The jury’s decision against the Palestinian Authority in a federal court in New York this week could shape up as the most important victory so far of a new kind of weapon against terror — the tort lawsuit. The judgment brought in this week was in a case levied for years by ten families whose members had been killed or injured in six terrorist attacks that took place in Israel more than a decade ago. The jury awarded the families $218 million in damages, but that sum is automatically tripled under American anti-terrorism law.
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Past experience, however, invites caution. The use of tort law against foreign governments like, say, Iran, has barely nicked the mullahs. The Palestinian Authority is probably going to have a harder time than sovereign nations like Iran and Cuba in dodging these claims. The mullahs and the Castros have so far escaped settlements with the families of the people they killed, despite that, in theory, the law under which they were sued strips terrorist nations of sovereign immunity from tort claims.
The law under which Iran and Cuba were charged is the 1996 Anti-Terrorism and Effective Death Penalty Act, the biggest of the anti-terrorism laws enacted during the 1990s. It was passed during a period when Congress had grown frustrated at the failure of America to act after the first bombing of the World Trade Center, in 1993, and the downing of Pan Am Flight 103 in 1988.
In a way, the law can be seen as part of the historic struggle in America between the president and the Congress for supremacy in foreign affairs. By stripping terrorist nations of sovereign immunity, the Antiterrorism and Effective Death Penalty Act of 1996 opened American courts to injured parties, including families of those killed or injured in terrorist attacks abroad, to file civil actions against them for damages.
The idea was that if the president was going to shrink from sending in warplanes to counter the threats of terrorism these nations posed, at least individuals could act.
The first big judgment under the law came against Cuba, in a case brought by a group called Brothers to the Rescue, which flies in support of Cuban “rafters” taking to the sea in an effort to flee the Castros’ communist regime.
Cuba had shot down two of the Brothers' Cessna Skymasters that had been leafleting Cuban territory, and four of their pilots perished. In the case that resulted, known as Alejandre v. Republic of Cuba, the U.S. court awarded the victims $187 million.
It was the Alisa Flatow case that really threw into sharp relief how difficult these prosecutions are. Flatow was a Brandeis University coed who was slain in the 1995 bombing of a bus at Kfar Darom, an attack that was traced to Iran. Her father, Stephen, a widely admired lawyer in New Jersey, sought redemption for years thereafter, and the case has become one of the most remarkable in history.
The Iranians refused to show in court when they were haled. So Judge Royce Lamberth handed down a default judgment in favor of Flatow for $247.5 million. Then the tables were turned. When Flatow attempted to seize Iranian government assets in the United States, the Clinton administration sent lawyers into court on the side of the Iranians. It feared the breach of diplomatic immunity would unravel the system on which diplomacy has been conducted for centuries.
This, incidentally, is a question to be put to Hillary Clinton if she enters the U.S. presidential campaign. It was her husband’s administration that went into court on the side of Iran. She herself was secretary of state for four years. Congress is clearly willing to break diplomatic immunity in terror cases. Is Mrs. Clinton?
In 2000, Congress stepped in and, in effect, bought out the claims of the Brothers to the Rescue, Alisa Flatow’s family, and several others, including Terry Anderson, who had been held for years. They all took steep discounts; the Flatow family settled for $25 million. Those who settled abandoned further claims to Iranian assets in the United States. In return for the settlements, the U.S. can keep any money it gets back if and when it settles its differences with Iran and Cuba.
Will it ever see payment under these claims? Does U.S. Secretary of State John Kerry have it on his scope, say, as he releases funds to the Iranians as part of the Obama appeasement of Iran now under way? Will the claim brought by the Brothers to the Rescue be pressed against the Cuban regime with which U.S. President Barack Obama now seeks to normalize relations?
It may be easier to enforce the claims against the Palestinian Authority, because it is not a sovereign nation in the same sense that, say, Cuba is and it is able to carry on at least some dealings with the free world. It is being sued under a different part of anti-terrorism law that Iran and Cuba were. Either way, the history of the use of tort law in the war against Islamist terror suggests that lawsuits are a poor substitute for military action.
Seth Lipsky is editor of The New York Sun. He was foreign editor and a member of the editorial board of The Wall Street Journal, founding editor of the Forward and editor from 1990 to 2000.