Friday, October 02, 2009

The Long Path to Nowhere: Suing State Sponsors of Terrorism by IPT

Over the past decade, victims of terrorist attacks have taken to federal courts in an attempt to hold state sponsors of terrorism civilly liable—a practice that has become nothing more than a "meaningless kabuki dance," the chief U.S. District Court judge in Washington writes in a recent opinion. Calling this system of justice a "failed policy," Judge Royce Lamberth called upon Congress and the President to reexamine the laws permitting these suits to consider whether there might be a viable alternative to private litigation.

The Foreign Sovereign Immunities Act ("FSIA") allows foreign governments to be sued if they are engaged in acts of terrorism, either directly or through the provision of "material support or resources." When this law was passed, the popular sentiment was that "terrorism victims were going to 'sue the terrorists out of business.'"

A decade later, hundreds of claims representing thousands of victims have been brought against Iran seeking compensatory and punitive damages for the rogue nation's support for terrorist organizations such as Hamas and Hizballah. The combined results of these suits have been judgments totaling $9 million. As the court points out, however, these are nothing but pyrrhic victories, with victims seldom - if ever - able to recover their damages.

The court's 191-page opinion is dedicated to laying out the substantive hurdles victims of terrorism face, from the technical application of the Federal Rules of Civil Procedure to more complicated "separation of powers" issues. In the case of Iran, the assets are simply unreachable. Based on a recent estimate, Iranian assets in the United States total $45 million, a mere drop in the bucket compared to the judgments entered against it. As Judge Lambert explained in detailing the problem, courts have tried "with very little success, to locate and attach Iranian government assets in aid of their execution of their civil judgments."

Although the instant opinion dealt solely with the challenges facing victims of terrorism who bring suit under the FSIA, those who file under the Anti-Terrorism Act ("ATA") against individuals who provide "material support or resources" face similar hurdles to enforcing judgments. Just as "the overwhelming majority of successful FSIA plaintiffs with judgments against Iran still have not received the relief," ATA plaintiffs likewise have been denied justice.

In light of these concerns, the court called upon the government, both Congress and the President, to work towards meaningful reform of the FSIA. Although he proposed the creation of an administrative agency-style commission, Judge Lamberth explained that reform should be undertaken by the political branches of government, rather than the courts.

The court properly recognized the need for reform. The current system of justice is simply untenable. As the court warned, "as long as civil litigation is a means by which our political branches choose to redress the harms suffered as a result of terrorism . . . the victims in these cases will continue to be unwitting participants in a meaningless charade."

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