Sovereign immunity and informant defectors: the United States' refusal to protect its protectors.

• Author: Visser, Michelle

INTRODUCTION I. THE STORY OF ADNAN AWAD: FROM TERRORIST, TO HERO, TO VICTIM II. THE ARGUMENTS FOR AND AGAINST SOVEREIGN IMMUNITY A. Justifications for Sovereign Immunity' s Continuing Role in American Law B. Arguments Against Sovereign Immunity's Continuing Role in American Law III. CONGRESSIONAL AND JUDICIAL "WAIVERS" OF SOVEREIGN IMMUNITY: HOW ADNAN AWAD ALMOST RECEIVED JUSTICE A. Congressional Waivers of Sovereign Immunity: Awad's Claims Against the United States B. A Judicial "Waiver" of Sovereign Immunity: Awad's Claims Against Federal Officials in Their Individual Capacities IV. SUGGESTED CONGRESSIONAL AND JUDICIAL MEASURES TO PRECLUDE FURTHER INJUSTICE AND TO BOLSTER THE GOVERNMENT'S ABILITY TO FIGHT TERROR A. Justifications for Changing the Current System: Unnecessary Injustice and National Security Concerns B. Potential Congressional Measures To Remedy the Situation C. Potential Judicial Measures To Remedy the Situation CONCLUSION INTRODUCTION

Once labeled the "highest-ranking Iraqi terrorist ever to defect to the West," (1) and still considered "one of the true heroes in the international battle against terrorism," (2) Adnan Awad risked his life and sacrificed his past to help the United States in its fight against terrorism. Backing out of a terrorist mission, Awad turned himself in at an American embassy, joined the Witness Protection Program (WPP), and assisted U.S. government officials in thwarting terrorist plots, identifying Iraqi terrorists, and securing a verdict against a prominent terrorist. (3) Despite all of this assistance, the government did not give Awad a hero's welcome. Instead, it repaid him with mistreatment and broken promises for which, Awad discovered, there would be no legal remedy.

Already a victim of injustice at the hands of government officials charged with his well-being, Awad also became a victim of sovereign immunity--the age-old doctrine stating that the United States, as "the sovereign," cannot be sued without its consent. (4) When Congress passed the Tucker Act (5) and the Federal Tort Claims Act (FTCA), (6) it arguably gave Awad the green light he needed to bring his case against the government. Nevertheless, decades of judicial interpretation have eroded these congressional acts in ways that precluded Awad from enforcing his rights against the United States. Moreover, even though the Supreme Court has held that, in some instances, potential plaintiffs can bypass the restraints of sovereign immunity by bringing actions against individual government officials through a "Bivens claim," (7) Awad could not meet the stringent standards for stating a cognizable Bivens claim.

While Awad's story naturally evokes sympathy for the individual and frustration with the government officials he encountered and the legal system that refused to vindicate his rights, the ramifications of that story extend far beyond Awad's personal plight for justice. As long as the war on terror remains a prominent national concern, the willing cooperation of individuals such as Awad will be an invaluable asset for government officials seeking to protect this country. Unless the government improves its track record for dealing with these informants, it will likely suffer a "diminish[ed] ability to bring these individuals to our side and to protect the world from terrorist acts," (8) putting us all at risk.

Part I of this Note provides a detailed account of Awad's story, which ends with the doctrine of sovereign immunity precluding his claims for relief against the government. Part II gives a brief description of the doctrine of sovereign immunity and presents the common arguments for and against its continued vitality in today's legal system. Part III explores the areas in which Congress and the Supreme Court have weakened the doctrine of sovereign immunity in ways that have almost, but not quite, opened the courthouse doors to Awad. Part IV concludes that something must be done to ensure that Awad's story is not repeated and offers suggestions for both congressional and judicial actions that could achieve the desired result.

1. THE STORY OF ADNAN AWAD: FROM TERRORIST, TO HERO, TO VICTIM

   Born in Palestine in 1942, Awad and his family relocated to Syria following the 1948 Arab-Israeli War. (9) Awad's frustrations with oppressive, mendacious governments began during his obligatory stint with the Palestine Liberation Organization. (10) Becoming openly critical of the Syrian government after completing his five-year commitment, he was pressured to leave the country and eventually immigrated to Iraq in 1980. (11) Starting out as a lowly trucker, Awad worked his way up and eventually purchased a lucrative construction company. (12) Recalling this highpoint, Awad commented, "I had more than two million dollars in the bank, five cars, a house, and a beautiful young girlfriend. Everything would have been fine, but I met up with stupid people." (13)

   The first "stupid person" Awad met was Mohamed Rashid, (14) the infamous terrorist responsible for the bombing of Pan Am Flight 830. Introduced through a mutual friend, Awad and Rashid began socializing, and Rashid eventually introduced Awad to his boss, Abu Ibrahim. (15) Ibrahim was the leader of the May 15 Organization (16) and "had the reputation among Western antiterrorist agencies as one of the most ruthless and obsessed terrorists in the world." (17) While he knew of Rashid and Ibrahim's terrorist ties, Awad explained that he did not avoid these men because terrorism was so commonplace in Iraq that it was essentially recognized as a normal occupation. (18) Thinking it was purely conversational, Awad spoke with Ibrahim about the Palestinian cause and their mutual frustration with the Israelis. (19) Eventually, Ibrahim asked Awad to make a personal contribution to their "shared cause." Misunderstanding the request, Awad pulled out his checkbook. Ibrahim, however, explained that he had a different sort of contribution in mind: he wanted Awad to become a terrorist. (20)

   Awad politely declined, but Ibrahim persisted, calling Awad multiple times and eventually becoming angry with his repeated refusals. (21) One day, Awad received a call that his workers had been banned from entering the construction site associated with one of Awad's government contracts. When he arrived at the scene, the security officer told him that he would need to speak directly with Abu Ibrahim if he wanted to resolve the issue. (22) Seeing firsthand the extent of Ibrahim's influence and recognizing for the first time the close connections between the Iraqi government and the terrorist network, Awad realized that he had no choice but to acquiesce to Ibrahim's request. (23)

   Using his government connections, Ibrahim obtained a fake passport for Awad and sent him to Geneva with instructions to bomb the Noga Hilton Hotel. (24) As he set out on his mission, Awad hoped to be caught so that he would not have to make the decision whether to go through with the bombing, potentially taking innocent lives, or to face Ibrahim's wrath if he squealed or refused to complete the task. (25) Unfortunately for Awad, he carried one of Ibrahim's "invisible bombs" that contained roughly 100 pounds of TNT, yet was concealed in the inside lining of a suitcase. The bomb easily cleared airport security, forcing Awad to confront his dreaded decision. (26)

   On August 31, 1982, "compelled by an overwhelming sense of grief which arose from his concern for human safety, [Awad] purposely disregarded the imminent threat to his life occasioned by terrorist reprisal and surrendered himself...." (27) After being turned away by the Saudi consulate, Awad sought out the American Embassy and confessed to an American diplomat that he had a bomb in his possession and had been sent to blow up the hotel. (28) He disclosed the location of the bomb, which was then removed and turned over to FBI bomb specialists. (29) The specialists were able to determine that the same person was responsible for making both Awad's bomb and the bomb that caused the explosion on Pan Am Flight 830. (30) Through Awad's surrender, agents were finally able to connect the May 15 Organization to the Pan Am disaster. The American diplomat thanked Awad for his assistance but informed Awad that he was being turned over to the Swiss because the matter was under their jurisdiction. (31)

   In the days after he turned himself in, Awad told his story to the Swiss police and to various foreign intelligence services, including representatives from the United States. Awad provided these agents with information concerning future bombings, identified photographed terrorists (including Mohammed Rashid), gave one of the first descriptions of Abu Ibrahim, and supplied important information regarding the intricacies of Ibrahim's invisible bombs, which had baffled intelligence agencies throughout the world. (32) Awad's initial "cooperation thwarted many bombings and saved many lives." (33)

   Awad spent roughly the next two years in the Swiss system. After Swiss officials discovered that the Iraqi government had seized all of Awad's assets, they undertook the job of supporting and protecting Awad in exchange for his assistance with various terrorism issues. Along with his new identity, they gave him a BMW, a salary of $700 per week, an apartment, clothing, and both a Swiss and a Lebanese passport, which allowed him to travel wherever he chose to go. (34)

   In November of 1984, U.S. officials came to Switzerland and asked Awad to come to the United States in order to be a witness against Mohammed Rashid and the May 15 Organization. The officials explained that Awad would join the WPP and represented that the process would take approximately one year. They further indicated that Awad would receive U.S. citizenship and a U.S. passport in exchange for his testimony and that he would be free to leave the United States and return to his current circumstances if he did not like...