Foreign State-Sponsored Terrorism A History and Legislative Analysis, 0717 SCBJ, SC Lawyer, July 2017, #19

Author:Glenn M. Spitler III, J.
 
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Foreign State-Sponsored Terrorism A History and Legislative Analysis

Vol. 29 Issue 1 Pg. 19

South Carolina Bar Journal

July, 2017

Glenn M. Spitler III, J.

On September 19, 1989, Bonnie Barnes Pugh boarded a plane leaving N’Djamena, Chad, and headed to Paris, France. Mrs. Pugh was headed to Paris to accompany her husband, Robert Pugh, who was serving as the United States Ambassador to Chad and was in Paris on business. The airplane took off and ascended to a cruising altitude of 35,000 feet. Unbeknownst to Mrs. Pugh, the plane’s right forward baggage hold contained a grey Samsonite briefcase filled with the plastic explosive pentrite. Forty-five minutes into the fight, the briefcase detonated, ripping the plane into four sections, but the explosion did not kill most of the 170 passengers and crew. Instead, the passengers were catapulted into the open air, and experienced the disorienting effect of the temperature instantly dropping 119 degrees, from 70 °F inside the plane to -49 °F outside, as they plummeted towards the earth at 150 miles per hour. All 170 victims fell to their deaths over the next three minutes.1

In the aftermath, numerous organizations and governments conducted investigations into the bombing. The investigations showed that high-ranking Libyan government officials, including leader Muammar Qaddafi, planned the attack, transported bomb-making materials via Libyan diplomatic pouches, and recruited the hijacker that carried the bomb on the plane.2

This is an example of state-sponsored terrorism, which occurs where a foreign state provides support for a terrorist attack against United States citizens.

This article will discuss a brief history of state-sponsored terrorism, the legal framework of state-sponsored terrorism lawsuits, the September 11 attacks, and the 2016 Justice Against Sponsors of Terrorism Act.

HISTORY OF STATE-SPONSORED TERRORISM

The United States Secretary of State may designate a country that has provided support for acts of international terrorism as a state sponsor of terror pursuant to federal law.3 Three countries currently have this designation: Iran, Syria and Sudan.4 The United States removed Libya from this list in 2006.

Bad actors and notable cases

Before the September 11 attacks, the worst state sponsors of terror were Iran, Libya and Syria. As discussed below, after the September 11 attacks there is an increased focus on Saudi Arabia for its alleged role in providing support to the hijackers.5

Iran provided support for the following notable attacks, among others: • the 1983 bombing on the United States embassy in Beirut, Lebanon that killed 63 people, including 17 Americans;6

• the 1983 bombing of United States Marine barracks in Beirut that killed 241 United States military servicemen;7 and

• the 1998 truck bombings that destroyed the United States embassies in Kenya and Tanzania, killing over 300 people.8

Libya provided support for the following notable attacks, among others: • the 1986 bombing of the La Belle discothèque in West Berlin, Germany that killed three people and injured over 200;9

• the 1988 bombing of Pan Am Flight 103 that killed 259 passengers, including 189 American citizens, in Lockerbie, Scotland;10 and

• the 1989 bombing of a French Union de Transports Aériens airplane that killed 170 people, including 37 American citizens.11 The United States government has long investigated Saudi Arabia for supporting terrorist organizations such as the Afghanistan Taliban, al Qaeda and ISIS. However, Saudi Arabia’s alleged support of the September 11 attacks have placed it under the United States government’s microscope.12

LEGAL FRAMEWORK FOR STATE-SPONSORED TERRORISM LAWSUITS

Pursuant to federal law, a victim’s family members and estate representatives may bring legal claims against a foreign state (or its officials, employees or agents) for state-sponsored terrorist acts. The basic legal framework is laid out below.

Sovereign immunity

A foreign state normally enjoys sovereign immunity against legal action pursuant to the Foreign Sovereign Immunities Act of 1976 (FSIA).13 To establish jurisdiction over a foreign state, the claimant must establish that one of the FSIA’s exceptions apply.14

In 1996, Congress passed one such exception, an amendment that allowed individuals to strip away sovereign immunity against a foreign state’s officials, employees or agents that caused personal injury or death by terrorist act.15 In 2008, Congress extended this exception to remove sovereign immunity against the foreign state itself, not just its officials.16

Liability

After proving that the foreign state is not entitled to sovereign immunity, the claimant must show that the foreign state is liable for the alleged actions.

The FSIA provides that a foreign state is liable where it caused damages by “act of torture, extra-judicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act[.]”17

In many instances, the foreign state does not directly commit the terrorist act, but provides material support to another organization that plans and executes the attack. In determining whether a foreign state has materially supported a terrorist act, courts will often first examine which terrorist organization committed the act, and then whether the foreign state provided support to the group.18 Notably, federal courts do not require that the foreign state’s support directly contributed to the attack itself, only that the foreign state contributed to the organization that performed the attack.19 For example, federal courts have found that because Iran helped create Hezbollah, a Lebanese terrorist organization, and Hezbollah bombed Western targets, Iran was therefore liable for Hezbollah’s terrorist acts.20

Damages, judgment execution and government intervention

After establishing liability, the court will determine the amount of damages to award the plaintiffs. The FSIA and Anti-Terrorism Act (ATA) allow plaintiffs to recover money damages, including economic damages, loss of solatium, pain of suffering and...

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