Suits Against Terrorist States

1. Ashley Edwards And Katie Frawley Suits Against Terrorist States

2. Two–Fold Issue • 1) Should victims of terrorist acts be allowed to bring lawsuits against State sponsors of terrorism • 2) How do victims collect compensation awarded in lawsuits against State sponsors of terrorism

3. History/Context • Foreign Sovereign Immunities Act (FSIA) • Lists circumstances under which the foreign sovereign immunity of a State will not be recognized by US federal courts • When foreign sovereign immunity is not recognized, US courts can exercise jurisdiction over disputes and treat foreign States as private entities

4. History/Context • 1996 Amendment to FSIA • Anti-Terrorism and Effective Death Penalty Act Foreign States no longer immune from US Court jurisdiction in cases in which: “money 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 an 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”

5. History/Context • State must be designated as a State sponsor of terrorism CURRENT PAST Cuba (1982) Iran (1984) Sudan (1993) Syria (1979) Iraq Libya North Korea Source: US State Dept.

6. History/Context • 1996 FSIA Amendment also held terrorist States liable for compensatory damages • Civil Liability for Acts of State-Sponsored Terrorism = Flatlow Amendment • Created cause of action for suits against officials, employees, and agents of the States ISSUE 1 INITIALLY ADDRESSED: GROUND WORK CREATING ABILITY OF VICTIMS TO SUE STATE SPONSORS OF TERRORISM

7. History/Context • Initial cases against Cuba and Iran (1997-1998) • Judgments by default • Alejandre v Republic of Cuba ($50m/$137.7m) • Flatow v Islamic Republic of Iran ($27m/$225m) • Cicippio v Islamic Republic of Iran ($65m) ISSUE 2: Victims unable to collect damages and compensation

8. History/Context • Problems with collecting • Foreign State does not recognize US court jurisdiction • Frozen assets and diplomatic properties • Use opposed by Administration • Protect diplomatic and consular properties • Blocked use of frozen assets • Fear of reciprocal actions against the US

9. History/Context • 1999 Victims of Terrorism Act • Allowed compensation from all assets of a terrorist State • Blocked assets • Diplomatic and consular properties • Moneys due from the United States

10. History/Context Direct courts to ignore the separate legal status of States, overturning Supreme Court precedent, corporate law, and int’l practice Blocking assets is significant economic sanctions tool in combating terrorism 5 Negative Effects of Collecting Compensation From Assets Violates international treaty obligations to protect and respect diplomatic and consular property Create a race to the courthouse – benefit one small group over a larger group Breach the United States Government’s sovereign immunity from attachment

11. History/Context • On going issues – ability to sue and ability to collect compensation • Other cases involving these issues • Iran Hostages • 9/11 Victims • Former US POWS in Iraq • Farzin Ferdowsi

12. History/Context • Iran Hostages • FSIA amendment retroactive to 1979 • Algiers Accord • Obama Administration

13. History/Context • 9/11 Victims • Pan Am Flight 103 reference (Libya) • 1,400 plaintiffs in Manhattan federal court • Problems collecting $64 million award

14. History/Context • Former US POWS in Iraq • 17 Americans from first Gulf War and families • Problems collecting $1 billion in damages • Plaintiffs prevented from collecting by court of appeals • Failure to state a valid cause of action against Iraq • Saddam Hussein has immunity for official conduct

15. History/Context • Farzin Ferdowsi (9/19/2009) • Suit against Iran in 2006 for torture and execution of father in 1981 • State sponsor of terrorism classification • Federal judge denied suit

16. Past Proposed Legislation • 105th Congress: Cuba and Iran • Did not recognize jurisdiction of The US court suits and refused to appear in Court. • 106th Congress: “Justice for Victims of Terrorism Act” • Attachment of all assets of terrorist states • 107th Congress: President Bush • Comprehensive program to ensure fair, equitable, and prompt compensation for all US Victims of International terrorism

17. Past Proposed Legislation • 108th Congress: Administration proposal Introduced by Senator Lugar • DSST’s blocked assets would be unavailable • POW’s (Prisoner of War Protection Act) • 109th Congress: DOJ • Halt efforts to block compensation for torture • Payment of $1m to seventeen plaintiffs

18. Proposal Completely ELIMINATE lawsuits against State sponsors.

19. Analysis of Proposal Why Eliminate? • Foreign States don’t recognized U.S. court systems • Seized funds are severely inadequate to pay US victims who have won judgments in U.S. courts. • Presidential waiver stipulation in the FSIA

20. Analysis of Proposal Why Eliminate? • Permitting lawsuits against state sponsors of terrorism to be tried in US courts severely jeopardizes the separation of powers doctrine. • Questions in the fairness of proceedings. • US could become vulnerable to retaliation.

21. Pros & Cons • Save time, energy and resources. • Protect American properties abroad. • (NO)Insufficient funds in a result to try to compensate every victim • Victims will be highly against the elimination of suing DSST. • Sovereign Immunity as a defense will stay in place.

22. Positions of parties and interest groups • State Department: has consistently sided with the President in refusing to allocate seized assets to be used in paying judgments-that enabling the US Treasury to pay settlements gives the US greater coercive collecting power. • Victims: Disappointed. Will not have the ability to sue, however compensation was very minimum and winning by default rulings.

23. Positions of parties and interest groups • Administration: (Advantage) The cases and pursuits of compensation would no longer interfere with their foreign policy and diplomatic goals. • Foreign States: (In-Favor) Fewer worries about consular and diplomatic properties in jeopardy.

24. Domestic Consideration • The Presidential waiver enables the executive to refuse release of frozen assets in the name of national security. • US Treasury paid more than $350 million to victims. • Seized assets to pay settlements diminishes the leveraging power of the US. • Less problematic to foreign policy

25. International Consideration • Call for an “Independent national body for counterterrorism” • Eradicate inefficiencies and remove overlap among all current bodies • Maintain funding and enforcement judgments.

26. Summary/Conclusion • The Foreign Sovereign Immunities Act (FSIA) of 1976 and it’s subsequent amendments permit restricting sovereign immunity to those nations who support terrorist activities, but have raised issues as to whether suits against these states should be allowed and how victims will be compensated if the suits do take place. Congress has tried to address these issues, however, the Administration in power continually fights them due to conflicts with international intentions and obligations. Therefore eliminating the FSIA will address the issues that Congress has yet to be successful with and protect foreign policy. The US should still continue to go after and put on trial the terrorists involved in terrorist attacks, but suing State Sponsors only seems to be superficial vindication for victims.

27. Reference Ackerman, D. (2002, January). CRS Report for Congress. “Suits Against Terrorist States.” Retrieved September 2009 From http://fpc.state.gov/documents/organization/8045.pdf. Elsea, J. (2005, April). CRS Report for Congress. Retrieved September 2009 From http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RS2209404042005.pdf. Elsea, J. (2008, July). CRS Report For Congress. “Lawsuits Against State Supporters of Terrorism.” Retrieved September 2009 From http://assets.opencrs.com/rpts/RL31258_20080731.pdf. Jeewon, K. (2004, Oct). Berkeley Journal of International Law. “Making State Sponsors of Terrorism Pay: A Separation of Powers Discourse Under the Foreign Sovereign Immunities Act.”

28. References Goodenough, P. (2009, April). Carter Era Agreement Again Cited in Bid to Block Iran Hostage Lawsuit. Retrieved September 2009 from http://cnsnews.com/news/print/47064. Carey, C. (2009, September). Nashville Man Can’t Sue Iran for Father’s Death. Retrieved September 2009 from http://www.tennessean.com/apps/pbcs.dll/article?AID=/20090919/NEWS03. Silverman, J. (2002, August). Tough Task for 11 September Lawyers. Retrieved September 2009 from http://news.bbc.co.uk/2/hi/americas/2199633.stm. 11 September Victims Sue Iraq. (2002, September). Retrieved September 2009 from http://news.bbc.co.uk/2/hi/americas/2237332.stm.