In Iranian Funds Case, Justices Ponder Extent Of Congressional Influence

By Nina Totenberg

Published January 13, 2016 at 3:42 PM CST

Rescuers search through the rubble of the U.S. Marine barracks Oct. 23, 1983, in Beirut, Lebanon, after a suicide truck bombing. The blast — the single deadliest attack on U.S. forces abroad since World War II — killed 241 American service members. The Supreme Court is deciding whether Congress can pass a law compensating the victims, and those of other attacks, using Iranian government funds.

The litigants in the U.S. Supreme Court Wednesday were a remarkable bunch: On one side, the Central Bank of Iran. On the other, the victims of Iran-sponsored terrorist attacks going back three decades.

The constitutional question: Whether Congress — in dealing with both — had infringed on the independence of the judiciary.

In 2012, President Obama froze nearly $2 billion the Iranian central bank had concealed illegally in an account in New York. Congress then amended an existing anti-terrorism law to strengthen it. The new law specified those funds were to be used to pay off the court judgments that found Iran responsible for 19 separate terrorist attacks against Americans around the world.

The first of those cases was brought on behalf of the families of 241 American servicemen killed in the 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon.

"Thirty-three years ago I was a young, 20-year-old marine ... blown up in the building and buried for two hours," said Paul Rivers, one of the 30 survivors of the attack. Now 53, he is frustrated by the decades-long legal battle.

"This has been an emotional roller coaster ride for me, because my friends are gone." Rivers said — adding that the world we live in today, with so many terrorist threats, began with the Beirut attack.

Lynn Smith Derbyshire stood with Rivers, holding a photo of her brother, Capt. Vincent Smith, who was killed in Beirut.

"We need to send a message to terrorist nations that they have to pay for their crimes, " she said.

Inside the Supreme Court chamber, the debate was not about whether Iran should pay, but whether Congress had unconstitutionally infringed on the judiciary's job by directing the outcome of particular cases, even listing the docket numbers of those cases in the legislation.

Lawyer Jeffrey Lamken — representing Bank Markazi, the Central Bank of Iran — said it didn't matter whether there was one case or 19: Congress had violated the Constitution by enacting a statute for one set of plaintiffs.

Justice Antonin Scalia asked: "Where do you get the notion that Congress can only act by generality? It acts all the time on individual matters."

Lamken insisted that this law is unique, contending that never before in the nation's history has Congress passed such a statute.

Congress crossed the line here, Lamken asserted, because there is a single defendant, the Central Bank of Iran.

Justice Stephen Breyer wryly noted that this single defendant represents 100 million people.

Justice Elena Kagan suggested that the political branches, the president and Congress deserve particular deference in matters of foreign affairs, especially when they act together.

They don't, said lawyer Lamken. If you uphold this law, he told the justices, "the lesson it teaches ... is, if you want to win your case in court, don't hire a lawyer; hire a lobbyist."

Chief Justice John Roberts seemed to have the same concern when former Solicitor General Ted Olson, whose own wife was killed in the Sept. 11 attacks, took to the lectern.

"You know," said the Chief Justice, "there are places in the world where courts function just the way our courts do — except every now and then when there's a case the strongman who runs the country is interested in ... and he picks up the phone and he tells the court, 'you decide this case this way.' "

Said Roberts: "I'm not sure I see what the difference is here."

Olson contended that the lower courts had found Iran liable for damages for its role in these attacks. The only thing this law deals with, he asserted, is executing those judgements — actually getting the money damages.

But, Roberts said, wouldn't that argument mean Congress can tell the Supreme Court how to rule in a specific case?

Justice Kagan picked up that thread when Deputy Solicitor General Edwin Kneedler rose to defend the statute. Since 1801, he told the justices, this vourt has said that Congress may amend the law and make it applicable to pending cases.

But, asked Kagan, could Congress — without actually naming the winner — amend the law in such a way that it's clear who actually will be the winner?

"If Congress is amending the law, it can do that," Kneedler replied.

Chief Justice Roberts replied caustically: "You're saying Congress has to be cute about it." They can't say that Smith wins his case in Smith v. Jones, but they can change the law to make sure Smith wins.

Justice Breyer, borrowing some of the Chief Justice's language, observed with a small smile that "Congress has 4,000 ways of being cute, and I can't quite see this court trying to police those ways."