Substantive Due Process, Plenary-Power Doctrine, and Minimum Contacts: Arguments for Overcoming the Obstacle of Asserting Personal Jurisdiction over Terrorists Under the Anti-Terrorism Act

• Author: Ozan O. Varol
• Position: J.D. Candidate, The University of Iowa College of Law, 2007; B.A., Cornell University, 2003
• Pages: 300-352

J.D. Candidate, The University of Iowa College of Law, 2007; B.A., Cornell University, 2003. I am indebted to Professor Stephen Legomsky for answering my numerous questions about this Note. Thanks to Professor John-Mark Stensvaag for his Civil Procedure class, which provided the inspiration for the topic of this Note; to Kristin Flood for her thoughtful comments on earlier drafts; to Angela Wolfe and Harmony Mappes for their excellent editorial assistance; and to the editors and student writers of Volume 92 of the Iowa Law Review. I am grateful to my parents, Yurdanur and Tacettin, for all of their support throughout my life. All errors and omissions are my own.

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I Introduction

International terrorism haunts innocent victims around the world. As the District Court for the District of Columbia noted, "[T]errorism has achieved the status of almost universal condemnation, . . . and the terrorist is the modern era's hosti humani generis-an enemy of all mankind . . . ."¹ As a result of terrorist attacks, people lose their loved ones and the primary wage earners of the home, suffering severe emotional and financial consequences.

In some cases, the perpetrators of these attacks are located and brought to justice through the criminal-law system.² Nevertheless, the criminal-justice system has a number of limitations. In criminal cases, the government bears the heightened burden of proving the elements of the crime beyond a reasonable doubt.³ While criminal penalties may help ease some of the emotional pain resulting from a terrorist attack, they do not alleviate the financial consequences of the loss of a loved one.⁴ Finally, in many cases, terrorists cannot be located and escape the grasp of the criminal-justice system.⁵

The shortcomings of criminal law in the international-terrorism context can be remedied by civil suits against the terrorists responsible for perpetrating the attack. In civil suits, victims only need to prove their case by a preponderance of the evidence.⁶ Moreover, civil suits can help rectify the financial harm caused by the attack by awarding monetary damages toPage 301 victims and their families.⁷ Finally, civil suits allow victims to sue and obtain judgments against terrorists who cannot be located.⁸

Congress recognized the importance of civil suits in the context of international terrorism when it enacted the Anti-Terrorism Act ("ATA")⁹ in 1991.¹⁰ The ATA provides "a civil cause of action for acts of international terrorism" directed at U.S. citizens.¹¹ The purpose of the ATA is to "deter and punish acts of international terrorism."¹² The ATA allows victims of international terrorism to sue terrorist organizations and their leaders, and pursue the funds that keep them in operation.¹³ Judgments entered against terrorists "interrupt, or at least imperil, the flow of terrorism's lifeblood, money."¹⁴ The ATA accomplishes this purpose by awarding the victims and their families treble damages, attorney's fees, and court costs.¹⁵ In sum, the ATA sends a message to terrorists that they should "keep their hands off Americans and an eye on their assets."¹⁶

In addition to their practical effects, judgments entered under the ATA also have symbolic implications. At a subcommittee hearing on the ATA, Lisa Klinghoffer, whose father, Leon Klinghoffer, was brutally murdered byPage 302 Palestine Liberation Organization ("PLO") terrorists, testified about the importance of symbolism: "[It] is a matter of principle. It is not the [j]udgment. It is not the money. It is not a price tag. It is to legally set responsibility for who gave the orders to murder my father . . . . [I]t is a search for justice."¹⁷ The ATA gives the victims of international terrorism and their families "their day in court and [allows them] to establish liability."¹⁸ Thus, even in cases where the terrorists' assets are irrecoverable, judgments entered under the ATA still have symbolic effects for the victims of international terrorism.

Even though the ATA has potential for valuable practical and symbolic effects,¹⁹ bringing a cause of action against terrorists under the ATA may be problematic.²⁰ These problems may include effectuating service of process on the defendant,²¹ convincing a court to exert personal jurisdiction over the defendant,²² and locating the defendant's assets to enforce the monetary judgment entered against the defendant.²³ This Note addresses one of the greatest problems that plaintiffs face when bringing their causes of action under the ATA: attaining personal jurisdiction over the defendant.

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A number of recent federal district-court decisions exemplify the problems that asserting personal jurisdiction presents to victims of terrorism. Estates of Ungar ex rel. Strachman v. Palestinian Authority (Ungar I) concerned a lawsuit arising out of a terrorist attack in Israel.²⁴ On June 9, 1996, Yaron Ungar, a United States citizen, his wife, Efrat, and their nine-month-old son, Yishai, were driving home from a wedding.²⁵ A vehicle driven by Hamas operatives approached Yaron Ungar's vehicle.²⁶ With no warning, the terrorists opened fire on the car with two Kalashnikov machine guns, mercilessly killing Yaron and Efrat Ungar.²⁷ Yishai miraculously survived the attack that claimed the lives of both of his parents.²⁸ The Ungar I court dismissed this lawsuit, for want of personal jurisdiction, against the individual Hamas operatives alleged to have perpetrated the attack and the individual members of the Palestinian Authority ("PA") alleged to have provided material support to Hamas.²⁹

Likewise, in In re Terrorist Attacks on September 11, 2001, the District Court for the Southern District of New York dismissed part of the case brought by the families of the September 11th victims under the ATA, among other statutes.³⁰ The court concluded that it lacked personal jurisdiction over a number of Saudi princes alleged to have supported al Qaeda.³¹ The decision left the families of the September 11th victims powerless to sue those individuals with a considerable amount of assets who had allegedly provided material support to al Qaeda.

This Note proposes solutions to the difficulties, exemplified in part by the two cases discussed above, of asserting personal jurisdiction over terrorist defendants.³² Part II of this Note provides a brief background on the requirements of personal jurisdiction. Personal jurisdiction has two components: statutory and constitutional.³³ First, a long-arm statute has to authorize the exercise of personal jurisdiction over the defendant.³⁴ To thatPage 304 effect, Part III of this Note examines the requirements of the most commonly used statutory basis for personal jurisdiction under the ATA, Federal Rule of Civil Procedure 4(k)(2).³⁵ Second, the exertion of personal jurisdiction over the defendant has to comply with the demands of the Due Process Clause of the Constitution.³⁶ The traditional due-process inquiry for personal jurisdiction involves the application of the minimum-contacts test and the determination of whether the exertion of personal jurisdiction would be reasonable.³⁷ Part IV examines the arguments that courts have used in abandoning a traditional due-process analysis for cases arising out of the state-sponsored-terrorism exception to the...