Liability Under the Anti-terrorism Exception to the Foreign Sovereign Immunities Act

• Jurisdiction: United States,Federal
• Publication year: 2008
• Citation: Vol. 11 No. 2

Gonzaga Journal of International Law Volume 11 - Issue 2 (2007 - 2008)

LIABILITY UNDER THE ANTI-TERRORISM EXCEPTION TO THE FOREIGN SOVEREIGN IMMUNITIES ACT: AN EXPANDING DEFINITION OF "MATERIAL SUPPORT OR RESOURCES"

DANIEL BRYER*

I. Introduction

"We will make no distinction between the terrorists who committed these acts and those who harbor them."[1] This was the battle cry of President George W. Bush after the horrific terrorist attacks of September 11, 2001, which left over 5,000 Americans dead and the epicenter of world trade in ruins. While President Bush has since brought the full military might of the United States Armed Forces to bear on those who harbor terrorists, he has neglected to provide U.S. courts with the legal firepower to effectuate his September 11th pledge.

Currently, the exclusive method for establishing subject matter jurisdiction over a foreign State is through the Foreign Sovereign Immunities Act ("FSIA" or "Act").[2] The Act includes a recent amendment which permits U.S. courts to maintain jurisdiction over a foreign State where that State engages in an act of terrorism or provides "material support or resources" to a terrorist organization.[3] While the definition of "material support or resources" encompasses a wide variety of acts, it noticeably omits the most basic need of any terrorist organization - safe haven. Without a safe haven, terrorist organizations such as Al-Qaeda would be completely bereft of any structure or security, and incapable of plotting massive and devastating attacks such as September 11th or the 2004 bombings in Madrid. As such, countries that provide terrorist organizations with a staging ground for breeding terrorist plots are just as guilty as those who provide "material resources" within the current definition. Therefore, the scope of "material support or resources" must, and appears to be, moving toward an expansion to include "harboring" in its already extensive categorical reach.

This article will examine the current definitional status of "material support or resources" and address whether providing safe haven or sanctuary to terrorist organizations is, and should be, sufficient to confer subject matter jurisdiction under the FSIA. Part II of this article briefly outlines the history and evolution of foreign sovereign immunity in the United States. Part III analyzes recent U.S. federal court decisions, which assert that harboring terrorist organizations is included in the purview of "material support or resources." Finally, Part IV discusses the constitutional and precedential implications of these decisions, and considers the potential influence of an express amendment to include "harboring" as an action sufficient to confer subject matter jurisdiction under the FSIA.

II. History of Foreign Sovereign Immunity in the United States

The law of foreign sovereign immunity in the United States has undergone a birth, rebirth, and codification over the course of its almost two-hundred year existence. From its early common law beginnings under the absolute and then restrictive theories of immunity to its current statutory form, the legal and theoretical principles underlying foreign sovereign immunity have adapted to the ever-changing jurisprudential undertones of the United States.

A. Doctrine of Absolute Immunity: "The King Can Do No Wrong"

The underlying rationale behind the doctrine of absolute immunity stems from the surviving feudal principle that the King, who embodied the State, could do no wrong.[4] Absolute foreign sovereign immunity stands for the ideal that "foreign sovereigns are entitled to immunity from suit in the United States with respect to . . . their public governmental acts as well as their private commercial acts."[5] In the landmark 1812 decision Schooner Exchange v. McFaddon,[6] the United States Supreme Court took the first step in adopting the doctrine of absolute foreign sovereign immunity. In Schooner Exchange, the Supreme Court held that the United States did not have jurisdiction over an armed French vessel that was discovered in American territorial waters.[7] In its opinion, authored by Chief Justice John Marshall, the Court declared that sovereign immunity was grounded in the "perfect equality and absolute independence of sovereigns."[8] The Court went on to indicate that a "public armed ship . . . constitutes a part of the military force of her nation, acts under the immediate and direct command of the sovereign, and is employed by him in national objectives."[9] Thus, the Court concluded that an armed French naval vessel constituted an extension of the sovereign and "law requires the consent of the sovereign, either express or implied, before he can be subject to a foreign jurisdiction."[10] As a result, foreign nations enjoyed absolute immunity from lawsuits in America as to their public governmental acts for the next 144 years.

In 1927, the Supreme Court took the final step in adopting the theory of absolute sovereign immunity when it held in Berizzi Bros. Co., v. The Pesaro[11] that foreign sovereigns were entitled to immunity with respect to their private commercial conduct.[12] This final concept of absolute foreign sovereign immunity, consisting of public governmental acts as well as private commercial acts, was the guiding jurisprudential principle in the United States until 1952. During this time period, courts granted immunity based upon recommendations by the State Department,[13] which were often shaped by political and diplomatic concerns.[14] As a result of this case-by-case approach, the application and results of the absolute immunity theory lacked uniformity and certainty.[15]

B. Doctrine of Restrictive Immunity

With the expansion of international commerce and government-owned corporations, many countries began to reevaluate their commitments to the absolute theory of foreign sovereign immunity.[16] Government leaders began to recognize that the effect of advances in communication and transportation on international business made absolute immunity an unrealistic policy. Accordingly, during the 1940's and 50's, countries throughout the world began to adopt the doctrine of restrictive foreign sovereign immunity.[17] The restrictive theory entitled foreign sovereigns to immunity with respect to their sovereign or public acts, but did not extend immunity to those acts considered private or commercial.[18]

Following the international trend, the U.S. State Department announced the "Tate Letter" in 1952, in which it officially adopted the restrictive theory of foreign sovereign immunity.[19] The Letter outlined the new U.S. approach to sovereign immunity and explained in part:

[It is] evident that with the possible exception of the United Kingdom little support has been found except on the part of the Soviet Union and its satellites for continued full acceptance of the absolute theory of sovereign immunity. . . . The reasons which obviously motivate state trading countries in adhering to the theory with perhaps increasing rigidity are most persuasive that the United States should change its policy. Furthermore, the granting of sovereign immunity to foreign governments in the courts of the United States is most inconsistent with the action of the Government of the United States in subjecting itself to suit in these same courts in both contract and tort and with its long established policy of not claiming immunity in foreign jurisdictions for its merchant vessels. Finally, the Department feels that the widespread and increasing practice on the part of governments of engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts. For these reasons it will hereafter be the Department's policy to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign governments for a grant of sovereign immunity.[20]

The Tate Letter marked a fundamental shift in U.S. international policy, but did little to eliminate the multitude of problems associated with determining foreign sovereign immunity. Difficulties arose in practice due to the Letter's failure to effectively enumerate a clear standard for State Department application of the new restrictive theory.[21] Further, while courts adopted the restrictive theory as to immunity from suit, they generally still followed the absolute theory of sovereign immunity in the execution of the judgment.[22]

Spurred on by the unclear and often inconsistent method of determining sovereign immunity by State Department recommendation, Congress decided to remove foreign sovereign immunity determinations from the executive branch entirely.[23] This goal was accomplished through the inception of the Foreign Sovereign Immunities Act of 1976,[24] which codified the restrictive theory of foreign sovereign immunity[25] and placed immunity decisions exclusively in the hands of the judiciary.[26]

C. The Foreign Sovereign Immunities Act

The Foreign Sovereign Immunities Act sets forth the "sole and exclusive standard to be used" in determining subject matter jurisdiction over a foreign State and its instrumentalities in United States courts.[27] The Act confers upon state and federal courts the exclusive right to determine "claims of foreign states to immunity."[28] The FSIA thus integrates concepts of personal jurisdiction and subject matter...