[ CORRECTIONS ]
"I think people aren’t nearly as cool as they pretend to be at naked parties, but whatever, I’m a pessimist."
-- Birk Oxholm, The Naked Truth
Taking Terrorism to Court
Judith Heistein
Using the courts to settle disputes is a long-time American tradition. In recent years, a new type of plaintiff has approached the bench—the loved ones of victims of terrorism. Parents, wives, and siblings in mourning have come before the courts and asked that terror-sponsoring countries be found guilty of causing their loved one's death. Indeed, these families are not suing those who helped plan the attacks, and they are not pointing to the organizations that organized the acts of terror. Instead, they are asking that U.S. courts bring entire countries to justice. The courts are complying. Justice, however, has yet to be defined. These cases have revealed tensions in navigating the path to justice, tensions which cross seas, continents, and party lines. This is not a partisan issue, it is an American issue—how to best achieve justice, how to best compensate those who have lost so much. Justice as a goal has been ever-present in American society, yet the path to it has never seemed so foggy.
While the court decisions seem to follow the purpose of the American justice system, they are far from effective. The most popular defendant in these cases is Iran; too bad it never shows up to court. None of the families who have been awarded millions of dollars have received a single penny from Iran—it is difficult to collect money from a country with which you have no diplomatic relations. Thus, the motivation behind suing a country like Iran can only be understood as a loved ones quest for justice. And, indeed, the ability to sue a sovereign state is the result of one father's search for justice.
After graduating Brandeis University, Alisa Flatow spent a year studying in Israel. While traveling to the Gaza strip, Alisa was killed when the bus she was riding on was blown up by a suicide bomber. After leaving his New Jersey home to bury his daughter in Israel, her father, Stephen Flatow, was informed that the bomber had been a member of Islamic Jihad, a terrorist group which receives funding from Iran. Thus began Flatow's frustrating search for justice, a search which ultimately changed American foreign policy.
From 1976 to 1996, the Foreign Sovereign Immunities Act (FSIA) included only three instances in which a state has no immunity: 1) when a state waives its immunity; 2) when a state causes injuries from its commercial activity conducted in the United States or which have effected the United States; and 3) cases of tortuous injury within the United States. The only real context in which one could sue a country for physical wrongdoing was when it occurred in the United States. In 1996, largely due to Flatow's efforts, the United States amended FSIA with the Anti-terrorism and Effective Death Penalty Act (AEDPA). This legislation strips a country of its immunity if it is shown to have sponsored terrorism. Thus, a country's immunity is revoked when:
[M]oney damages are sought 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 material support or resources for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment or agency.1Congress limited the applicability of the legislation to cases in which the country was on the State Department's List of State Sponsors of Terrorism at the time of the incident (in 1996: Cuba, Iran, Iraq2, Libya, North Korea, Sudan and Syria), and the claimant or the victim is a United States national. Also, the country in which the incident occurred is permitted to arbitrate the case first.3 Therefore, if a country, such as Saudi Arabia, was found to have financial connections to terrorist organizations, it could not be sued because it is not on the State Department's list of State Sponsors of Terror.
The FSIA enabled United States citizens to sue for compensatory damages and receive the victim's projected lifetime earnings as well as funds for funeral expenses. This compensation is never large enough to substantially affect the country being sued. Stephen Flatow's belief that the court should significantly deplete a defendant country's assets led him to lobby Congress to allow citizens to sue for punitive damages as well. By allowing citizens to sue for punitive damages, which account for the emotional toll the victims and their families endured, families could sue countries for large sums of money which could significantly reduce the country's financial capabilities, thus punishing the country.
In a testament to his efforts, in 1996, Congress also added the "Civil Liability for Acts of State Sponsored Terrorism," better known as the "Flatow Amendment," to the AEDPA, which permitted families to sue countries for punitive damages. From the court's statement in Flatow v. Iran, a case which was the direct result of the AEDPA and the Flatow Amendment, clearly the court believed its decisions could deter terrorists. The court stated:
This Court is cognizant that the purpose of the statute is to deter acts of terrorism …in order to ensure that the Islamic Republic of Iran will refrain from sponsoring such terrorist acts in the future, an award of punitive damages in the amount of three times the Islamic Republic of Iran's annual expenditure for terrorist activities is appropriate.4The court ordered that Iran pay the Flatows $252 million in punitive damages. What did the court's judgment actually do? Nothing. Iran should pay the Flatows $252 million. Add that to the list of things Iran should do. What is the point of the court's judgment? Clearly a verdict of guilty would not an adequate statement of Iran's guilt, or the Flatow Amendment would not be necessary. The judgment leaves the plaintiffs chasing Iranian assets within the United States. As the Flatows and others have found, having another country's money means having leverage over that country, leverage that U.S. Presidents are not willing to give up.
The Clinton Administration hindered the Flatows' efforts at each advance they made. When the Flatows attempted to obtain their compensation from frozen Iranian assets in the United States,5 the Administration asserted that frozen assets were often used as leverage when negotiating with foreign states and therefore the assets could not be given to the Flatows.6 Additional attempts by Congress to compensate the Flatows using Iranian property were stymied by the Administration's belief that it was not "in the interest of United States national security."7 The justice one family sought was trumped by national interests. The path to justice for these families becomes all the more twisted and seemingly unachievable. Many in Congress were frustrated with the President's actions. Congressman Jim Saxton (R-NJ) expressed his sentiments on the House floor: "Our State Department and our Justice Department were fighting against our efforts to help the Flatow family cause a price to be paid by Iran…our government was protecting the right of the state of Iran rather than the rights of the Flatow family." 8
There was one instance in which the new amendment did bring some semblance of justice. On December 21, 1988, Pan Am Flight 103 exploded over Lockerbie, Scotland. The 259 people on board and 11 more on the ground were killed. After the two Libyan agents responsible for the bomb were indicted for this terrorist act, the families of the victims wanted the Libyan government, which had provided funding for the agents, held responsible as well. In 1994, Denice Rein, whose husband was aboard the plane, sued the Libyan government. Libya contested the charges, claiming that a United States court did not have jurisdiction to sue it under FSIA, and the court was forced to rule in Lybia's favor.9
Two years later, the AEDPA enabled the Reins and other families to file a new suit against Libya, Rein v. Socialist Peoples Libyan Arab Jamahiriya. Under the Flatow amendment, Libya no longer had immunity, as it was on the State Department's list of State Sponsors of Terror at the time of the incident. In an effort to resolve the lawsuit, Libya offered to pay $2.7 billion to families of the victims, which amounted to $10 million per family. Of course there were conditions for this payment: "Under the offer Libya would pay $4 million for each victim when United Nations sanctions were lifted, $4 million when American sanctions were removed, and $2 million when the United States took Libya off the list of states that sponsor terrorism."10 The United States' international policy was weighed against the ideal of bringing justice to the families of victims. On September 21, 2004 Bush lifted sanctions on Libya, allowing the families of the victims of Pan Am 103 to be paid. He kept Libya on the list of state sponsors of terror. As a result of the court case the Libyan government was held responsible for its actions and was forced to pay each family $10 million.
On the surface, this case proves what kind of justice is possible when implementing the AEDPA. Actually, the U.S. used a carrot and stick to deal with a terrorist state. Since September 11, 2001, the United States has not been inclined to negotiate with the sponsors of terror (unless you count Saudi Arabia). In obtaining justice by negotiating with those who conspired against us, justice becomes a qualified accomplishment. In this case the path to justice was paved with injustice.
While Libya and Iran make justice seem ephemeral, the relationship between the United States and Iraq seems to pervert justice. After the United States backed toppling of Sadam Hussein's regime, the Bush Administration removed Iraq from the State Department's list of State Sponsors of Terror.11 Families of victims of past Iraqi atrocities were still able to sue Iraq because Iraq was on the State Department's list at the time of the incidents. In May 2003 the Soulas and Smith families sued Iraq for its involvement in 9/11. The court held that "the opinion testimony of the plaintiffs' experts is sufficient to meet plaintiffs' burden that Iraq collaborated in or supported Bin Laden/Al Qaeda's terrorist acts of September 11."12 The court ordered both Al Qaeda and the Iraqi government to each pay the Smiths around $4.5 million and decreed that the Soulases should receive $36 million from Al Qaeda and $39 million from the Iraqi government.13 Since Iraq's government has been overthrown since the time of the court's decision, it would seem that the Smith and Soulas families should be awarded the money from the $1.5 billion of frozen Iraqi assets that the United States controls. Bush, however, has prevented families who have sued Iraq from using Iraqi assets to collect compensation, asserting that the Iraqi funds in the United States be reserved for rebuilding Iraq., except for $300 million that was set aside for Americans who were seized as human shields by Saddam at the start of the Persian Gulf War in 1990. 14
As verdicts continue to be handed down to families of victims, the government's national concerns continue to regard the interests of the claimants like Soulas and Smith as interfering, rather than coinciding, with national interests. The court's decision offers only a fleeting possibility of justice. The situation in Iraq is complicated and the burgeoning government will need as much money as it can get. With the old regime down, are the past sins of the country erased? In the minds of the Soulas and Smith families the only things erased are the lives of their loved ones.
We are left with Iran's compounding debts and two divergent paths to justice. The definition of justice versus policy portrayed as justice is yet to be determined. The ray of light which the Libya case presents us with is overshadowed by the reality of negotiating with terrorist countries. While Libya reached out to us to end United States sanctions against it, should we have opened our hand to accept its payment? The exchange is clear—the victims received their compensation but at a high price.
Iraq presents an alternative—that of destruction, followed by reconstruction. With the eradication of the old government comes the recognition of its sins and the obliteration of its debt. Somewhere amidst the debris there might be justice for those who have suffered at the hand of the old regime.
The goal of justice has been clear throughout American history; the question of how to obtain it is still left unanswered.
1Congress of the United States, General Exception to the Jurisdictional Immunity of a Foreign State
(accessed 11 December 2005), available at http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=28&sec=1605; Internet.
2 Iraq has recently been removed from the list; however, at the time of the AEDPA it was considered a sponsor of terrorism.
3 David Ackerman, Suits Against Terrorist States( Congressional Research Service: The Library of
Congress, January 25, 2002, accessed 11 December 2005) available from http://fpc.state.gov/documents/organization/8045.pdf; Internet.
4 Flatow v Iran, CA No, 97-396 (RCL) 1998 U.S. Dist. LEXIS 2795 (D.D.C. March 11, 1998).
5 During of the hostage crisis in 1979, Iranian assets within the U.S. were frozen as a result of the International Emergency Economic Powers Act. Though most had been returned under the Algiers Accords, the United States still retained $347.5 million.
6 Ackerman 8, 25
7 Emily Gottlieb and Joanne Doroshow, Restoring Shattered Lives: A Primer on War, Terrorism and the U.S. Civil Justice System (New York: Center for Justice and Democracy, 2001 accessed 11 December 2005); available from http://www.centerjd.org/press/release/011101.htm; Internet
8 Congressional Record, Retribution for State Sponsored Terrorism, August 7, 1998.
9 Rein V Socialist Peoples Libyan Arab Jamahiriya Docket No. 98-7467, 1998 U.S. App. Lexis 31233
(DDC December 15, 1998)
10 Mathew L. Walk, "Libya is Offering to Pay $2.7Billion for Pan Am Blast," The New York Times, May
29, 2002, available from
http://select.nytimes.com/search/restricted/article?res=F30C13FB3A5F0C7A8EDDAC0894DA404482; Internet.
11 Elsea, 64
12 Smith v. Islamic Emirate of Afghanistan, 01 Civ. 10132 (HB) , UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK , 262 F. Supp. 2d 217; 2003 U.S. Dist. LEXIS 7629; 62 Fed. R. Evid. Serv. (Callaghan) 106, May 7, 2003 , Decided, May 7, 2003, Filed, As Amended May 16, 2003. Although the court found substantial proof that there was a connection between Iraq and Osama Bin Laden, the information upon which they made this decision has subsequently been discredited.
13 Ibid
14 Martin Kasindorf, "Some 9/11 Families Reject Federal Fund and Sue," USA Today, July 13, 2003, available from www.usatoday.com
JUDITH HEISTEIN is a Barnard junior majoring in political science. She has previously served as a co-chair of Columbia Students for Israel. She is the Managing Editor of The Current.