Rubin v. Islamic Republic of Iran: the Supreme Court's Textually Veiled Decision to Give State Terror Sponsors Immunity

• Publication year: 2021

96 Nebraska L. Rev. 977. Rubin v. Islamic Republic of Iran: The Supreme Court's Textually Veiled Decision to Give State Terror Sponsors Immunity

Rubin v. Islamic Republic of Iran: The Supreme Court's Textually Veiled Decision to Give State Terror Sponsors Immunity(fn*)

Jennifer Atwood

TABLE OF CONTENTS

I. Introduction .......................................... 978

II. Background ........................................... 980
A. The Foreign Sovereign Immunity Act: State Sponsor of Terrorism Exception ............................ 980
1. History of Sovereign Immunity in U.S. Jurisprudence Under Customary International Law ........................................... 980
2. The 1976 Foreign Sovereign Immunities Act . . . 981
3. The 1996 Amendment-The State-Sponsored Terrorism Exception ........................... 983
4. The Flatow Amendment ....................... 984
5. The 2002 Amendment-The Terrorism Risk Insurance Act ................................. 985
6. The 2008 Amendment-The "New" State-Sponsored Terrorism Exception ................ 986
7. The State-Sponsored Terrorism Exception in 2018 .......................................... 987
B. Rubin v. Islamic Republic of Iran .................. 988
1. Facts .......................................... 988
2. Procedural History ............................ 989
3. Holdings ...................................... 993

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III. Analysis .............................................. 994
A. The Court's lengthy ode to the historical development and overarching structure of FSIA evince separation-of-powers concerns trumped the statutory text's ordinary meaning .................. 994
B. The Court's myopic application of the ambiguous "as provided in this section" language suffers from various interpretational anomalies ................. 997
C. The Court's narrow construal of § 1610(g) dilutes the SST exception's intended clout, contrary to statutory purpose ................................. 1000
D. Separation-of-powers concerns were ostensibly at the primacy of the Court's narrow interpretation . . . 1003

IV. Conclusion ............................................ 1005

I. INTRODUCTION

After a near twenty-year legal saga, the Rubin plaintiffs, survivors of a grisly terrorist attack overseas, petitioned the U.S. Supreme Court this term, seeking to attach ancient Persian architectural artifacts in satisfaction of a $71.5 million outstanding default judgment against the country of Iran.(fn1) The judgment stems from a 1997 suicide bombing in Jerusalem.(fn2) The eight American Rubin petitioners fell victim to the attack on a crowded pedestrian walkway when three suicide bombers, belonging to Hamas, an Islamic extremist terrorist organization, detonated cases of powerful bombs packed with nails, screws, pieces of glass, and chemical poison.(fn3) The Rubins were among the injured survivors of the deadly attack funded by Iran.(fn4)

The Rubin petitioners(fn5) filed suit against Iran on September 10, 2003, in Campuzano v. Islamic Republic of Iran(fn6) under (a former version of) the "terrorism exception" to sovereign immunity(fn7) in the U.S.

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District Court for the District of Columbia.(fn8) Iran failed to respond or appear at any stage of the proceedings, and the district court awarded plaintiffs a $71.5 million default judgment.(fn9) Iran eluded payment, and the Rubins initiated attachment proceedings to procure satisfaction of the default judgment.(fn10) Fifteen years later, however, despite their multitudinous efforts in federal courthouses across the country, the Rubins have yet to collect upon their judgment.(fn11)

Initially, the Rubin petitioners held high hopes that would change this term when the U.S. Supreme Court undertook their case to decide whether the new SST exception to foreign-sovereign attachment immunity (28 U.S.C. §1610(g)) mandates a freestanding exception.(fn12) Meanwhile, the U.S. Government, for its part, filed an amicus brief on behalf of unexpected political bedfellow Iran, arguing against the statutory construction that would have granted terror victims such an independent exception.(fn13) Ultimately, terror victims lost their biggest battle to date when the Court in an atypical ode to FSIA's greater strictures sided with Iran and the U.S. Government.(fn14) Now the question remains whether Congress will once again seek to amend the State-Sponsored Terrorism Exception to attachment immunity (SST exception), which it has already amended more times than any other provision in FSIA's history, in its relentless endeavor to provide terror victims meaningful relief.

Part II of this Note provides a brief history of the Foreign Sovereign Immunity Act (the Act or FSIA), specifically focusing on legislative enactments modeled to facilitate a legal framework for terror victims to: (1) obtain jurisdiction and (2) enforce judgments against designated terror-sponsor sovereigns. Part II examines the role the federal judiciary has played in interpreting these enactments, examining the Seventh Circuit's analysis of the Act's terror exception to attachment immunity in the lead up to the Supreme Court's granting certiorari.(fn15) Part III argues that the U.S. Supreme Court's recent holding was a strained textual interpretation that was more plausibly driven by separation-of-powers concerns. Part IV concludes by briefly

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identifying why the Court may have decided it necessary to textually veil its constitutionally driven decision in the manner in which it did.

II. BACKGROUND

A. The Foreign Sovereign Immunity Act: State Sponsor of Terrorism Exception

1. History of Sovereign Immunity in U.S. Jurisprudence Under Customary International Law

Throughout the majority of its history, the United States has ascribed to the general principle of international law that a foreign government is immune from the jurisdiction of another sovereign's courts.(fn16) In 1812, Chief Justice Marshall articulated this "absolute immunity" standard as governing issues of foreign sovereign immu-nity.(fn17) The Absolute Immunity Doctrine enshrined foreign nations virtually absolute immunity from U.S. courts.(fn18) When the rare set of legal facts did arise to pose whether a U.S. court had jurisdiction over a foreign sovereign, the judiciary would systematically defer to the executive. The executive, would, in turn, habitually request immunity in all pending actions against friendly foreign sovereigns. This methodical ritual (quasi-rite) held unrelentingly firm, procedurally entrenched in the nation's early post-founding years.

By the turn of the twentieth century, however, the United States invariably sought an economic foothold on the world stage.(fn19) This newfound global proliferation initiated an immediate and marked influx in Americans' foreign contacts abroad.(fn20) Arising out of these foreign connections, so too inexorably came an increase in the size,

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number, and frequency of legal disputes therein.(fn21) Ultimately, it was this unrelenting onset of ever-increasing globalization that served to underscore the country's glaring need for a legal framework of judicialredress.(fn22)

2. The 1976 Foreign Sovereign Immunities Act

The FSIA, passed in 1976, provides the sole and limited authority under which U.S. nationals may bring civil suits against foreign states. By definition, the Act codified U.S. foreign-relations law to statutorily adopt the theory of "restrictive immunity," dispensing with what had become an antiquated theory of absolute immunity.(fn23) The FSIA delineates the narrow grounds upon which foreign nations are required to answer in U.S. courts. Formalistically, such narrow exceptions arise when certain predetermined acts of foreign states sever the general presumption of "immunity" sovereigns otherwise enjoy,(fn24) thereby establishing a judicial basis upon which U.S. plaintiffs can bring lawsuits against foreign-sovereign defendants.(fn25)

The newly employed restrictive theory of immunity meant foreign states were presumed jurisdictionally immune in U.S. courts only to those claims involving the foreign state's public acts.(fn26) Practically speaking, suits based on a foreign state's commercial or private conduct were no longer presumed immune under the Act and, as a result, could be reasonably held subject to the jurisdiction of U.S. courts. In sum, the Act codified the sole means by which a foreign state would be

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refused immunity and thus be subject to the jurisdiction of U.S. courts.(fn27)

The Act was originally devised with four objectives:(fn28) (1) to codify the so-called restrictive principle of sovereign immunity, as discussed above;(fn29) (2) to assure that the newly minted "restrictive immunity" theory would be uniformly applied to all litigants appearing before U.S. courts;(fn30) (3) to systemize a formal procedure for U.S. nationals to obtain jurisdiction over foreign states;(fn31) and (4) to provide an enforcement mechanism to procure plaintiffs the ability to collect on successful judgments against foreign states.(fn32) In essence, the Act maintained the general presumption that "a foreign state shall be immune from the jurisdiction of the courts of the United States"(fn33) but also delineated several exceptions when the foreign state would not be immune.

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These primary exceptions included cases where "the foreign state ha[d] waived its immunity either expressly or by implication . . . or, where a commercial activity" exception applied.(fn34)

As initially enacted, missing from the Act's enumerated exceptions to foreign sovereign immunity was an exception for suits against foreign states for acts of terrorism committed against U.S. nationals overseas. This meant that U.S. courts routinely refused to hear cases for lack of jurisdiction against foreign states in suits brought by plaintiffs alleging...