cer
tain exceptions. One exception, § 1605(a)(7) (now repealed), stripped a
foreign state of immunity in any suit arising from certain acts of terror
ism that occurred when the state was designated as a sponsor of terror
ism under § 6( j) of the Export Administration Act of 1979 or § 620A of
the Foreign Assistance Act of 1961.
Iraq was designated as a sponsor of terrorism in 1990, but in 2003,
following the American-led invasion of Iraq, Congress enacted the
Emergency Wartime Supplemental Appropriations Act (EWSAA),
§ 1503 of which included a proviso clause (the second in a series of eight)
authorizing the President to “make inapplicable with respect to Iraq
[§] 620A of the Foreign Assistance Act of 1961 or any other provision of
law that applies to countries that have supported terrorism.” Although
President Bush exercised that authority, the D. C. Circuit held in its
2004 Acree decision that the EWSAA did not permit the President to
waive § 1605(a)(7), and thereby restore Iraq’s sovereign immunity, for
claims arising from actions Iraq took while designated as a sponsor of
terrorism.
Thereafter, Congress repealed § 1605(a)(7) in § 1083(b)(1)(A)(iii) of the
National Defense Authorization Act for Fiscal Year 2008 (NDAA) and
replaced it with a new, roughly similar exception, § 1083(a). The NDAA
also declared that nothing in the EWSAA “ever authorized, directly or
indirectly, the making inapplicable of any provision of [the FSIA] or the
removal of the jurisdiction of any court” (thus purporting to ratify
Acree), § 1083(c)(4); and authorized the President to waive “any provi
sion of this section with respect to Iraq” under certain conditions,
§ 1083(d). On the same day the President signed the NDAA into law
he also waived all of § 1083’s provisions as to Iraq.
Respondents filed these suits against Iraq in early 2003, alleging
mistreatment by Iraqi officials during and after the 1991 Gulf War.
Under Acree, the courts below refused to dismiss either case on juris
*Together with No. 08–539, Republic of Iraq et al. v. Simon et al., also
on certiorari to the same court.

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dictional grounds. The D. C. Circuit also rejected Iraq’s alternative
argument that even if § 1605(a)(7)’s application to it survived the Presi
dent’s EWSAA waiver, the provision was repealed by NDAA
§ 1083(b)(1)(A)(iii); and that the President had waived NDAA § 1083(a)’s
new exception with respect to Iraq under his § 1083(d) authority. The
court held instead that it retained jurisdiction over cases pending
against Iraq when the NDAA was enacted.
Held: Iraq is no longer subject to suit in federal court. Pp. 856–867.
(a) The District Court lost jurisdiction over both suits in May 2003,
when the President exercised his EWSAA authority to make
§ 1605(a)(7) “inapplicable with respect to Iraq.” Pp. 856–862.
(i) Iraq’s (and the United States’) reading of EWSAA § 1503’s sec
ond proviso as sweeping in § 1605(a)(7)’s terrorism exception to foreign
sovereign immunity is straightforward. In the proviso’s terms, the ex
ception is a “provision of law” (indisputably) that “applies to” (strips
immunity from) “countries that have supported terrorism” (as desig
nated pursuant to certain statutory provisions). Because he exercised
his waiver authority with respect to “all” provisions of law encompassed
by the second proviso, his actions made § 1605(a)(7) “inapplicable” to
Iraq. Pp. 856–857.
(ii) Acree’s resistance to the above construction was based on a so
phisticated attempt to construe EWSAA § 1503’s second proviso as lim
iting that section’s principal clause, which authorized suspension of “any
provision of the Iraq Sanctions Act of 1990.” While a proviso’s “general
office . . . is to except something from the enacting clause, or to qualify
and restrain its generality,” United States v. Morrow, 266 U. S. 531, 534,
another recognized use is “to introduce independent legislation,” id.,
at 535, which was the function of the proviso here. In any event,
§ 1605(a)(7) falls within the scope of the proviso even accepting the nar
rower interpretation adopted by the Acree decision. Pp. 857–860.
(iii) Respondents’ other objections to the straightforward interpre
tation of EWSAA § 1503’s proviso are rejected. P. 861.
(iv) Nothing in the NDAA changes the above analysis. Although
NDAA § 1083(c)(4) appears to ratify Acree, this Court need not decide
whether such a ratification is effective because § 1083(d)(1) authorized
the President to “waive any provision of this section with respect
to Iraq,” and he waived “all” such provisions, including § 1083(c)(4).
Pp. 861–862.
(b) The Court rejects the argument that § 1605(a)(7)’s inapplicability
does not bar claims arising from Iraq’s conduct prior to the President’s
waiver. In order to exercise jurisdiction over these cases, the District

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Court had to “apply” § 1605(a)(7) with respect to Iraq, but the Presi
dent’s waiver made that provision “inapplicable.” No retroactivity
problem is posed by this construction, if only because the primary con
duct by Iraq that forms the basis for these suits actually occurred before
§ 1605(a)(7)’s enactment. Pp. 863–865.
(c) Respondents also argue that EWSAA § 1503’s sunset clause—
under which “the authorities contained in [that] section” expired in
2005—revived § 1605(a)(7) and restored jurisdiction as of the sunset
date. But expiration of the § 1503 authorities is not the same as cancel
lation of the effect of the prior valid exercise of those authorities.
Pp. 865–866.
No. 07–1090, and No. 08–539, 529 F. 3d 1187, reversed.
Scalia, J., delivered the opinion for a unanimous Court.
Jonathan S. Franklin argued the cause for petitioners in
both cases. With him on the briefs were Robert A. Bur
goyne, Tillman J. Breckenridge, and Timothy B. Mills.
Douglas Hallward-Driemeier argued the cause for the
United States as amicus curiae urging reversal in both
cases. With him on the brief were then-Acting Solicitor
General Kneedler, Acting Assistant Attorney General Hertz,
Douglas N. Letter, and Lewis S. Yelin.
Thomas C. Goldstein argued the cause for respondents in
both cases. Andrew C. Hall, James Cooper-Hill, and Nel
son M. Jones III filed a brief for Jordan Beaty et al., respond
ents in No. 07–1090. Michael Rips, Anthony A. Onorato,
Justin B. Perri, and Stephen A. Fennell filed a brief for Rob
ert Simon et al., respondents in No. 08–539.†
†Briefs of amici curiae urging affirmance in both cases were filed for
Eleven Members of Congress et al. by Douglas W. Dunham, Ellen Quack
enbos, Daniel J. Popeo, and Richard A. Samp; and for James S. Vine et al.
in support of respondents in No. 08–539 by Daniel Wolf.
Briefs of amici curiae urging affirmance in No. 08–539 were filed for
the Center for Justice & Accountability by William J. Aceves and Kim J.
Landsman; for the Human Rights Committee of the American Branch
of the International Law Association by Jordan J. Paust; for St. Mary’s
University School of Law, Center for Terrorism Law et al. by Jeffrey F.

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Opinion of the Court
Justice Scalia delivered the opinion of the Court.
We consider in these cases whether the Republic of Iraq
remains subject to suit in American courts pursuant to the
terrorism exception to foreign sovereign immunity, now re
pealed, that had been codified at 28 U. S. C. § 1605(a)(7).
I
A
Under the venerable principle of foreign sovereign immu
nity, foreign states are ordinarily “immune from the jurisdic
tion of the courts of the United States and of the States,”
§ 1604. See generally Schooner Exchange v. McFaddon, 7
Cranch 116 (1812). But the statute embodying that princi
ple—the Foreign Sovereign Immunities Act of 1976 (FSIA),
28 U. S. C. § 1602 et seq.—recognizes a number of exceptions;
if any of these is applicable, the state is subject to suit, and
federal district courts have jurisdiction to adjudicate the
claim. § 1330(a); Verlinden B. V. v. Central Bank of Nige
ria, 461 U. S. 480, 489 (1983).
In 1996, Congress added to the list of statutory exceptions
one for state sponsors of terrorism, which was codified at
28 U. S. C. § 1605(a)(7). Subject to limitations not rele
vant here, that exception stripped immunity in any suit for
money damages
“against a foreign state for personal injury or death that
was caused by an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of ma
terial support or resources . . . for such an act . . . except
Addicott; for Tortured American Prisoners of War by John Norton Moore;
for Dr. Louis Fisher et al. by Charles Swift and Ruth J. Vernet; and for
Dr. Stephen Neale by Leslie E. Chebli.
Steven R. Perles and Thomas Fortune Fay filed a brief of amici curiae
in No. 08–539 for Plaintiffs in Peterson v. Islamic Republic of Iran, CA
01–2094 (RCL) etc., in the United States District Court for the District of
Columbia.

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that the court shall decline to hear a claim under this
paragraph—
“(A) if the foreign state was not designated as a state
sponsor of terrorism under section 6( j) of the Export
Administration Act of 1979 (50 U. S. C. App. 2405( j)) or
section 620A of the Foreign Assistance Act of 1961 (22
U. S. C. 2371) at the time the act occurred . . . .”
In brief, § 1605(a)(7) stripped immunity from a foreign state
for claims arising from particular acts, if those acts were
taken at a time when the state was designated as a sponsor
of terrorism.
B
In September 1990, Acting Secretary of State Lawrence
Eagleburger formally designated Iraq, pursuant to § 6( j) of
the Export Administration Act of 1979, as redesignated and
amended, 99 Stat. 135, 50 U. S. C. App. § 2405( j), as “a
country which has repeatedly provided support for acts
of international terrorism,” 55 Fed. Reg. 37793. Over a dec
ade later, in March 2003, the United States and a coalition
of allies initiated military action against that country. In
a matter of weeks, the regime of Iraqi dictator Saddam
Hussein collapsed and coalition forces occupied Baghdad.
American attention soon shifted from combat operations to
the longer term project of rebuilding Iraq, with the ultimate
goal of creating a stable ally in the region.
Toward that end, Congress enacted in April 2003 the
Emergency Wartime Supplemental Appropriations Act
(EWSAA), 117 Stat. 559. Section 1503 of that Act author
ized 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., at 579. President George W.
Bush exercised that authority to its fullest extent in May
2003, declaring “inapplicable with respect to Iraq section
620A of the Foreign Assistance Act of 1961 . . . and any other

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provision of law that applies to countries that have sup
ported terrorism.” 68 Fed. Reg. 26459.
Shortly thereafter, the United States Court of Appeals for
the District of Columbia Circuit had occasion to consider
whether that Presidential action had the effect of rendering
inapplicable to Iraq the terrorism exception to foreign sover
eign immunity. The court concluded in a divided panel deci
sion that the President’s EWSAA authority did not permit
him to waive § 1605(a)(7), and thereby restore sovereign im
munity to Iraq, for claims arising from acts it had taken
while designated as a sponsor of terror. Acree v. Republic
of Iraq, 370 F. 3d 41, 48 (2004). Because Iraq succeeded in
having the claims against it dismissed on other grounds, id.,
at 59–60, it could not seek certiorari to challenge the D. C.
Circuit’s interpretation of the EWSAA.
C
There is yet another legislative enactment, and yet an
other corresponding executive waiver, that bear on the ques
tion presented. The National Defense Authorization Act for
Fiscal Year 2008 (NDAA), 122 Stat. 3, was passed in January
2008. That Act (1) repealed the FSIA’s terrorism exception,
§ 1083(b)(1)(A)(iii); (2) replaced it with a new, roughly similar
exception, § 1083(a); (3) declared that nothing in § 1503 of the
EWSAA had “ever authorized, directly or indirectly, the
making inapplicable of any provision of chapter 97 of title 28,
United States Code, or the removal of the jurisdiction of any
court of the United States” (thus purporting to ratify the
Court of Appeals’ Acree decision), § 1083(c)(4), 122 Stat. 343;
and (4) authorized the President to waive “any provision of
this section with respect to Iraq” so long as he made certain
findings and so notified Congress within 30 days, § 1083(d),
id., at 343–344.
The last provision was added to the NDAA after the Presi
dent vetoed an earlier version of the bill, which did not in
clude the waiver authority. The President’s veto message

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said that the bill “would imperil billions of dollars of Iraqi
assets at a crucial juncture in that nation’s reconstruction
efforts.” Memorandum to the House of Representatives
Returning Without Approval the “National Defense Authori
zation Act for Fiscal Year 2008,” 43 Weekly Comp. of Pres.
Doc. 1641 (2007). Only when Congress added the waiver au
thority to the NDAA did the President agree to approve it;
and on the same day he signed it into law he also officially
waived “all provisions of section 1083 of the Act with respect
to Iraq,” 73 Fed. Reg. 6571 (2008).
II
We consider today two cases that have been navigating
their way through the lower courts against the backdrop of
the above-described congressional, military, Presidential,
and judicial actions. Respondents in the Simon case are
American nationals (and relatives of those nationals) who al
lege that they were captured and cruelly mistreated by Iraqi
officials during the 1991 Gulf War. The Beaty respondents
are the children of two other Americans, Kenneth Beaty and
William Barloon, who are alleged to have been similarly
abused by the regime of Saddam Hussein in the aftermath
of that war. Each set of respondents filed suit in early 2003
against Iraq in the United States District Court for the Dis
trict of Columbia, alleging violations of local, federal, and
international law.
Respondents invoked the terrorism exception to foreign
sovereign immunity, and given Acree’s holding that the Pres
ident had not rendered that statutory provision inapplicable
to Iraq, the District Court refused to dismiss either case on
jurisdictional grounds. In Beaty, after the District Court
denied Iraq’s motion to dismiss, 480 F. Supp. 2d 60, 70 (2007),
Iraq invoked the collateral order doctrine to support an in
terlocutory appeal. See Mitchell v. Forsyth, 472 U. S. 511,
524–529 (1985). In Simon, the District Court determined
that the claims were time barred and dismissed on that alter

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native basis, Vine v. Republic of Iraq, 459 F. Supp. 2d 10, 25
(2006), after which the Simon respondents appealed.
In the Beaty appeal, Iraq (supported by the United States
as amicus) requested that the Court of Appeals for the Dis
trict of Columbia Circuit reconsider Acree’s holding en banc.
The court denied that request over the dissent of Judges
Brown and Kavanaugh, and a panel then summarily affirmed
in an unpublished order the District Court’s denial of Iraq’s
motion to dismiss. No. 07–7057 (Nov. 21, 2007) (per cu
riam), App. to Pet. for Cert. in No. 07–1090, pp. 1a–2a.
While the Simon appeal was still pending, Congress
enacted the NDAA, and the Court of Appeals requested sup
plemental briefing addressing the impact of that legislation
on the court’s jurisdiction. Iraq contended, as an alter
native argument to its position that Acree was wrongly de
cided, that even if 28 U. S. C. § 1605(a)(7)’s application to Iraq
survived the President’s EWSAA waiver, the provision was
repealed by § 1083(b)(1)(A)(iii) of the NDAA, 122 Stat.
341; and that the new terrorism exception to sovereign
immunity—which was created by the NDAA and codified at
28 U. S. C. § 1605A (2006 ed., Supp. III)—was waived by
the President with respect to Iraq pursuant to his NDAA
authority.
The Court of Appeals rejected that argument, holding in
stead, based on a close reading of the statutory text, that
“the NDAA leaves intact our jurisdiction over cases . . . that
were pending against Iraq when the Congress enacted the
NDAA.” 529 F. 3d 1187, 1194 (2008). The panel then re
versed the District Court’s determination that the Simon
respondents’ claims were untimely, id., at 1195–1196, and re
buffed Iraq’s request for dismissal under the political ques
tion doctrine, id., at 1196–1198.
Iraq sought this Court’s review of both cases, asking us to
determine whether under current law it remains subject to
suit in the federal courts. We granted certiorari, 555 U. S.
1092 (2009), and consolidated the cases.

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III
A
Section 1503 of the EWSAA consists of a principal clause,
followed by eight separate proviso clauses. The dispute in
these cases concerns the second of the provisos. The princi
pal clause and that proviso read:
“The President may suspend the application of any pro
vision of the Iraq Sanctions Act of 1990: . . . 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 . . . .” 117
Stat. 579.
Iraq and the United States both read the quoted proviso’s
residual clause as sweeping in the terrorism exception to for
eign sovereign immunity. Certainly that reading is, as even
the Acree Court acknowledged, “straightforward.” 370 F.
3d, at 52.
Title 28 U. S. C. § 1605(a)(7)’s exception to sovereign immu
nity for state sponsors of terrorism stripped jurisdictional
immunity from a country unless “the foreign state was not
designated as a state sponsor of terrorism.” This is a “pro
vision of law” (indisputably) that “applies to” (strips im
munity from) “countries that have supported terrorism” (as
designated pursuant to certain statutory provisions). Of
course the word “any” (in the phrase “any other provision of
law”) has an “expansive meaning,” United States v. Gonza
les, 520 U. S. 1, 5 (1997), giving us no warrant to limit the
class of provisions of law that the President may waive. Be
cause the President exercised his authority with respect to
“all” provisions of law encompassed by the second proviso,
his actions made § 1605(a)(7) “inapplicable” to Iraq.
To a layperson, the notion of the President’s suspending
the operation of a valid law might seem strange. But the
practice is well established, at least in the sphere of foreign

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affairs. See United States v. Curtiss-Wright Export Corp.,
299 U. S. 304, 322–324 (1936) (canvassing precedents from as
early as the “inception of the national government”). The
granting of Presidential waiver authority is particularly apt
with respect to congressional elimination of foreign sover
eign immunity, since the granting or denial of that immunity
was historically the case-by-case prerogative of the Execu
tive Branch. See, e. g., Ex parte Peru, 318 U. S. 578, 586–
590 (1943). It is entirely unremarkable that Congress, hav
ing taken upon itself in the FSIA to “free the Government”
from the diplomatic pressures engendered by the case-by
case approach, Verlinden, 461 U. S., at 488, would nonethe
less think it prudent to afford the President some flexibility
in unique circumstances such as these.
B
The Court of Appeals in Acree resisted the above con
struction, primarily on the ground that the relevant text is
found in a proviso. We have said that, at least presump
tively, the “grammatical and logical scope [of a proviso] is
confined to the subject-matter of the principal clause.”
United States v. Morrow, 266 U. S. 531, 534–535 (1925).
Using that proposition as a guide, the Acree panel strove
mightily to construe the proviso as somehow restricting the
principal clause of EWSAA § 1503, which authorized the
President to suspend “any provision of the Iraq Sanctions
Act of 1990,” 117 Stat. 579.
In the Court of Appeals’ view, the second proviso related
to that subsection of the Iraq Sanctions Act (referred to in
the principal provision) which dictated that certain enumer
ated statutory provisions, 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,” shall
be fully enforced against Iraq. § 586F(c), 104 Stat. 2051 (em
phasis added). The panel understood the second EWSAA

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proviso as doing nothing more than clarifying that the au
thority granted by the principal clause (to suspend any part
of the Iraq Sanctions Act) included the power to make inap
plicable to Iraq the various independent provisions of law
that § 586F(c) of the Iraq Sanctions Act instructed to be en
forced against Iraq—which might otherwise continue to
apply of their own force even without the Iraq Sanctions Act.
However, the residual clause of § 586F(c) encompasses only
provisions that “impose sanctions”; and, in the Court of Ap
peals’ view, that excludes § 1605(a)(7), which is a rule going
instead to the jurisdiction of the federal courts. Thus, the
EWSAA proviso swept only as broadly as § 586F(c), and
therefore did not permit the President to waive the FSIA
terrorism exception.
This is a highly sophisticated effort to construe the proviso
as a limitation upon the principal clause. Ultimately, how
ever, we think that effort neither necessary nor successful.
It is true that the “general office of a proviso is to except
something from the enacting clause, or to qualify and re
strain its generality.” Morrow, supra, at 534. But its gen
eral (and perhaps appropriate) office is not, alas, its exclusive
use. Use of a proviso “to state a general, independent rule,”
Alaska v. United States, 545 U. S. 75, 106 (2005), may be lazy
drafting, but is hardly a novelty. See, e. g., McDonald v.
United States, 279 U. S. 12, 21 (1929). Morrow itself came
with the caveat that a proviso is sometimes used “to intro
duce independent legislation.” 266 U. S., at 535. We think
that was its office here. The principal clause granted the
President a power; the second proviso purported to grant
him an additional power. It was not, on any fair reading,
an exception to, qualification of, or restraint on the princi
pal power.
Contrasting the second EWSAA proviso to some of the
other provisos illustrates the point. For example, the first
proviso cautioned that “nothing in this section shall affect

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the applicability of the Iran-Iraq Arms Non-Proliferation Act
of 1992,” 117 Stat. 579, and the third forbade the export
of certain military equipment “under the authority of this
section,” ibid. Both of these plainly sought to define and
limit the authority granted by the principal clause. The
fourth proviso, however, mandated that “section 307 of
the Foreign Assistance Act of 1961 shall not apply with re
spect to programs of international organizations for Iraq,”
ibid., and it is impossible to see how that self-executing sus
pension of a distinct statute in any way cabined or clarified
the principal clause’s authorization to suspend the Iraq Sanc
tions Act.
There are other indications that the second proviso’s
waiver authority was not limited to the statutory provisions
embraced by § 586F(c) of the Iraq Sanctions Act. If that is
all it was meant to accomplish, why would Congress not sim
ply have tracked § 586F(c)’s residual clause? Instead of re
stricting the President’s authority to statutes that “impose
sanctions” on sponsors of terror, the EWSAA extended it to
any statute that “applies” to such states. That is undoubt
edly a broader class.
Even if the best reading of the EWSAA proviso were that
it encompassed only statutes that impose sanctions or pro
hibit assistance to state sponsors of terrorism, see Acree, 370
F. 3d, at 54, we would disagree with the Court of Appeals’
conclusion that the FSIA exception is not such a law.
Allowing lawsuits to proceed certainly has the extra benefit
of facilitating the compensation of injured victims, but the
fact that § 1605(a)(7) targeted only foreign states designated
as sponsors of terrorism suggests that the law was intended
as a sanction, to punish and deter undesirable conduct.
Stripping the immunity that foreign sovereigns ordinarily
enjoy is as much a sanction as eliminating bilateral assist
ance or prohibiting export of munitions (both of which are
explicitly mandated by § 586F(c) of the Iraq Sanctions Act).

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The application of this sanction affects the jurisdiction of the
federal courts, but that fact alone does not deprive it of its
character as a sanction.
It may well be that when Congress enacted the EWSAA
it did not have specifically in mind the terrorism exception
to sovereign immunity. The Court of Appeals evidently
found that to be of some importance. Id., at 56 (noting there
is “no reference in the legislative history to the FSIA”).
But the whole value of a generally phrased residual clause,
like the one used in the second proviso, is that it serves as
a catchall for matters not specifically contemplated—known
unknowns, in the happy phrase coined by Secretary of De
fense Donald Rumsfeld. Pieces of Intelligence: The Exis
tential Poetry of Donald H. Rumsfeld 2 (H. Seely comp.
2003). If Congress wanted to limit the waiver authority to
particular statutes that it had in mind, it could have enumer
ated them individually.
We cannot say with any certainty (for those who think
this matters) whether the Congress that passed the EWSAA
would have wanted the President to be permitted to waive
§ 1605(a)(7). Certainly the exposure of Iraq to billions of
dollars in damages could be thought to jeopardize the stat
ute’s goal of speedy reconstruction of that country. At least
the President thought so. And in the “vast external realm,
with its important, complicated, delicate and manifold prob
lems,” Curtiss-Wright Export Corp., 299 U. S., at 319, courts
ought to be especially wary of overriding apparent statutory
text supported by executive interpretation in favor of specu
lation about a law’s true purpose.1
1 The eighth proviso of EWSAA § 1503 says that absent further congres
sional action, “the authorities contained in this section shall expire on
September 30, 2004.” 117 Stat. 579. The Court of Appeals expressed
doubt that Congress would have wanted federal-court jurisdiction to dis
appear for a year and then suddenly return. Acree v. Republic of Iraq,
370 F. 3d 41, 56–57 (CADC 2004). Our analysis of the sunset provision,
see Part V, infra, disposes of that concern.

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C
Respondents advance two other objections to the straight
forward interpretation of the EWSAA proviso. First, in a
less compelling variant of the D. C. Circuit’s approach, the
Simon respondents argue that “section 620A of the Foreign
Assistance Act of 1961 or any other provision of law that
applies to countries that have supported terrorism” means
§ 620A of the Foreign Assistance Act or any other provision
of law cited therein. The provision would thus allow the
President to make inapplicable to Iraq the statutes that
§ 620A precludes from being used to provide support to
terror-sponsoring nations. Not to put too fine a point upon
it, that is an absurd reading, not only textually but in the
result it produces: It would mean that the effect of the
EWSAA was to permit the President to exclude Iraq from,
rather than include it within, such beneficent legislation as
the Food for Peace Act of 1966, 7 U. S. C. § 1691 et seq.
Both respondents also invoke the canon against implied
repeals, TVA v. Hill, 437 U. S. 153, 190 (1978), but that canon
has no force here. Iraq’s construction of the statute neither
rests on implication nor effects a repeal. The EWSAA pro
viso expressly allowed the President to render certain stat
utes inapplicable; the only question is its scope. And it did
not repeal anything, but merely granted the President au
thority to waive the application of particular statutes to a
single foreign nation. Cf. Clinton v. City of New York, 524
U. S. 417, 443–445 (1998).
D
We must consider whether anything in the subsequent
NDAA legislation changes the above analysis. In particu
lar, § 1083(c)(4) of that statute specifically says that “[n]oth
ing in section 1503 of the [EWSAA] has ever authorized,
directly or indirectly, the making inapplicable of any pro
vision of chapter 97 of title 28, United States Code, or
the removal of the jurisdiction of any court of the United

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States.” 122 Stat. 343. This looks like a ratification by
Congress of the conclusion reached in the Acree decision.
Is such a ratification effective? The NDAA is not subse
quent legislative history, as Iraq claims, cf. Sullivan v. Fink
elstein, 496 U. S. 617, 632 (1990) (Scalia, J., concurring in
part); rather, it is binding law, approved by the Legislature
and signed by the President. Subsequent legislation can of
course alter the meaning of an existing law for the future;
and it can even alter the past operation of an existing law
(constitutional objections aside) if it makes that retroactive
operation clear. Landgraf v. USI Film Products, 511 U. S.
244, 267–268 (1994). To tell the truth, however, we are un
aware of any case dealing with the retroactive amendment
of a law that had already expired, as the EWSAA had here.
And it is doubtful whether Congress can retroactively claw
back power it has given to the Executive, invalidating Presi
dential action that was valid when it was taken. Thankfully,
however, we need not explore these difficulties here.
In § 1083(d)(1) of the NDAA, the President was given au
thority to “waive any provision of this section with respect
to Iraq.” 122 Stat. 343. The President proceeded to waive
“all” provisions of that section as to Iraq, including (presum
ably) § 1083(c)(4). 73 Fed. Reg. 6571. The Act can there
fore add nothing to our analysis of the EWSAA. Respond
ent Beaty objects that the President cannot waive a fact.
But neither can Congress legislate a fact. Section 1083(c)(4)
could change our interpretation of the disputed EWSAA lan
guage only if it has some substantive effect, changing what
would otherwise be the law. And if the President’s waiver
does anything, it eliminates any substantive effect that the
NDAA would otherwise have on cases to which Iraq is a
party.2
2 Respondents contend that the NDAA waiver is irrelevant because the
President’s veto of the initial version of the bill—which did not include
the waiver authority—was defective. We need not inquire into that point,
since Congress (evidently thinking the veto effective) enacted a new bill

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IV
Having concluded that the President did render 28 U. S. C.
§ 1605(a)(7) “inapplicable with respect to Iraq,” and that such
action was within his assigned powers, we consider respond
ents’ argument that the inapplicability of the provision does
not bar their claims, since they arise from Iraq’s conduct
prior to the President’s waiver. Any other interpretation,
they say, would cause the law to operate in a disfavored ret
roactive fashion.
This argument proceeds as follows: The FSIA exception
becomes “applicable” to a foreign state when that foreign
state is designated as a sponsor of terrorism. In parallel
fashion, rendering the exception “inapplicable” should be
equivalent to removing the state’s designation. And under
§ 1605(a)(7), jurisdiction turned on the foreign state’s desig
nation “at the time the act [giving rise to the claim] oc
curred.” On this reading, the President’s waiver meant only
that Iraq could not be sued pursuant to § 1605(a)(7) for any
future conduct, even though it technically remained desig
nated as a state sponsor of terrorism.
Respondents support this interpretation with a policy ar
gument and a canon of construction. First, why would Con
gress have sought to give Iraq better treatment than any
other state that saw the error of its ways, reformed its be
havior, and was accordingly removed from the list of terror
sponsoring regimes? See Acree, 370 F. 3d, at 56 (calling
such a result “perplexing”). Providing immunity for future
acts is one thing, but wiping the slate clean is quite another.
Second, this Court has often applied a presumption that, ab
sent clear indication to the contrary, statutory amendments
do not apply to pending cases. Landgraf, supra, at 280. A
that was identical in all material respects but for the addition of Presiden
tial waiver authority. Since that authority would be nugatory, and the
rest of the new law utterly redundant, if a law resulting from the former
bill remained in effect, that law would have been effectively repealed.

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narrow reading of “inapplicable” would better comport with
that presumption.
As a textual matter, the proffered definition of “inappli
cable” is unpersuasive. If a provision of law is “inapplica
ble” then it cannot be applied; to “apply” a statute is “[t]o
put [it] to use.” Webster’s New International Dictionary
131 (2d ed. 1954). When the District Court exercised juris
diction over these cases against Iraq, it surely was putting
§ 1605(a)(7) to use with respect to that country. Without the
application of that provision, there was no basis for subject
matter jurisdiction. 28 U. S. C. §§ 1604, 1330(a). If Con
gress had wanted to authorize the President merely to cancel
Iraq’s designation as a state sponsor of terrorism, then Con
gress could have done so.
As a policy matter, moreover, we do not find that result
particularly “perplexing. ” As then-Judge Roberts ex
plained in his separate opinion in Acree, Congress in 2003
“for the first time confronted the prospect that a friendly
successor government would, in its infancy, be vulnerable
under Section 1605(a)(7) to crushing liability for the ac
tions of its renounced predecessor.” 370 F. 3d, at 61 (opinion
concurring in part and concurring in judgment) (emphasis
in original). The Government was at the time spending
considerable sums of money to rebuild Iraq, see Rogers,
Congress Gives Initial Approval for War Funding, Airline
Aid, Wall Street Journal, Apr. 4, 2003, p. A10. What would
seem perplexing is converting a billion-dollar reconstruction
project into a compensation scheme for a few of Saddam’s
victims.
As for the judicial presumption against retroactivity, that
does not induce us to read the EWSAA proviso more nar
rowly. Laws that merely alter the rules of foreign sover
eign immunity, rather than modify substantive rights, are
not operating retroactively when applied to pending cases.
Foreign sovereign immunity “reflects current political reali
ties and relationships,” and its availability (or lack thereof)

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generally is not something on which parties can rely “in
shaping their primary conduct.” Republic of Austria v.
Altmann, 541 U. S. 677, 696 (2004); see also id., at 703
(Scalia, J., concurring).
In any event, the primary conduct by Iraq that forms the
basis for these suits actually occurred prior to the enactment
of the FSIA terrorism exception in 1996. See Saudi Arabia
v. Nelson, 507 U. S. 349, 351 (1993). That is, Iraq was im
mune from suit at the time it is alleged to have harmed re
spondents. The President’s elimination of Iraq’s later sub
jection to suit could hardly have deprived respondents of any
expectation they held at the time of their injury that they
would be able to sue Iraq in United States courts.
V
Accordingly, the District Court lost jurisdiction over both
suits in May 2003, when the President exercised his author
ity to make § 1605(a)(7) inapplicable with respect to Iraq.
At that point, immunity kicked back in and the cases ought
to have been dismissed, “the only function remaining to the
court [being] that of announcing the fact and dismissing the
cause.” Ex parte McCardle, 7 Wall. 506, 514 (1869).
In respondents’ view, that is not fatal to their claims.
They point to the eighth proviso in § 1503 of the EWSAA:
“Provided 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 as
sistance for Iraq and that specifically amends, repeals
or otherwise makes inapplicable the authorities of this
section, whichever occurs first.” 117 Stat. 579.
The effect of this provision, they contend, is that the
EWSAA waiver expired in 2005,3 and that when it did so
§ 1605(a)(7) was revived, immunity was again stripped, and
3 The sunset date was extended by one year in a later bill. § 2204(2),
117 Stat. 1230.

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jurisdiction was restored. If that is true, then at the very
least they ought to be permitted to refile their suits and
claim equitable tolling for the period between 2005 and the
present, during which time they understandably relied on
Acree’s holding.
The premise, however, is flawed. It is true that the “au
thorities contained in” § 1503 of the EWSAA expired, but
expiration of the authorities (viz., the President’s powers to
suspend and make inapplicable certain laws) is not the same
as cancellation of the effect of the President’s prior valid ex
ercise of those authorities (viz., the restoration of sovereign
immunity). As Iraq points out, Congress has in other stat
utes provided explicitly that both the authorities granted
and the effects of their exercise sunset on a particular date.
E. g., 19 U. S. C. § 2432(c)(3) (“A waiver with respect to
any country shall terminate on the day after the waiver
authority granted by this subsection ceases to be effective
with respect to such country”). The EWSAA contains no
such language.
We think the better reading of the eighth EWSAA proviso
(the sunset clause) is that the powers granted by the section
could be exercised only for a limited time, but that actions
taken by the President pursuant to those powers (e. g., sus
pension of the Iraq Sanctions Act) would not lapse on the
sunset date. If it were otherwise, then the Iraq Sanctions
Act—which has never been repealed, and which imposes a
whole host of restrictions on relations with Iraq—would
have returned to force in September 2005. Nobody believes
that is so.
* * *
When the President exercised his authority to make inap
plicable with respect to Iraq all provisions of law that apply
to countries that have supported terrorism, the exception to
foreign sovereign immunity for state sponsors of terrorism
became inoperative as against Iraq. As a result, the courts
below lacked jurisdiction; we therefore need not reach Iraq’s

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alternative argument that the NDAA subsequently stripped
jurisdiction over the cases. The judgments of the Court of
Appeals are reversed.
It is so ordered.