The cost of closure: a reexamination of the theory and practice of the 1996 amendments to the Foreign Sovereign Immunities Act.

Author:Baletsa, S. Jason

[The law g]ave me a weapon. In other words, a--a sovereign country has the right to launch Tomahawk missiles at another country to protect its rights.... I don't have that kind of power. I don't have $60 million to launch those kinds of missiles. But now I have something that's purely American. I have--I have American jurisdiction over the people who sponsored the terrorist attack which killed Alisa.

Stephen Flatow(1)


In April 1995, a terrorist van packed with explosives collided into a bus in Israel killing seven Israeli soldiers and one American citizen.(2) The American victim of this suicide bombing was Alisa Flatow, an undergraduate student at Brandeis University.(3) In a world grown far too immune to such terrorist attacks, Stephen Flatow, Alisa's father, decided not to let his daughter's death become just another example of the turbulent peace process in the Middle East. Instead, he sought information, hoping to provide closure and accountability for his family's loss. With the assistance of Senator Frank Lautenberg of New Jersey and the cooperation of the State Department's top counter-terrorism task force, Stephen Flatow obtained the identity of his daughter's killer. To his surprise, the party ultimately responsible for the attack was not a person or group, but rather a nation--the Islamic Republic of Iran.(4)

Outraged by this revelation, Stephen Flatow needed to take action. The Flatow family, however, in their pursuit to hold Iran accountable for Alisa's death, faced the ultimate David-and-Goliath challenge. What course of action could one family possibly take to hold a sovereign nation accountable for a terrorist attack? The answer--they sued Iran.

Requiring a sovereign nation to appear before domestic courts is not an easy task, but the Flatows were able to assert jurisdiction over Iran pursuant to recent amendments to the Foreign Sovereign Immunities Act of 1976 ("FSIA").(5) The first amendment, embedded in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"),(6) withdraws the cloak of sovereign immunity for foreign nations that sponsor acts of terrorism(7) and permits the attachment of the foreign nation's assets or property in the United States for the purpose of satisfying any judgment rendered against it.(8)

With the shield of sovereign immunity removed, the Flatow family brought suit against Iran pursuant to another recent amendment to the FSIA, the Civil Liability for Acts of State-Sponsored Terrorism Act.(9) This amendment, frequently referred to as the Flatow Amendment,(10) creates a private cause of action against any official, employee, or agent of a foreign state who commits any act covered by AEDPA's terrorism exception to the FSIA, so long as that foreign state has been designated a state sponsor of terrorism.(11) Thus, AEDPA and the Flatow Amendment should be read together--the Flatow Amendment explicitly creates a private cause of action for acts that serve as the basis for AEDPA's withdrawal of sovereign immunity.

While most of the initial scholarly commentary surrounding the passage of this anti-terrorist legislation focused on AEDPA's effects on writs of habeas corpus (Title II), the effect of these amendments on the doctrine of sovereign immunity was for the most part overlooked.(12) The commentary that did exist expressed varied opinions. Many saw this exception to sovereign immunity as "one of the crown jewels of the Anti-Terrorism legislation"(13) that would ultimately deter future acts of terrorism and provide the closure and accountability the victims' families needed.(14) Others, including the U.S. Department of State, were less jubilant about the vast theoretical implications of these amendments on the doctrine of sovereign immunity.(15)

Regardless of the initial reaction, recent cases(16) filed pursuant to these amendments have added a practical dimension to the growing discourse on combating terrorism.(17) These cases clearly demonstrate the failure of private suits to rectify the problem of state-sponsored terrorism. The inability of these lawsuits to effectuate their stated purpose, coupled with the theoretical concerns that many commentators have expressed, demonstrate that recourse to private suits for acts of state-sponsored terrorism must be reexamined.

This Comment explores both the theoretical implications and the practical consequences of private suits for acts of state-sponsored terrorism. Part I traces the evolution of the doctrine of sovereign immunity. From its early expression in judicial opinions to the emergence of the FSIA, the evolution of sovereign immunity has been gradual and deliberate. Part II, however, demonstrates how these recent amendments represent a fundamental and unwarranted deviation from this natural progression. While these amendments, in theory, attempt to rectify the problems that plagued private suits under the FSIA, the recent legislation simply goes too far. Part III of this Comment explores the practical consequences of private suits by examining recent cases filed pursuant to the Flatow Amendment. The emergence of this new judicial procedure was initially hailed as a triumph for those families touched by the horrors of international terrorism. In practice, however, such suits have resulted in unenforceable judgments that deny the victims' families the closure and accountability they desperately need. Finally, Part IV concludes by arguing that the theoretical implications of private suits, when viewed in conjunction with the results observed in practice, suggest a reexamination of the propriety of resorting to private suits. While such suits have highlighted the problem of international terrorism, they are clearly not the solution.


    A. The Genesis of Absolute Immunity: The Schooner Exchange v. M'Faddon

    State sovereign immunity has rather enigmatic doctrinal origins.(18) While one can see the emergence of this theory in the writings of philosophical theorists such as Grotius and Vattel,(19) the first discernible articulation of this theory appears in the judicial opinions of the nineteenth century.(20) Primarily, there are two areas in which the earliest manifestations of sovereign immunity are most evident: the protection afforded diplomatic agents(21) and cases involving foreign public ships.(22) In both scenarios, courts embraced an absolute theory of immunity which acknowledged that "all states are equal and that no one state may exercise authority over any other state."(23)

    American courts, in The Schooner Exchange v. M'Faddon,(24) took the lead in delineating the doctrine of absolute sovereign immunity.(25) In this case, the French navy captured the schooner Exchange, owned by John McFaddon and his partner, William Greetham, on the high seas and converted it into the French ship-of-war, the Balaou.(26) Due to inclement weather, the Balaou was forced to enter the port of Philadelphia. While in U.S. territory, McFaddon and Greetham filed suit in federal court claiming that they were the sole owners of the vessel and that she was "violently and forcibly taken by certain persons, acting under the decrees and orders of Napoleon, Emperor of the French."(27)

    Chief Justice John Marshall, while noting that "It]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute,"(28) wrote that in a world "composed of distinct sovereign [s], possessing equal rights and equal independence,"(29) the jurisdiction of one sovereign "would not seem to contemplate foreign sovereigns, nor their sovereign rights as its objects."(30) Thus, a foreign sovereign, equal in rights and independence to any other, enters the territory of another sovereign "only under an express license, or in the confidence that the immunities belonging to his independent sovereign station ... are reserved by implication, and will be extended to him."(31) Having articulated this theoretical basis of sovereign immunity, Marshall applied it to the present case and concluded that an armed ship in the service of a foreign sovereign "must be considered as having come into the American territory, under an implied promise, that while necessarily within it ... she, should be exempt from the jurisdiction of the country."(32) Thus, the French government was immune from jurisdiction, and Marshall dismissed the case.

    While there were many early attempts to limit the absolute immunity doctrine, few were successful. In Berizzi Bros. v. Steamship Pesaro,(33) the district court seized upon language in Marshall's opinion in Schooner Exchange to deny immunity for a foreign ship that was engaged in a commercial activity.(34) Upon review, the Supreme Court(35) resisted limiting the absolute immunity doctrine and instead found that "merchant ships held and used by a government [in this case, Italy] ... must be held to have the same immunity as war ships, in the absence of a treaty or statute of the United States evincing a different purpose."(36) While this attempt to restrict the absolute immunity doctrine failed, it did demonstrate that some restrictions were needed and foreshadowed their ultimate inevitability.

    B. Movement from Absolute to Restrictive Immunity: The Tare Letter

    Although one could hear rumblings of discontent in the judiciary, the first gradual deviation from the absolute doctrine came from the executive branch through the Tate Letter.(37) Jack Tate, serving as legal advisor to the State Department in 1952, wrote a letter to the Attorney General advising the United States to adopt a more restrictive theory of sovereign immunity that dichotomized acts into jure imperii [public acts] and jure gestionis [private acts].(38) Tate argued that the public acts of the sovereign should retain immunity in U.S. courts but that other private commercial acts should be subject to American jurisdiction.(39)

    Tate advocated this approach for several reasons. First, he...

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