Ashley Edwards And Katie Frawley. Two–Fold Issue 1) Should victims of terrorist acts be allowed to bring lawsuits against State sponsors of terrorism.

Ashley Edwards

And

Katie Frawley

Two–Fold Issue

1) Should victims of terrorist acts be allowed to bring lawsuits against State sponsors of terrorism

2) How do victims collect compensation awarded in lawsuits against State sponsors of terrorism

History/Context

Foreign Sovereign Immunities Act (FSIA)Lists circumstances under which the foreign

sovereign immunity of a State will not be recognized by US federal courts

When foreign sovereign immunity is not recognized, US courts can exercise jurisdiction over disputes and treat foreign States as private entities

History/Context 1996 Amendment to FSIA

Anti-Terrorism and Effective Death Penalty ActForeign States no longer immune from US Court jurisdiction

in cases 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… for such an act if such an 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”

History/Context

State must be designated as a State sponsor of terrorism

CURRENT PAST

Cuba (1982)

Iran (1984)

Sudan (1993)

Syria (1979)

Iraq

Libya

North Korea

Source: US State Dept.

History/Context 1996 FSIA Amendment also held terrorist States liable for

compensatory damages

Civil Liability for Acts of State-Sponsored Terrorism = Flatlow Amendment Created cause of action for suits against officials, employees,

and agents of the States

ISSUE 1 INITIALLY ADDRESSED: GROUND WORK CREATING ABILITY OF VICTIMS TO SUE STATE SPONSORS OF

TERRORISM

History/Context Initial cases against Cuba and Iran (1997-

1998) Judgments by default

Alejandre v Republic of Cuba ($50m/$137.7m)Flatow v Islamic Republic of Iran ($27m/$225m)Cicippio v Islamic Republic of Iran ($65m)

ISSUE 2: Victims unable to collect damages and compensation

History/Context

Problems with collectingForeign State does not recognize US court

jurisdiction

Frozen assets and diplomatic properties○ Use opposed by Administration○ Protect diplomatic and consular properties○ Blocked use of frozen assets○ Fear of reciprocal actions against the US

History/Context

1999 Victims of Terrorism ActAllowed compensation from all assets of a

terrorist State○ Blocked assets○ Diplomatic and consular properties○ Moneys due from the United States

History/Context

5Negative Effects

of Collecting Compensation From Assets

Blocking assets is significant economic sanctions tool in combating terrorism

Violates international treaty obligations to protect and respect diplomatic and consular property

Create a race to the courthouse – benefit one small group over a larger group

Breach the United States Government’s sovereign immunity from attachment

Direct courts to ignore the separate legal status of States, overturning Supreme Court precedent, corporate law, and int’l practice

History/Context

On going issues – ability to sue and ability to collect compensation

Other cases involving these issuesIran Hostages9/11 VictimsFormer US POWS in IraqFarzin Ferdowsi

History/Context

Iran HostagesFSIA amendment retroactive to 1979

Algiers AccordObama Administration

History/Context

9/11 VictimsPan Am Flight 103 reference (Libya)

1,400 plaintiffs in Manhattan federal court

Problems collecting $64 million award

History/Context

Former US POWS in Iraq17 Americans from first Gulf War and

familiesProblems collecting $1 billion in damagesPlaintiffs prevented from collecting by court

of appeals○ Failure to state a valid cause of action against

Iraq○ Saddam Hussein has immunity for official

conduct

History/Context

Farzin Ferdowsi (9/19/2009)Suit against Iran in 2006 for torture and

execution of father in 1981State sponsor of terrorism classificationFederal judge denied suit

Past Proposed Legislation 105th Congress: Cuba and Iran

Did not recognize jurisdiction of The US court suits and refused to appear in Court.

106th Congress: “Justice for Victims of Terrorism Act”Attachment of all assets of terrorist states

107th Congress: President BushComprehensive program to ensure fair,

equitable, and prompt compensation for all US Victims of International terrorism

Past Proposed Legislation

108th Congress: Administration proposal Introduced by Senator LugarDSST’s blocked assets would be

unavailablePOW’s (Prisoner of War Protection Act)

109th Congress: DOJHalt efforts to block compensation for torturePayment of $1m to seventeen plaintiffs

Proposal

Completely ELIMINATE lawsuits against State sponsors.

Analysis of Proposal

Why Eliminate?

Foreign States don’t recognized U.S. court systems

Seized funds are severely inadequate to pay US victims who have won judgments in U.S. courts.

Presidential waiver stipulation in the FSIA

Analysis of Proposal

Why Eliminate?

Permitting lawsuits against state sponsors of terrorism to be tried in US courts severely jeopardizes the separation of powers doctrine.

Questions in the fairness of proceedings. US could become vulnerable to retaliation.

Pros & Cons

Save time, energy and resources.

Protect American properties abroad.

(NO)Insufficient funds in a result to try to compensate every victim

Victims will be highly against the elimination of suing DSST.

Sovereign Immunity as a defense will stay in place.

Positions of parties and interest groups State Department: has consistently

sided with the President in refusing to allocate seized assets to be used in paying judgments-that enabling the US Treasury to pay settlements gives the US greater coercive collecting power.

Victims: Disappointed. Will not have the ability to sue, however compensation was very minimum and winning by default rulings.

Positions of parties and interest groups Administration: (Advantage) The cases

and pursuits of compensation would no longer interfere with their foreign policy and diplomatic goals.

Foreign States: (In-Favor) Fewer worries about consular and diplomatic properties in jeopardy.

Domestic Consideration

The Presidential waiver enables the executive to refuse release of frozen assets in the name of national security.

US Treasury paid more than $350 million to victims.

Seized assets to pay settlements diminishes the leveraging power of the US.

Less problematic to foreign policy

International Consideration

Call for an “Independent national body for counterterrorism”Eradicate inefficiencies and remove overlap

among all current bodiesMaintain funding and enforcement

judgments.

Summary/Conclusion The Foreign Sovereign Immunities Act (FSIA) of 1976 and it’s

subsequent amendments permit restricting sovereign immunity to those nations who support terrorist activities, but have raised issues as to whether suits against these states should be allowed and how victims will be compensated if the suits do take place. Congress has tried to address these issues, however, the Administration in power continually fights them due to conflicts with international intentions and obligations. Therefore eliminating the FSIA will address the issues that Congress has yet to be successful with and protect foreign policy. The US should still continue to go after and put on trial the terrorists involved in terrorist attacks, but suing State Sponsors only seems to be superficial vindication for victims.

ReferenceAckerman, D. (2002, January). CRS Report for Congress. “Suits Against Terrorist States.” Retrieved September 2009 Fromhttp://fpc.state.gov/documents/organization/8045.pdf.

Elsea, J. (2005, April). CRS Report for Congress. RetrievedSeptember 2009 Fromhttp://www.law.umaryland.edu/marshall/crsreports/crsdocuments/

RS2209404042005.pdf.

Elsea, J. (2008, July). CRS Report For Congress. “Lawsuits Against State Supporters of Terrorism.” Retrieved September 2009 Fromhttp://assets.opencrs.com/rpts/RL31258_20080731.pdf.

Jeewon, K. (2004, Oct). Berkeley Journal of International Law. “Making State Sponsors of Terrorism Pay: A Separation of Powers Discourse Under the Foreign Sovereign Immunities Act.”

ReferencesGoodenough, P. (2009, April). Carter Era Agreement Again Cited in Bid to Block Iran Hostage Lawsuit. Retrieved September 2009 from http://cnsnews.com/news/print/47064.

Carey, C. (2009, September). Nashville Man Can’t Sue Iran for Father’s Death. Retrieved September 2009 from http://www.tennessean.com/apps/pbcs.dll/article?AID=/20090919/NEWS03.

Silverman, J. (2002, August). Tough Task for 11 September Lawyers. Retrieved September 2009 from http://news.bbc.co.uk/2/hi/americas/2199633.stm.

11 September Victims Sue Iraq. (2002, September). Retrieved September 2009 from http://news.bbc.co.uk/2/hi/americas/2237332.stm.