The Flatow Amendment and State-sponsored Terrorism

• Jurisdiction: United States,Federal
• Citation: Vol. 28 No. 04
• Publication year: 2005

SEATTLE UNIVERSITY LAW REVIEWVolume 28, No. 4SUMMER 2005

The Flatow Amendment and State-Sponsored Terrorism

Joseph Keller(fn*)

In the eighteenth and nineteenth centuries, U.S. law recognized virtually absolute immunity for foreign states sued in U.S. courts.(fn1) However, with the onset of communism in the post World War II era, many foreign governments began to perform functions traditionally private or commercial in nature, such as the operation of an airline or commercial bank.(fn2) As a result of this political change, a new theory of "restrictive immunity" replaced absolute immunity as the norm in U.S. courts.(fn3) Congress codified the restrictive theory of sovereign immunity in the Foreign Sovereign Immunities Act (FSIA).(fn4)

The original FSIA provided sovereign immunity for foreign states and their instrumentalities, with enumerated exceptions including waiver, commercial activity, expropriation of property in violation of international law, disputes over property situated in the United States, and tortious acts or omissions occurring in the United States.(fn5)

In 1996, in response to the lobbying of victims of terrorism, including the families of victims of Pan Am Flight 103, Congress amended the FSIA(fn6) by creating a state-sponsored terrorism exception to foreign sovereign immunity ("Antiterrorism Amendment"), stating that a foreign state has no immunity from U.S. courts in any cases:(7) not otherwise covered by paragraph (2), in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency, except that the court shall decline to hear a claim under this paragraph- (A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371) at the time the act occurred, unless later so designated as a result of such act or the act is related to Case Number 1:OOCV03110(EGS) in the United States District Court for the District of Columbia; and(B) even if the foreign state is or was so designated, if- (i) the act occurred in the foreign state against which the claim has been brought and the claimant has not afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration; or (ii) neither the claimant nor the victim was a national of the United States (as that term is defined in section 101(a)(22) of the Immigration and Nationality Act [8 USCS § 1101(a)(22)]) when the act upon which the claim is based occurred.(fn7)

This new exception to foreign sovereign immunity waived a jurisdictional barrier previously encountered by plaintiffs seeking to sue designated foreign states or their instrumentalities for acts of terrorism.(fn8)

Five months later, Congress amended the FSIA again with the "Civil Liability for Acts of State Sponsored Terrorism" provision, commonly referred to as the Flatow Amendment.(fn9) The Flatow Amendment is named after Alisa Flatow, a Brandeis University student killed by a terrorist attack while traveling on a bus in the Gaza Strip when a suicide bomber drove a van full of explosives into the bus.(fn10) Outraged by his daughter's suffering and determined to seek justice for victims of state-sponsored terrorism, Alisa's father, Stephen Flatow, lobbied Congress to pass the resulting legislation.(fn11) The Amendment provides punitive damages, previously unavailable under the statutory scheme of the FSIA:An official, employee, or agent of a foreign state designated as a state sponsor of terrorism ... while acting within the scope of his or her office, employment, or agency shall be liable to a United States national or the national's legal representative for personal injury or death caused by acts of that official, employee, or agent for which the courts of the United States may maintain jurisdiction under section 1605(a)(7) of Title 28, United States Code, for money damages which may include economic damages, solatium, pain, and suffering, and punitive damages if the acts were among those described in section 1605(a)(7).(fn12)

In the years since the enactment of the Flatow Amendment, courts have struggled with the question of whether the Amendment creates a private cause of action against a foreign state itself, or only against an official, employee, or agent of a foreign state.(fn13) Many courts have found that the Flatow Amendment does provide a cause of action against a foreign state itself.(fn14) Other courts have determined, correctly in the author's view, that the Flatow Amendment only provides a cause of action against officials, employees, or agents of a foreign state.(fn15)

In its consideration of the Flatow Amendment, the U.S. Court of Appeals for the D.C. Circuit has sought the input of the State Department on the question of whether the FSIA and the Flatow Amendment provide a cause of action against a foreign state.(fn16) However, the Supreme Court has stated the following: "In 1976, Congress passed the Foreign Sovereign Immunities Act in order to free the Government from the case by case diplomatic pressures, to clarify the governing standards, and to '[assure] litigants that ... decisions are made on purely legal grounds and under procedures that insure due process.'"(fn17) Given the Supreme Court's view that one purpose of the FSIA was to limit the role of the State Department in determining questions of foreign sovereign immunity,(fn18) how much consideration should the courts give to the position of the State Department in cases involving foreign policy considerations? Put differently, what are the limits of the foreign affairs powers of the executive branch and how might the foreign affairs powers of the executive conflict with judicial independence and separation of powers principles? As this article demonstrates, participation of the executive branch in cases interpreting the Flatow Amendment and in other cases with serious foreign policy implications is appropriate and beneficial for both the courts and the government of the United States. Indeed, the participation of the executive branch will bring to the courts unique and valuable expertise in the arena of foreign policy and help clarify the real world concerns underlying terrorism cases against foreign governments.

This article argues that the Flatow Amendment does not provide a cause of action against a foreign state itself and, further, that judicial consultation of the State Department is appropriate and desirable in cases affecting foreign policy, such as those requiring interpretation of the Flatow Amendment. Part I will analyze early judicial interpretation of the Flatow Amendment, examine and critique the methodology of Cronin and its progeny, explain application of the Charming Betsy principle to this line of cases, and conclude that the Flatow Amendment provides a cause of action against the officials, employees, or agents of a foreign state, but not against the foreign state itself. Part II of this paper will examine the constitutional foundations of the foreign relations power and its development in U.S. courts, and will explain the benefits of executive branch participation in cases that interpret the Flatow Amendment and that affect foreign policy.

I. Judicial Interpretation of the Flatow Amendment

On its face, the Flatow Amendment(fn19) creates a cause of action against an official, employee or agent of a foreign state, but not against the foreign state itself. The slim legislative history of the Flatow Amendment also offers no support for the proposition that the Amendment creates a cause of action against a foreign state.(fn20) The only language in the legislative history that reflects on the purpose or scope of the Amendment states that the Amendment will expand "the scope of monetary damage awards available to American victims of international terrorism."(fn21) While this language manifests a Congressional intent to enlarge the scope of available damages for plaintiff victims of state-sponsored terrorism, it does not clarify the category of defendants against whom such awards will be available.

A. Early Interpretation of the Flatow Amendment

Judicial interpretation of the Flatow Amendment has evolved over a period of roughly five years. Flatow v. Islamic Republic of Iran was the first decision to address the scope of the Flatow Amendment.(fn22) As administrator of Alisa Flatow's estate, Steven Flatow brought a wrongful death suit against Iran, its intelligence agency, and several of its officials.(fn23) The Flatow decision did not resolve the question of the scope of the cause of action provided by the Flatow Amendment.(fn24) It did, however, note that the Flatow Amendment must be interpreted in pari materia along with the Antiterrorism Amendment: "The amendment should be considered to relate back to the enactment of 28 U.S.C. § 1605(a)(7) as if they had been enacted as one provision...