The State-Sponsored Terrorism Exception
| Author | Ernesto Sanchez |
| Pages | 203-223 |
203
THE STAT E-SPONSOR ED TE RROR IS M
EXC EP T I ON
§ 17.1 INTRODUCTION
e FSIA’s exception to immunity from subject matter jurisdiction with respect to state-spon-
sored terrorism, rst enacted in 1996 and amended in 2008, is unique. In addition to addressing
jurisdictional questions,1 the exception also establishes, among other things, actual private rights
of action,2 separate discovery regimes for the liability stage of proceedings,3 and a relatively
permissive framework for seeking damages4 or provisional remedies pending legal proceedings.5
Moreover, this exception is the only FSIA provision under which plaintis can sue individual
government employees or agents who commit a wrong, along with the governments for which
they acted.6
In sum, the usual distinction between public and private activities that underlies foreign
sovereign immunity in general does not apply to the FSIA state-sponsored terrorism exception.
Instead, what this exception really reects is a particular aspect of U.S. foreign and national secu-
rity policy—government eorts to protect U.S. nationals, military personnel, and government
employees or contractors from acts of violence that threaten U.S. national security (national
defense, foreign relations, or economic interests) as a whole.7 Acts targeted by the exception are
torture, extrajudicial killing, aircraft sabotage, hostage taking, and the provision of material sup-
port thereto by ocials, agents, or employees of states designated as sponsors of terrorism and
acting in their ocial capacities.8
In accordance with this section’s focus on FSIA subject matter jurisdiction, this chapter will
mainly focus on U.S. law’s general approach to state-sponsored terrorism and the FSIA’s exemp-
tion of particular states from jurisdictional immunity to this eect. Chapter 26 will further
discuss the exception’s establishment of private rights of action with respect to state-sponsored
terrorism and their corresponding framework for liability and damages.
1. See 28 U.S.C. § 1605A(a)(1)-(2), (b) (jurisdictional issues).
2. See id. at (c).
3. See id. at (g).
4. See id. at (c)-(d).
5. See id. at (g) (identifying provisional liens on property that arise during pending legal proceedings).
6. See id. at (c).
7. See, e.g., U.S. Department of State – Bureau of Counterterrorism/Foreign Terrorist Organizations (designation as
a foreign terrorist organization requires that “[t]he organization’s terrorist activity or terrorism . . . threaten the security
of U.S. nationals or the national security (national defense, foreign relations, or the economic interests) of the United
States”), available at http://www.state.gov/j/ct/rls/other/des/123085.htm.
8. See 28 U.S.C. § 1605A(a)(1), (c).
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T F S I A D
204
§ 17.2 PERTINENT STATUTORY TEXT
28 U.S.C.§ 1605(A)(a)(1) states:
A foreign state shall not be immune from the jurisdiction of courts of the United States
or of the States in any case not otherwise covered by this chapter in which money dam-
ages 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 for such an act if such act or provision of material support or
resources is engaged in by an ocial, employee, or agent of such foreign state while acting
within the scope of his or her oce, employment, or agency.9
§ 17.3 U.S. LAW’S GENERAL APPROACH TO STATE-
SPONSORED TERRORISM
U.S. statutory law denes terrorism as “premeditated, politically motivated violence perpetrated
against noncombatant targets by subnational groups or clandestine agents.”10 According to Pro-
fessor Bruce Homan of Georgetown University, a specialist in the study of terrorism, the spon-
sorship of terrorist groups constitutes a “cost-eective means” for states that sympathize with
particular groups’ aims to “wag[e] war covertly” through the use of “surrogate warriors or ‘guns
for hire.’”11 Terrorists or terrorist groups, in turn, benet from this sponsorship both nancially
and by being able to utilize a state’s entire diplomatic, military, and intelligence apparatus for
planning and logistical support (e.g., transfer of weapons via diplomatic pouches, use of embas-
sies as safe houses).12 In this way, terrorism can become “a deliberate instrument of [a state’s]
foreign policy.”13
Certainly the Iranian hostage crisis that lasted from 1979 to 1981 was a pivotal, if not, as
Professor Homan contends, “[t]he pivotal event in the emergence of state-sponsored terrorism
as a weapon of the state and an instrument of foreign policy.”14 Following the 1979 overthrow
of the U.S.-backed Shah of Iran, Mohammad Rezā Shāh Pahlavi (1919-1980), and the subse-
quent ascent by Ayatollah Ruhollah Khomeini to the position of Supreme Leader of a newly
created Islamic government, an Iranian student group called the Muslim Student Followers of
the Imam’s Line took control of the U.S. Embassy in Tehran, seizing 66 American personnel
as hostages. ese students, acting with the Khomeini regime’s full support, demanded that the
United States facilitate the Shah’s return to Iran for prosecution in exchange for the Americans’
9. 28 U.S.C. § 1605A(a)(1).
10. 22 USC § 2656f(d)(2); see also U.S. Department of State, Country Reports on Terrorism 2010 – National Coun-
terterrorism Center: Annex of Statistical Information (noting U.S. National Counterterrorism Center’s adoption of this
denition in 2005), available at http://www.state.gov/j/ct/rls/crt/2010/170266.htm.
11. See B H, I T 258 (2006); see also D B, D C: S
T S T - (th ed. 2012) (2005) (discussing nature of state terrorism sponsorship).
12. H, supra note 11, at 259.
13. Id. at 258.
14. Id.
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