Enlisting the U.S. Courts in a new front: dismantling the international business holdings of terrorist groups through federal statutory and common-law suits.

• Author: Strauss, Debra M.

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, without unduly compromising important U.S. national security interests." (6)

As the U.S. government proceeds on military and diplomatic fronts in the war against terrorism, the time has come for private citizens to enter the battle on civil grounds through lawsuits aimed at crippling terrorist organizations at their foundation--their assets, funding, and financial backing. These types of efforts have been successful in the past at undermining the assets of hate groups in the United States. (7) The national approach that has been used to dismantle the infrastructure of hate groups can be extended to the international realm and used against terrorist groups. The foundation of this approach is a private right to a cause of action rather than, or in addition to, relying upon military or diplomatic efforts by the government. The U.S. courts, aided by Congress' lending of statutory support, have begun to pave the way for civil lawsuits brought by U.S. victims of terrorism against terrorist organizations and the states that enable them. When other countries then enforce these foreign civil judgments, the problem of terrorism is removed from a political forum to the world of private international law where reciprocity and consistency are in those nations' best interests.

As a primer in aid of this approach, Section II of this Article will assemble and analyze case precedents that have developed under several federal statutes as well as common-law tort claims. In Section III, this Article will address obstacles to collecting upon these judgments--obstacles that include the executive branch at times--and present possible avenues for enforcement. Section IV concludes that, in view of these case precedents, the wisest approach is to construct an aggregate model, using a combination of these federal statutory and common-law causes of action. In tandem, the broadest array of defendants can be held civilly accountable, including terrorist groups, officials, and other individuals, along with the foreign states, organizations, and agencies that sponsor them. Despite difficulties in enforcement, pursuing these judgments against terrorist organizations and states is profoundly important and has significant implications for the international business community.

2. AN ANALYSIS OF CASE PRECEDENTS

   In the developing area of civil action against terrorism, lawsuits have been brought under a broad range of federal statutory and state common-law claims. This Article will first survey cases brought under the Antiterrorism Act of 1991 (ATA). It will next consider the most promising avenue of late: numerous precedents under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal statute that amended the Foreign Sovereign Immunities Act to help sever international terrorists from their sources of financial and material support. This Article will also discuss cases brought under other federal statutes, such as the Torture Victim Protection Act and the Alien Tort Claim Act. Lawsuits have been based as well on common-law tort claims--negligent and intentional infliction of emotional distress, battery, assault, aiding and abetting, conspiracy, wrongful death, survival, false imprisonment, and the like--as such claims have not been precluded by the addition of federal statutory causes of action. In addition to compensatory damages for the victims, the availability and ramifications of obtaining punitive damages against terrorist organizations will be examined. The discussion will include the most recent cases arising from the tragic events of 9/11, cases founded upon a combination of these claims against terrorist groups through the institutions that fund and enable them.

   1. Antiterrorism Act of 1991

      The ATA, 18 U.S.C. [section] 2333, provides that

      [a]ny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees. (8) Provisions are made regarding acts of terrorism that transcend national boundaries. (9) Under [section] 2331(1) of the ATA, the term "international terrorism" is defined as activities that

      (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (B) appear to be intended--(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means...