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Can Suing -- Not Just Indicting -- Be a Weapon Against Terrorists?

A Review of Civil Litigation Against Terrorism


Friday, Apr. 30, 2004

The new book Civil Litigation Against Terrorism, edited by John Norton Moore, is an outgrowth of a conference/workshop held at the Center for National Security law at the University of Virginia. The book contains several papers presented at the conference by prominent academics, along with a transcript of the workshop proceedings.

Together, these materials provide readers with an overview of the prospects for using the civil litigation system to deter terrorist acts, and to provide victims of terrorism with redress and remedies. The book's fundamental premise is that the civil justice system should be strengthened in the war against terrorism, to augment other means already at our disposal such as public and private diplomacy, economic sanctions, and universal (that is, global) criminal liability.

On the whole, the book is a timely and informative response to the terrorist acts of September 11. It attempts to provide a theoretical a well as practical roadmap as to how the civil justice system could be enhanced to deal with terrorists. And to my knowledge, it is the first book to do so in a comprehensive fashion.

But Civil Litigation Against Terrorism also has it weaknesses -- and may be better used as a resource, than read straight through.

The Book's Virtues -- and Its Flaws

Civil Litigation Against Terrorism is a useful resource, as it provides a series of papers that outline important aspects of its topic. Unfortunately, however, the various chapters are not woven together in a coherent fashion, and there is significant overlap and repetition in the coverage. Some chapters simply offer workmanlike summaries of the existing legal order; others, fortunately, offer more analysis. And the book is not for the general reader: It is technical at points.

Another disappointment is that the volume focuses almost exclusively on the American legal system. It offers little guidance, then, as to how other jurisdictions might grapple with the same issues -- a gap that seems particularly regrettable, given how crucial international law enforcement cooperation has proven to be in combating terrorism.

Despite these points, the book will prove useful to legal scholars, human rights activists and others more intimately involved with anti-terrorism initiatives in the legal arena. It provides a valuable resource in clarifying the scope of existing law, and the ambiguities inherent in applying certain American statutes in the anti-terrorism context.

The Kind of Anti-Terrorism Lawsuits Our System Already Allows

Some statutes already permit anti-terrorism civil suits

In the early 1990s, Congress enacted the Anti-terrorism Act (ATA). This statute, which is largely untested, allows for civil lawsuits for injuries sustained through an act of international terrorism. The statute was limited in scope. It excluded suits against foreign states and their agents, officers and employees.

In 1996, Congress enacted certain anti-terrorism amendments to the U.S. Foreign Sovereign Immunities Act (FSIA) that would permit limited lawsuits against state actors engaged in terrorism. But under the amendments, only listed terrorist acts, and certain foreign sovereigns -- those on the State Department's terrorist sponsor list -- could be the bases for suits.

(FSIA determines when civil lawsuits against foreign governments or their officials/agents may proceed in federal courts. Typically, foreign sovereigns are immune to such suits, but FSIA carves out some exceptions to the rule.)

These amendments have allowed suits against Iran, Iraq and Libya. Notably, Libya is taking the suit against it by the victims of the Pan Am 103 bombing seriously -- and Moore notes this as a sign that civil litigation may indeed be working.

The book's experts also note that other federal statutes -- such as the Torture Victim Protection Act and the Alien Tort Claims Act (ATCA) -- may provide avenues for victims who choose to sue non-state actors. But generally, the authorization for suits against non-state terrorist actors could be expanded.

Can Civil Lawsuits Deter Terrorism and Compensate Victims?

The book's editor, Professor John Norton Moore, is an expert on national security and international law at the University of Virginia provides. In his introduction

-- perhaps the most interesting segment of the book -- Moore mentions two goals that civil lawsuits against terrorists, terrorist organizations, and terrorist states could further: deterrence and compensation.

Moore notes, for example that "there is substantial evidence that the problem of war and terrorism is a deadly synergy between a nondemocratic decision elite and an absence of effective deterrence." By a "nondemocratic decision elite," he is referring to actors such as the Taliban or al Qaeda. By "the absence of effective deterrence," he is referring to the inability to prevent some terrorist attacks -- including devastating ones such as September 11's, or the recent Madrid bombings.

Deterrence could be improved, Moore argues, if we can convince terrorists that the result of the acts will be that "they . . . will be held liable for substantial monetary damages and their assets [will become] unreachable wherever they may be." Moore makes a domestic parallel to suits against the Ku Klux Klan's segments, which have resulted in multimillion-dollar judgments.

What about the second goal -- compensating victims? Moore stresses the importance of this goal, but he also notes that even when judgments are not enforceable, the suits that lead to them at least create a permanent record of the events, almost a truth telling, which also benefits victims.

Recording undocumented acts of violence in an authoritative forum, such as a U.S. court, can serve an important function for victims and for future generations. Such suits are also a way to preserve evidence all in one place; if the evidence is later stored by the parties, it can be consulted by historians and others.

Specific Suggestions for Better Anti-Terrorism Civil Justice

What specific changes to our system are warranted? Moore suggests convening expert groups to address this very question. And he considers tasks the groups might undertake -- such drafting new statutes and treaties that would supplement existing terrorism statutes. Other authors suggest that the U.S. should persuade other countries to enact similar statutes to its own laws in order to permit civil lawsuits against terrorists.

Two of the book's chapters offer roadmaps to the possible statutory/legal basis for civil lawsuits in United States courts. (One is Professor John Murphy of Villanova Law School; the other is by Professors Jack Goldsmith from the University of Chicago Law School -- who has written for this site -- and Ryan Goodman from Harvard Law School.) The authors of these chapters also provide discussions of the possible jurisdictional and practical impediments to being such civil suits in the United States.

As these chapters highlight, there are many obstacles to such lawsuits' success. For example, lawsuits against charitable organizations must be based on proof that they aided and abetted terrorism -- which can be hard to muster. And, to take another example, there are open questions as to whether the Alien Tort Claims Act encompasses acts of terrorism, and whether an expansive use of the ATCA is, in fact, constitutional.

Jurisdiction is especially tricky. Personal jurisdiction over individual terrorists may be hard to come by. (Sometimes "tag" jurisdiction -- as in "Tag, you're sued" -- can work, but rarely; few defendants are in the U.S. long enough to be served with a complaint or if they are here, it may be under a phony visa.) And terrorist organizations are typically unincorporated associations - which can only be sued if they have contacts with the U.S., such as maintaining offices here, or fundraising or campaigning here.

Finally, even if such suits do succeed, judgments may be difficult or impossible to enforce -- in part because it may be difficult or impossible to locate assets sufficient to satisfy them. (Al Qaeda does not overtly do its banking at Bank of America, after all.)

A More Theoretical Approach: The "Kissinger" Argument

Professor Ruth Wedgwood, from Yale Law School, provides a more theoretical approach to the discussion. Her chapter -- along with Professor Moore's introduction --

outlines some of the problems or criticisms raised by an expanded use of civil lawsuits to fight terrorism. These are interesting discussions that leave the reader wanting more.

One prominent argument is that of reciprocity -- the "Kissinger" argument. The argument goes like this: If the U.S. encourages lawsuits against terrorism in its courts, then other countries may allow similar suits to proceed against American assets abroad and American citizens. For instance, those states that consider Henry Kissinger a war criminal may well allow lawsuits making that very claim.

But Moore points out that international criminal liability already exists for the same terrorist acts. Adding civil liability therefore wouldn't worsen the situation much.

Moore also notes that if foreign nations simply copied the 1996 FSIA amendments, the U.S. would have nothing to fear, for it "does not and will not engage in this kind of terrorism around the world."

Another Theoretical Issue: Coping with Regime Change

Wedgwood brings up another important issue: What consequences will civil actions have when there is regime change? This is a live issue in Iraq right now. Will civil lawsuits against Saddam Hussein under the ATCA interfere with attempts to rebuild Iraq?

Wedgwood argues that perhaps the President should be given flexibility, such that the ability to bring lawsuits is in essence a revocable license to the plaintiff -- terminable at any time. So, for example, the U.S. government could choose to end ongoing civil lawsuits s against Iraq that are based on Saddam Hussein's crimes (if in fact, Iraq was involved in acts of terrorism), on the ground that Saddam is no longer in power, and there is a new regime.

Should the current Iraqi government have to pay for Saddam's crimes in U.S. courts? Certainly, one could argue both sides of this issue -- and also argue, as Wedgwood does, that it should be up to the U.S. government to give the answer.

Moore suggests that the U.S. should allow suits to go forward and that the blocked assets of the foreign state should provide U.S. victims with redress.

And what about a new democratic government? Moore suggests that Congress might provide it with foreign aids. But that would mean, oddly, that the U.S. was in effect footing the bills for Saddam's crimes -- which doesn't seem quite right either. On balance, Moore notes that successor states should typically be responsible for the past acts of previous leaders.

The balancing of interests here is indeed a delicate and difficult issue. And Civil Litigation Against Terrorism should be lauded for confronting hard issues like this one.

Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology.

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