Extract
Enlisting the U.S. Courts in a new front: dismantling the international business holdings of terrorist groups through federal statutory and common-law suits.
ABSTRACT
The time has come to extend the national approach that has been used successfully to dismantle the infrastructure of hate groups to the international realm against terrorist groups. The foundation of this approach is a private right to a cause of action apart from any military or diplomatic efforts by the government. In this Article, Professor Strauss analyzes case precedents under several federal statutes--the Antiterrorism Act of 1991, the Antiterrorism and Effective Death Penalty Act of 1996, the Torture Victim Protection Act, the Alien Tort Claim Act--as well as state common-law tort claims, including aiding and abetting liability. Professor Strauss proposes an aggregate model for lawsuits by victims against terrorist groups, organizations, and state sponsors of international terrorism, combining these claims and the types of damages and defendants accessible. Professor Strauss also outlines important tools for plaintiffs in the civil battle against terrorism by exploring the obstacles to and avenues for enforcement of these judgments through the rule of international law and access to the frozen assets of terrorist states and organizations. TABLE OF CONTENTS I. INTRODUCTION II. AN ANALYSIS OF CASE PRECEDENTS A. Antiterrorism Act of 1991 1. The Seminal Case: Boim v. Quranic Literacy Institute 2. A Modern View of "International Terrorism": Estates of Ungar v. The Palestinian Authority 3. No Sovereignty for the PLO: Knox v. Palestine Liberation Organization 4. A Limitation on Personal Jurisdiction: Biton v. Palestinian Interim Self-Government Authority 5. Defining the Scope of Coverage and Damages: Smith v. Islamic Emirate of Afghanistan B. AEDPA Section 1605(a)(7) and the Flatow Amendment to the FSIA 1. A Door Opens for Victims: Flatow v. Islamic Republic of Iran and Its Progeny 2. A Partial Ban on Punitive Damages: Alejandre v. Republic of Cuba 3. A Cause of Action Against a Foreign State for Torture: Price v. Socialist People's Libyan Arab Jamahiriya 4. A Clarification of the Elements: Kilburn v. The Republic of Iran 5. Punitive Damages for an Extrajudicial Killing: Campuzano v. Islamic Republic of Iran 6. A Contrasting View of Punitive Damages: Dammarell v. Islamic Republic of Iran 7. Providing an Independent Claim Against a Foreign State and Broad Personal Jurisdiction: Pugh v. Socialist People's Libyan Arab Jamahiriya 8. Reining in a Private Cause of Action and Setting New Limits: Cicippio v. Islamic Republic of Iran and Its Progeny C. Other Federal Statutes: Torture Victim Protection Act and Alien Tort Claim Act D. Common-Law Tort Claims E. A Potpourri of Claims: The Recent 9/11 Case III. ENFORCEABILITY OF JUDGMENTS A. General Principles of International Law B. Executive Orders and Resistance C. Collecting the Frozen Assets: The Victims of Trafficking and Violence Protection Act of 2000 and the Terrorism Risk Insurance Act of 2002 1. The Victims of Trafficking and Violence Protection Act of 2000 2. The Terrorism Risk Insurance Act of 2002 IV. CONCLUSION I. INTRODUCTION International terrorism has long been recognized as a serious threat to foreign and domestic security. A recent report of the Department of State shows minimal change from 2002 to 2003 in the number of terrorist incidents worldwide--a decrease from 199 attacks to 190. (1) Likewise in 2003, the overall number of reported anti-U.S. attacks remained more or less constant, with eighty-two anti-U.S. attacks in 2003 compared with seventy-seven attacks in the previous year. Worldwide deaths from terrorist activity decreased roughly 58 percent from 2002 (from 725 to 307), and the number of wounded was down roughly 21 percent from 2,013 to 1,593. (2) The report emphasizes that most of the attacks in 2003 that have occurred during Operation Iraqi Freedom do not meet the U.S. definition of international terrorism because they were directed at combatants, who are considered to be "American and coalition forces on duty." (3) As the numerical tally in the report is being revised and corrected, the overall number of incidents, deaths, and casualties reported is expected to be higher. (4) Of course, the numbers do not convey the entire picture, because each of these individual victims of terrorism has his or her own story of tragedy, and the effect on victims' families and the nation as a whole is incalculable. A modern trend in terrorism is toward loosely organized, international networks of terrorists and cross-national links among different terrorist organizations, which may involve combinations of military training, funding, technology transfer, or political advice. Terrorists have been able to develop their own sources of funding, ranging from nongovernmental organizations and charities to illegal enterprises, such as narcotics, extortion, and kidnapping. (5) The report acknowledges that because "terrorism is a global phenomenon, a major challenge facing policymakers is how to maximize international cooperation and support, ...See the full content of this document
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