On January 21, 2002, the North Idaho College announced the donation of a tract of land located on Hayden Lake in Coeur d'Alene, Idaho. While land gifts are relatively common among universities and colleges, this one was special. The land in question had formerly been home to Richard Butler, the Church of Jesus Christ Christian, and an Aryan Nations Compound. Armed supremacists from compound had chased and held at gunpoint mother and son Victoria and Jason Keenan. Rather than be cowed, the two went to court, won a $6.2 million verdict, took the land and bankrupted the hate group. Seattle Times, at B2 (Jan 22, 2001). Morris Dees and the Southern Poverty Law Center have for years waged a similar civil assault on domestic terrorism. In 1998, they won a $37.8 million suit against the South Carolina Christian Knights of the Ku Klux Klan and its long-time leader Horace King, for the 1995 burning of Macedonia Baptist Church. The State, at B1 (Jan. 26, 2002). These lawsuits harnessed the economic incentives of the civil tort system to a morally righteous cause and denied these groups the financial wherewithal to spread their hate and violence. This article examines the efforts and mechanisms to elevate such domestic successes to the international arena.


At outset, it is worth remembering that the war on terrorism will be won principally with diplomacy, surveillance, human intelligence, and the threat and use of military and technological superiority. The purpose of this article to is to focus on one minor front in that war, one that is more important from the private individual's standpoint of vindicating basic human rights than from our national interest in defeating a common enemy. Nevertheless, part of the subtext of this article is that unleashing private legal actions against terrorists and their aiders and abettors will in most circumstances assist, rather than deter, the nation's common objective.

Thus, the purpose of this piece is, quite simply, to identify for attorneys and other interested parties the judicial means to expropriate the wealth that sustains terrorism. We begin with a brief overview.

I. Defining Terror

Speaking to the United Nations in the wake of the September 11th terrorist attacks, British Ambassador Jeremy Greenstock urged the body not to dawdle over the definition of terrorism.

Before concluding, Mr. President, let me touch on one controversial area where this assembly has a job to do. Increasingly, questions are being raised about the problem of the definition of a terrorist. Let us be wise and focused about this. Terrorism is terrorism. It uses violence to kill and damage indiscriminately to make a political or cultural point and to influence legitimate governments or public opinion unfairly and amorally.

Federal News Service, Remarks by Jeremy Greenstock, British Ambassador to the United Nations, Before the United Nations General Assembly (October 1, 2001). Mr. Greenstock's definition was a fair one, and one that we adopt here, but not without first pausing to acknowledge the debate which rages over the term. One man's terrorism may, of course, be another's freedom fighter. One need only compare the competing American and Soviet views of Sandinista Nicaragua and Soviet-occupied Afghanistan. Similarly, India and Pakistan have wildly different views of Kashmiri combatants. For decades, the so-called non-aligned movement sought international sanction for wars of "national liberation" and "anti-colonialism" to justify what to many in the West was common thuggery. On the other hand, in the context of world war between sovereign states, the West's views on "terror" have varied in the past century from universal condemnation of civilian bombing to widespread acceptance of the utilitarian necessity for the fire-bombing of Dresden and the nuclear attacks on Hiroshima and Nagasaki.

The problem with defining terrorism is in opening it sufficiently to capture the brutality perpetrated on September 11 and through other political crimes committed by dictators against their own people, while not opening legitimate leaders to suit for the decisions of a sovereign state, or businesses to suit simply for venturing into foreign countries with governments that have a less than perfect record on human right or legitimate rebel movements opposing brutal and oppressive regimes. [1] The good news is that the U.S. Code provides a clear-cut definition of "international terrorism" that essentially covers any violent act, that would be a crime if committed inside the United States, that is designed to intimidate a civilian population or influence the conduct of a government, and that primarily occurs outside the territory of the United States or that transcends national boundaries. 18 U.S.C. § 2331. The definition certainly leaves some areas gray, but does at least provide a statutory foundation. The not-so-good news is that numerous doctrines, legal principles, and judicial decisions continue to obscure the line between "actionable terrorism" (on the basis of which private litigants can bring suit in U.S. courts) and "sovereign terrorism" (which cannot give rise to private suits, and which can therefore be redressed only by our own sovereign government).

II. Terror Funds & Its Ill-Gotten Gains

Two types of funds should catch the eye of the enterprising attorney: the funds that make terrorism possible and the wealth of those who profit by it. As to the first, it likely states the obvious to note that international terrorism cannot be done on the cheap. Even the seemingly simple act of spraying a crowded street with a machine gun requires economic wherewithal. The weapon must be purchased or manufactured. It must be hidden. It must be placed in the right hands and in the right place. The terrorist must be recruited and trained (or at least brainwashed), and escape plans must be drawn up (if an escape is planned). The more complicated the mission, the more expensive it will be, whether it involves flight lessons, explosives or biochemistry. Of course, behind each terrorist perpetrator stand those responsible for recruiting, training and planning. They too require funding for travel, security, bribes, recruitment, funding for "martyrs'" families, and so on.

While Osama bin Ladin is independently wealthy, he is the exception to the rule: rarely do terrorists and their money hail from the same neighborhood. The conditions that produce young men willing to blow themselves up rarely create the concentrated wealth necessary to fund such destruction. Most terrorists rely on sponsors, both individuals and governments, from Saudi Arabia and Iran all the way to the United States. Such funds are donated to a variety of "causes," some overtly militant and some less obviously so. They are rarely given directly, but rather pass from group to group, through banks and money transfer systems and across borders. Sometimes these funds do ultimately purchase food for the poor and blankets for the needy. Sometimes, they purchase the guns, ammunition, and explosives necessary to kill innocent civilians.

Standing apart from the funds that enable terrorism is the wealth accumulated by those who profit from it. A curious fact of despotism seems to be the rapid accumulation of wealth. Pillaging and looting is a millennia-old autocratic tradition: the Nazis raped Europe, communist apparatchiks had party stores, Saddam Hussein built palaces, and Imelda Marcos, of course, had her shoes. Such wealth rarely stays put but rather is spirited away to foreign bank accounts and invested in tangible assets in safe locations in stable countries, where it will be safely stored for a rainy day.

Both types of funds are integral to the terrorist effort, one as a means and one as a motive. Denying terrorists and their sponsors these financial vehicles will undermine their ability to execute their evil. Such assets are, moreover, a key ingredient to undoing the terror network. Financial transactions link donors and facilitators to planners and murderers. Where the terrorist pulling the trigger is guilty of murder, the planner and financier are every bit as guilty of aiding and abetting. The United States government has certainly recognized this by targeting the financial network supporting terrorism. But, as with all government programs, there is only so much the government either can or is willing to do.

Where government leaves off, the private tort system can step in. Wherever assets belonging to or headed to terrorists pass through the United States, through an American bank abroad, touch a foreign corporation or bank with domestic assets, or simply alight where a judgment might be enforced against them, the civil court system may be able to reach them. Ultimately, were the same aggressive energy with which the plaintiffs' bar has pursued mass tort litigation to be turned on identifying and attacking such assets, private initiative may well prove as successful as government efforts in shutting down the flow of terrorist funding.

III. The Legal Tools & Pitfalls

Having identified the goal, the question of course remains how to do it. In purely domestic matters, state common law and state and federal statutory law provide relatively simple causes of action under which private plaintiffs can pursue those who have aggrieved them. Such suits not only provide financial compensation to the victim and punishment to the criminal, but also, because of the lower standards of proof, among other things, may provide the victims with the only measure of "abstract" justice they can obtain. See e.g. Rufo v. Simpson, 103 Cal. Rptr. 2d 492 (Cal. Ct. App. 2001) (upholding jury verdict against O.J. Simpson); Allen v. City of Los Angeles, CV 91-2497 JGD, 1995 U.S. Dist. LEXIS 13929, at * 9 (C.D. Cal. Jan 13, 1995) (noting $4 million jury verdict in favor of Rodney King for beating by police).

Suits involving international terrorism or political violence, however, are not so straightforward. In this context, sovereign immunity, personal jurisdiction, the political question and act of state doctrines, the doctrine of forum non conveniens, and the Executive Branch's prerogative to seize and control assets, all conspire to complicate life for even the most deserving of plaintiffs. Nevertheless, United States law increasingly provides a forum for terrorist victims. Over the past two decades, this country has become a world leader in providing a judicial forum for private rights of action against foreign terror groups and the regimes that support them. Even while locating and attaching terrorist assets remains difficult, a judgment from a United States court holding a certain person or organization accountable for terrorist acts has tremendous symbolic value, and can serve as a "judicially imposed sanction" which may be enforced wherever those assets hide.

This paper seeks to summarize the different ways in which terrorist organizations or their supporters can be sued in the United States, and to briefly outline the major open issues raised by these
actions. [2] In particular, this paper focuses on the all-important role of the United States Government: as Congress has expanded judicial jurisdiction to facilitate such cases, the Executive Branch has at times complained that the courts' were impinging upon the executive's constitutionally designated role in conducting foreign affairs, and has sought ways in which it could control or influence such private litigation. As such, the Executive's view of any given lawsuit may be the single biggest factor influencing the likelihood of success.

In light of that critical role, this paper culminates with a discussion of why the Executive Branch should view these private actions as beneficial to its general effort to combat terrorism, and argues that the Executive should therefore adopt a principled approach that will encourage the robust development of these private actions. While private civil actions against foreign governments or even foreign organizations accused of terrorist wrongs may raise serious issues of sovereignty and comity, and may even on occasion run the risk of interfering directly with actions by the law enforcement, national security, or diplomatic arms of government, these problems are best addressed through the development of clear rules of law that nonetheless allow for the maximum degree of private action under the law. The benefits of promoting private actions to the maximum extent consistent with Executive Branch operations include expanding the range of actors who may be held to account for supporting the enemies of freedom, disseminating information on culpable parties, and allowing for private parties to seek justice under the law.


I. The Basic Parameters

As explained in more detail below, the first question that must be asked in any case that seeks redress for acts of international terrorism is whether a federal court can be persuaded that it has personal jurisdiction over the particular defendants the plaintiff might like to sue. Assuming that personal jurisdiction can be established, the basic, and at times paradoxical, parameters of the U.S. laws governing the ability of victims of terror or crimes against humanity to bring suit in American courts can be summarized as follows:

Causes of Action:

  1. Antiterrorism Act ("ATA"): An American victim can sue a terrorist, terrorist organization, or, subject to litigation that is currently pending, an organization that provides material support to a terrorist organization, under the ATA;
  2. Torture Victim Protection Act ("TVPA"): Both Americans and non-Americans can sue individuals who are responsible for acts of "extrajudicial killing" or torture committed under color of foreign law, pursuant to the TVPA, but only if it is shown that there is no adequate alternative forum in the place where the act occurred;
  3. Antiterrorism and Effective Death Penalty Act ("AEDPA"): While TVPA suits are normally brought against foreign government officials acting outside of their official capacity, foreign government officials acting within their official capacity are generally immune from suit, as are foreign states themselves; however, under the AEDPA, an American victim of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such act may sue any foreign state, or any of its agents or officials, if that foreign state was designated by the Executive Branch as a "state sponsor of terrorism" at the time the act occurred, or subsequently as a result of such act. At present, the state sponsors of terrorism are Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria; [3]
  4. Common Law Tort: State tort law is available to both aliens and American plaintiffs, subject to the doctrine of forum non conveniens, among other restraints; this doctrine had not been held to prevent suits brought under any of the federal causes of action discussed here;
  5. Alien Tort Claims Act ("ATCA"): Finally, the ATCA gives an alien, but not an American, a right to bring a claim in federal court based upon a "violation of the law of nations," which includes claims based upon terrorism as well as other violations, though the precise parameters of this statute have not yet been defined by the Supreme Court.

Role of U.S. Government:

  1. The Government has a statutory right to stay any action brought under the ATA or the AEDPA in order to avoid any interference with a criminal investigation;
  2. The Government has asserted its right to "suggest" a binding recommendation of immunity for government officials named as defendants in any case brought under the TVPA or the ATCA;
  3. If the U.S. Government has already frozen or seized the assets of the country, entity, or individual against whom the judgment is imposed, then it is normally not possible for an American plaintiff to enforce a judgment against those assets, although in two recent cases Congress passed legislation to require the President to release at least some portion of frozen assets to satisfy outstanding judgments.

The specific details on these parameters, as well as the other relevant constraints that apply to these cases, are set forth below.

II. How To Sue A Terrorist: The Statutes And Cases You Should Know

Recent legislation and jurisprudence have made it increasingly possible for the individual victims of international terrorism to seek civil damages in an American court. Statutes and their judicial gloss provide various remedies.

A. Personal Jurisdiction

The first, and frequently the most important, step in prosecuting an action seeking redress for an act of terror is establishing jurisdiction over the named defendant in the American court in which he or it is sued. No law or doctrine has yet lowered the jurisdictional bar governing foreign defendants sued for perpetrating acts of international terror. However, in some cases courts have been willing to apply existing standards quite liberally. See, e.g. Wiwa v. Royal Dutch Shell, 226 F.3d 88 (2d Cir. 2000) (finding sufficient contacts to establish personal jurisdiction and reversing dismissal on grounds of forum non conveninens); Doe v. Karadzic, 93 Civ. 0878, 1996 U.S. Dist. LEXIS 5291 (S.D.N.Y. April 22, 1996) (asserting personal jurisdiction over defendant served through U.S. Secret Service Agents guarding him).

Suits seeking redress for international terrorism and state sponsored violence are subject to the same standards of personal jurisdiction as any other suit in an American court. Congress has, however, provided some guidance on how service of process may be effected under the ATA. Under FRCP 4(k)(1)(D), "service of a summons . . . is effective to establish jurisdiction over the person of a defendant when authorized by a statute of the United States." And in Section 2334(a) of Title 18, Congress has provided that "process in [a civil action under the Antiterrorism Act] may be served in any district where the defendant resides, is found, or has an agent." While this statute and FRCP 4(k)(1)(D) does not relieve plaintiffs of having to satisfy constitutional due process, it does at least provide some guidance as to how a particular federal court may be able to exert personal jurisdiction. See Ungar v. Palestine Authority, 153 F. Supp. 2d 76, 91 (D.R.I. 2001) (exerting personal jurisdiction over Palestine Authority and Palestinian Liberation Organization under FRCP 4(k)(1)(d) and 18 U.S.C. § 2334(a)).

Thus, while the various states may ratchet up the requirements for jurisdiction, the basic federal constitutional standards govern in most instances. The most basic constitutional form of jurisdiction is personal service-"tag" jurisdiction. If the defendant is physically present within the jurisdiction of a United States court when served with process in a case filed with that court, then that court has personal jurisdiction over that defendant. See Burnham v. Superior Court, 495 U.S. 604 (1990) (upholding personal jurisdiction by service); Doe v. Karadzic, 93 Civ. 0878, 1996 U.S. Dist. LEXIS 5291 (S.D.N.Y. April 22, 1996) (same). This standard is by no means easy to satisfy, particularly when the defendant is a government official or visiting dignitary with U.S. Secret Service protection, but, even under these circumstances, plaintiffs have been successful in effectively serving process. Id.; Chiminya v. Mugabe, 169 F. Supp. 2d 259, 267 (S.D.N.Y. 2001).

For defendants who cannot be personally served, such as non-visiting dignitaries and organizational defendants, a plaintiff must demonstrate satisfaction of the Supreme Court's familiar "minimum contacts" tests. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987); Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); World-Wide Volkswagen Corp. v.Woodson, 444 U.S. 286 (1980). For organizational defendants, this ordinarily requires the organization to have either offices or property located in the United States or some regular domestic business activity. See generally Wiwa, 266 F.3d at 95-99 (finding personal jurisdiction where corporation maintained New York-based investor relations representatives, which constituted a substantial corporate presence); Ungar, 153 F. Supp. 2d at 91 (supra). States can further define the personal jurisdiction available in their courts. Klinghoffer v. PLO, 937 F.2d 44, 50 (2d Cir. 1991) (finding subject matter jurisdiction in an admiralty suit under New York's "doing business" statute).

Finally, when a plaintiff sues a country susceptible to suit under the AEDPA, courts apparently will accept personal jurisdiction over the defendant, notwithstanding the fact that the foreign state may no longer have substantial contacts with the United States. See, e.g., Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998); Alejandre v. Telefonica Larga Distancia de P.R., Inc., 996 F. Supp. 1239 (S.D. Fla. 1997).

B. The Causes of Action

The basic parameters of the various causes of action are set forth above. However, any prospective plaintiff ought to consider these various avenues carefully, since they overlap in sometimes unpredictable ways, and since they offer different advantages depending upon who the defendant is. As set forth below, each statute has its own unique history and evolution, and Congress has yet to consolidate or harmonize these various causes of action into a fully coherent system.

The Anti-Terrorism Act (18 U.S.C. § 2333(a))

In 1992, Congress enacted a statute that specifically provides for a cause of action based upon any act of "international terrorism" that harms the person, property, or business of a U.S. national. Codified at 18 U.S.C. § 2333(a), this statute was originally enacted as the Antiterrorism Act of 1990, but was repealed in 1991 because the Conference Committee on the 1990 legislation had intended to delete the provision before passage, but had failed to do so due to a clerical error. Nevertheless, in 1992 Congress re-enacted the statute in identical form as the Antiterrorism Act of 1992, and this time apparently really meant it. While it is not normally referred to by a shorthand name, this statute will be referred to in this article as the Anti-Terrorism Act ("ATA"). The ATA is still in its infancy, having been directly applied in only two published cases, but, depending upon the interpretive gloss given to it by courts, could be a potent litigation weapon.

The text of the statute is as follows:

Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may therefore in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees.

18 U.S.C. § 2333(a).

Section 2331 of Title 18, in turn, defines the term "international terrorism" as "activities that":

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State:

(B) appear to be intended----
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination or kidnapping; and,

(C) occur primarily outside the territorial jurisdiction of the United States, or
transcend national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.

Congress has also made it a criminal offense to provide "material support or resources . . . knowing or intending that they are to be used in preparation for, or in carrying out," an act of international terrorism, 18 U.S.C. § 2339A, or to provide "material support or resources to a foreign terrorist organization." 18 U.S.C. § 2339B. [4]

In light of September 11 and the reality that terrorist attacks will occur on United States soil, plus the often-forgotten fact that numerous Americans live abroad in countries that are even more frequently the situs of terrorist attacks, see e.g. Ungar, 153 F. Supp. 2d 76 (hearing claim brought by American family resident in Israel), the ATA can be expected to be increasingly invoked in coming years.

The Alien Tort Claims & the Torture Victim Protection Act (28 U.S.C. § 1350)

In addition to terrorist activities, a growing body of law allows victims of serious human rights violations, which includes acts of international terrorism, to sue the perpetrators of those violations in U.S. federal court. This body of law, found under the Alien Tort Claims Act ("ATCA") and the Torture Victim Protection Act ("TVPA"), both codified at 28 U.S.C. § 1350, even extends its reach to foreign victims.

Quite possibly the most bizarre statute in the entire U.S. Code, the ATCA was enacted in the First Judiciary Act of 1789, and reads as follows:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

28 U.S.C. § 1350.

While it meant practically nothing for close to two hundred years, the ATCA became the darling of international human rights lawyers around the world when the Second Circuit breathed life into it in its 1980 decision in Filartiga v. Pena-Irala, reading it to make actionable general human rights standards. 630 F.2d 876, 880 (2d Cir. 1980) ("In light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice), we find that an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations."). There, the second Circuit allowed a Paraguayan family to use the ATCA to sue a Paraguayan general for the torture and murder of their son in Paraguay. The general was served with process while in the United States, where the victim's family resided at the time of the suit. No other nexus to the United States existed. The family was ultimately awarded judgment in the amount of $10,385,364. Filartiga v. Pena-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984).

Subsequent appellate opinions have differed on whether the Second Circuit erred in so reading the ATCA, permitting suits alleging extra-territorial wrongdoing to be brought against non-resident, non-Americans, requiring nothing more than personal jurisdiction over the defendant. The most forceful dissent from the Filartiga jurisprudence came from Judge Bork in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), where he dismissed the notion that the framers of the First Judiciary Act had anything in mind other than discrete causes of action for piracy or "assaults against ambassadors" when they enacted the ATCA.

In 1992, Congress largely put this jurisprudential controversy to bed when, pursuant to its obligation to ratify and execute the United Nations Convention Against Torture, it enacted the TVPA, which was specifically designed to provide an "unambiguous" cause of action for both aliens and U.S. citizens injured by acts of torture or extrajudicial killing committed under color of foreign law. See 102 s. Rpt. 249 (Nov. 26, 1991) (TVPA to provide "an unambiguous basis for a cause of action that has been successfully maintained under" the ATCA). While the legislative history was mysteriously quiet about whether the ATCA had been properly interpreted to provide a cause of action for violations of other international human rights, it quite clearly codified the Filartiga jurisprudence with respect to actions based on murder and torture. It also explicitly required a plaintiff to show exhaustion of local remedies in the place where the crime occurred, to the extent "adequate and available." TVPA at § 2(b). [5]

Although the TVPA has been very popular with international lawyers representing foreign plaintiffs, its value to the American victim of terrorism has been largely underutilized. The major exception to this underutilization is the fact that, in a sense, both the TVPA and the ATCA - the progenitors of a private cause of action for the victims of international oppressors and terrorists - have been incorporated into the 1996 exception to the Foreign Sovereign Immunities Act, discussed below. This exception, coupled with a cause of action that largely regurgitates the TVPA, has itself become the most frequently used litigation weapon for victims of terrorism.

AEDPA: The Foreign Sovereign Immunities Act and the Civil Liability Act

Before 1996, it was not possible to sue a foreign state for terrorist acts that lead directly to the death of U.S. citizens, unless those acts occurred inside the United States. Compare Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996), with Letelier v. Republic of Cuba, 488 F. Supp. 665 (D.D.C. 1980). In 1996, however, as part of the AEDPA Congress amended the Foreign Sovereign Immunities Act ("FSIA") to provide that those states that are identified by the State Department as "state sponsors of terrorism" may be sued by American victims for acts of torture or extrajudicial killing, as defined in the TVPA. 28 U.S.C. § 1605(a)(7). In addition, section 1605(a)(7) covers additional terrorist crimes, including aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such acts. Thus, while AEDPA directly cites to the TVPA for the definition of "extrajudicial killing" and "torture," and while it references section 2339A, it does not make any mention of the ATA's creation of a general private right of action based upon acts of international terrorism. This appears to have been a drafting oversight, since AEDPA's laundry list of crimes that are now actionable against certain foreign governments seems to encompass the ordinary range of "terrorism" - though it is, to be sure, narrower than the expansive definition of 18U.S.C. § 2331 that governs the ATA. And while the AEDPA laundry list is broader than the two crimes which the TVPA makes actionable, AEDPA actions may be stayed by the U.S. Government, whereas TVPA actions may not be.

Nevertheless, while it appears not to have been properly coordinated with either the ATA or the TVPA, the AEDPA has effectively become the most frequently cited and thus far most successful litigation tool for Americans suing terrorists. The states listed as of February 1, 2002, were Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria. [6] There have been more than a dozen cases brought under the AEDPA, most of them against Iran, and hundreds of millions of dollars in compensatory and punitive damages have been awarded.

Of course, the AEDPA merely rescinds immunity, and does not itself provide a cause of action. Nevertheless, plaintiffs suing under the AEDPA have no trouble finding an applicable cause of action to invoke: they can invoke either the TVPA or state tort law; in addition, right after enacting the AEDPA, Congress added a statutory note that provides an enforcement mechanism for the AEDPA immunity exception. See Pub. L. No. 104-208, § 589, 110 Stat. 3009 (codified at 28 U.S.C.A. § 1605 note) ("Civil Liability Act"). As discussed below, the Civil Liability Act is frequently referred to as the "Flatow Amendment."

State Tort Law

In state tort law, which may include the tort law of the foreign country where the act of terrorism took place, plaintiffs will find a well-established mechanism for bringing wrongful death and personal injury claims, as well as claims based on damage to private property, causes of action within which most victims of international terror or political violence can cast their injuries. State law has long permitted victims and relatives to hold accountable the perpetrators of violent acts and those who aid and abet them for wrongful death, assault and battery, and subject them to both compensatory and punitive damages. Subject to its ordinary jurisdictional constraints, state tort law has often been used by victims of brutal crimes to seek justice that, for one reason or another, the Government's law enforcement efforts has proved powerless to vindicate. See, e.g., Rufo v. Simpson, 103 Cal. Rptr. 2d 492 (Cal. Ct. App. 2001) (upholding jury verdict against O.J. Simpson); Allen v. City of Los Angeles, CV 91-2497 JGD, 1995 U.S. Dist. LEXIS 13929, at * 9 (C.D. Cal. Jan 13, 1995) (noting $4 million jury verdict in favor of Rodney King for beating by police).

A state tort suit based on terrorist acts could, at least in theory, be brought in state court. State courts are (with few exceptions) courts of general jurisdiction. Unless the state has by statute or court rule limited its courts' jurisdiction to preclude such actions, state courts ought to have the requisite subject matter jurisdiction. A state court may, however, be reluctant to exercise that jurisdiction and preside over a case raising allegations of misconduct occurring not only outside the state but also outside the United States, and may therefore dismiss the case based on the doctrine of forum non conveniens. See, e.g., Piper Aircraft Co v. Reyno, 454 U.S. 235 (1980). Principally for this reason, the general rule is that state tort law appears in the context of terrorism litigation only as follow-on, pendent claims. Nevertheless, it is conceivable that as the notion of suing terrorist organizations and supporters develops and becomes more accepted, state tort claims will become more popular.

Indeed, given this backdrop, it is worth asking why it is that any of the causes of action set forth by federal statutes such as the ATA, the TVPA, and the AEDPA (plus the Flatow Amendment) are even necessary. Clearly, the estate and heirs of a U.S. citizen who has been murdered or tortured has a "cause of action" against the perpetrators of those wrongs. Thus, the important issue is simply whether the court has personal jurisdiction over the defendant (an analysis that has not really been changed by statute, see above), and whether the defendant is immune. The purpose of providing federal causes of actions, then, appears to be principally to ensure that federal courts have jurisdiction over these causes of action, and to implicitly make it more difficult to assert the defense of forum non conveniens.

But given that Congress has created federal causes of action that are simply analogous to state tort law causes of action, it is important to understand how state tort law can be used to avenge a murder or other crime of violence, which are often committed by judgment-proof defendants. One issue of particular importance is the question of how to impose liability on parties that are not directly culpable for the "tortious" act of violence or terror, but rather are culpable (if at all) only in the indirect sense of being associated with, and hence generally supportive of, the tortfeasor. The leading case on this question is Halberstam v. Welch. 705 F.2d 472 (D.C. Civ. 1983) There, the wife of prominent murder victim Michael Halberstam sued the live-in girlfriend of her husband's murderer. The murderer was apparently a highly successful burglar who for over five years had amassed a small fortune by going out on nightly "excursions" in which he would loot the homes of well-to-do suburban families, absconding particularly with their jewelry and silver, which he later would melt down into ingots which he sold into Canada for massive profits. His girlfriend lived with him throughout the time that he developed this business and accumulated well over a million dollars in wealth. Her role, while factually disputed at trial, appears to have been to keep a bank account in her own name, into which she deposited all the checks from the sales of the "business." She claimed not to have known what her boyfriend did on his evening excursions, not to have noticed the multitude of boxes of jewelry, silver, and other household items stored away in the basement, and not have questioned why the business account had only income, no expenses. The district court found that she was "generally aware" of her boyfriend's malfeasance, and was supportive of it. That, plus the undisputed tort of her boyfriend's murder of Halberstam, were sufficient to impose tort liability on her under the general principle of "aiding and abetting" a tort. See Boims v. Quaranic Literary Institute, 127 F. Supp. 2d 1002 (N.D. Ill. 2001)

In the closing paragraph of the Halberstam opinion, Judge Wald (joined by panelists Scalia and Bork) seemed to recognize the potentially sweeping implications of the ruling: "Yet the implications of tort law in this area as a supplement to the criminal justice process and possibly as a deterrent to criminal activity cannot be casually dismissed. We have seen the evolution of tort theory to meet twentieth century phenomena in areas such as product liability; there is no reason to believe it cannot also be adapted to new uses in circumstances of the sort presented here. This case is obviously only a beginning probe into tort theories as they apply to newly emerging notions of economic justice for victims of crime." Id. at 489.

As discussed below, Halberstam may prove to be the leading case in helping courts today figure out how best to handle private lawsuits seeking to impose liability on the American "aiders and abettors" of international terrorism.

* * * * *

Thus, the combined vehicles of state tort law, the ATA, the TVPA, and the AEDPA provide victims of terrorist acts with a healthy arsenal of litigation weapons to use against their enemies. We have not treated them at great length because on their own merits they are quite straightforward. The real trick in bringing such an action lies not in defining the legal grounds for redress but in leaping the jurisdictional, procedural and other hurdles that will be thrown in the litigant's way. Many important constraints, some of which reflect traditional jurisdictional principles, and some of which reflect the all-important, but still undefined, role of the Federal Government, cabin these suits. A discussion of some of the leading examples of terrorism litigation helps illustrate this.

C. Leading examples of terrorism litigation

As discussed above, plaintiffs may avail themselves of any of three major vehicles for bringing an action against foreign terrorists, political criminals, or those who aid and abet them: state tort law, the ATA, and the TVPA. Each has varying constraints. Set forth below is a discussion of the leading cases in each area dealing with claims against terrorism or political crimes more generally.

1. State and foreign tort law: Klinghoffer v. PLO

One prominent case that deserves to be mentioned in the context of using state tort law to redress acts of international terrorism is Klinghoffer v. PLO, 739 F. Supp. 854 (S.D.N.Y. 1990), aff'd in part and rev'd in part, 937 F.2d 44 (2d Cir. 1991). In Klinghoffer, the family of an American citizen, killed when Palestinian terrorists threw his wheelchair from the side of a ship into the Mediterranean Sea, brought an action against the cruise line and related businesses whom they alleged were negligent in their security. Those defendants, in turn, impleaded the Palestinian Liberation Organization ("PLO") as a defendant. Because they also pled claims under general maritime law and the Death on the High Seas Act, 46 U.S.C. § 761-68, the plaintiffs were able to bring their action, including their state law tort claims, in federal court.

The district court ultimately found that it had personal jurisdiction over the PLO under New York's "doing business" standard. 816 F. Supp. 930, 934. Based on parameters handed down by the Second Circuit, 937 F.2d 44, 51, the district court was constrained in its analysis to considering only the PLO's "non-U.N. related contacts" with New York in determining whether there was sufficient contact to establish personal jurisdiction. In addition, in order to determine whether New York's rules or the Federal Rules governed the determination of how process should have been served, the district court concluded that Italian law rather than any Federal statute would govern the determination of liability - thus concluding that the theory of liability against the PLO was grounded upon what is essentially a "state law" theory. 795 F. Supp. 112, 116. After jurisdiction was thereby established, the case apparently went through a number of years of discovery, culminating in a final settlement paid by the PLO directly to the Klinghoffers, ending the case twelve years after it was filed. The PLO's Permanent Observer, of course, issued a statement at the time of the settlement denying all responsibility for Mr. Klinghoffer's murder. While the amount of the settlement was not publicly disclosed, some news publications reported rumors of a payment in the tens of millions of dollars. See "PLO Settle With Family of Achille Lauro Victim," The Times (August 13, 1997).

The Klinghoffer case is remarkable both for the fact that it happened at all, and for the fact that it has not happened more often since. There appears to be only one other case currently proceeding against the PLO in U.S. courts. Ungar v. Palestine Authority, 153 F. Supp. 2d 76 (U.S. Dist. LEXIS 2001). Perhaps because the litigation dragged on for so many years, the full implications of the plaintiffs' success may not yet have been fully internalized by American trial lawyers. In any event, as discussed below, the Klinghoffers determination to avenge the brutal murder committed on the Achille Lauro stands as a path-breaking success to use the American legal system to hold terrorists and their allies to account.

2. The ATA (18 U.S.C. § 2333)

The ATA entitles an American national injured in his or her person, property, or business "by reason of an act of international terrorism," to "sue therefore in any appropriate district court of the United States and . . . recover threefold damages he or she sustains and the cost of the suit, including attorney's fees." This statute intentionally build upon the Klinghoffer litigation to ensure that terrorist torts would be actionable in federal court even if they occurred on land in a foreign country (i.e., even if the Death on the High Seas Act were unavailable as a means of providing federal court jurisdiction). Antiterrorism Act of 1990, Hearing before the Subcommittee on Courts and Administrative Practice, 101st Cong. 2d Sess., at 12 ("ATA Hearing"). The legislative history makes clear that the enactment of the ATA was intended to "remove[] the jurisdictional hurdles in the courts confronting victims and [to] empower[] victims with all the weapons available in civil litigation." 137 Cong. Rec. 8143 (1991).

But despite its goal to "accord victims of terrorism the remedies of American tort law," id., the ATA has only been invoked by plaintiffs in two different cases in the decade since it was passed. This may be in part because it does not allow suits against foreign government officials, and because foreign governments who are state sponsors of terrorism may now be sued under the AEDPA. Another reason, however, may be the uncertainty as to the scope of the causes of action that it authorizes, as illustrated by the cases below.

(a) Hamas Supporters In Our Midst: Boims v. Quaranic Literacy Institute [7]

In Boims, the American parents of a teenager killed by Hamas terrorists in Israel in 1996 brought suit against a variety of U.S. organizations they alleged provided funds and other support to Hamas. The case raises the cutting-edge issue, analogous to that raised in Halberstam, of whether it is possible to hold groups liable when they have provided general financial support for an organization that is known to engage in terrorist activities, but who cannot be proved to have actively supported or assisted in (or even known about) the one particular act of international terrorism that harmed the plaintiff.

The defendants in Boims moved to dismiss, arguing that their (alleged) provision of generic financial support to Hamas did not satisfy the statutory definition of an "act of international terrorism," and that therefore the Boims had no right to sue them under the ATA. 127 F. Supp. 2d at 1011. To support their defense, the defendants pointed to the plain language of the ATA, the definition of international terrorism, and to the Supreme Court's decision in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994), in which the Court held that there was no private right of action for "aiding and abetting" a violation of Rule 10(b) of the Securities and Exchange Act.

Judge Lindberg denied the motions to dismiss. He framed the question as whether the allegations leveled against the defendants -- making financial contributions to a terrorist group -- satisfied the definition of an act of international terrorism. Specifically, the question was how to construe the words "activities that . . . involve" which introduce section 2331(1) (defining the term "international terrorism"). After rejecting arguments advanced by the plaintiffs (who would have defined "activities involving" as covering all acts that assist in providing the organizational infrastructure for a terrorist group) and those advanced by defendants (limiting "activities involving" to the acts of those who actually perpetrate the violent act), the Court agreed that the statute should be interpreted in light of Congress's subsequent enactment of statutes outlawing the provision of any material support to any international terrorist group or terrorist act. Id. at 42-43 (discussing 18 U.S.C. §§ 2339A and 2339B). Based on these statutes, the Court concluded that Congress must have intended the term "activities that involve" that appear in section 2331 to include the generic provision of support outlawed in section 2339A and 2339B. Thus, the Court concluded that by giving money to support a terrorist organization, the U.S. organizational defendants had committed an act of international terrorism, and could therefore be sued under the ATA. Under the Court's analysis, while the provision of financial support need not have been specifically linked with the violent act that injured the plaintiff, it did have to be both "knowing" and "material" -- so that a contributor who knew nothing about Hamas' terrorist activities or who gave only a minute amount of money could not be held liable.

In addition, because the plaintiffs were suing for acts (the contribution of financial support) that occurred before the enactment of sections 2339A and 2339B, the Court held that plaintiffs could also prevail under a theory of "aiding and abetting" -- i.e., that plaintiffs could sue any defendant who could be shown to have "aided and abetted" international terrorism. The rationale for this conclusion was similar to the Court's rationale relying upon sections 2339A and 2339B: section 2331 provided a private right of action based on acts of international terrorism, and since Judge Lindberg held that aiding and abetting an act of international terrorism could satisfy the definition of an act of international terrorism (because it could "involve violent acts"), the Court held that section 2331 gave a private right of action based on the acts of aiding and abetting (which plaintiffs would therefore need to prove in order to recover under this theory). Id. at 1017-18.

Judge Lindberg's decision is now on appeal before the Seventh Circuit. Most interesting to note is the amicus brief submitted by the United States, urging the appeals court to affirm Lindberg's ruling. The Government's brief states that "the district court here erred to the extent it looked to 18 U.S.C. §§ 2339A and 2339B . . . in determining the scope of Section 2333(a), and in apparently restricting aiding/abetting liability to the criminal version of that doctrine," but argues that Judge Lindberg's ruling should be affirmed based upon a more straightforward and potentially a more expansive legal theory that justifies the same result. According to the United States, section 2331 incorporates a basic theory of generic tort law, whereby any tort that is connected to an act of international terrorism is properly the subject of a suit under the ATA. Citing Halberstam, the United States then argues that since "aiding and abetting" is an established tort, the Boims' claim that their named defendants had aided and abetted Hamas in its terrorist activities was properly actionable under the ATA.

This appears to be sound, and to provide a far clearer basis for denying the defendants' motion to dismiss than does the Court's rationale that seeks to import the statute criminalizing the provision of material support to terrorists into the statute providing for a civil private right of action based on "acts of international terrorism." The United States' brief, however, does not identify the source of the tort law principles to be applied through section 2333(a). While at one stage stating that the principles in Halberstam "describe federal common law," the Government does not directly address this issue. It argues that Boims should be analyzed "as a standard tort case," and then refers generally to "background tort principles that Congress presumably intended to incorporate" into the ATA. Later, the Government references testimony in the legislative history to the ATA to argue that the statute was intended to build upon the Klinghoffer ruling, and to ensure that similar suits would be possible even if the tort occurred on foreign soil, and not on the high seas. This is a compelling interpretation of the ATA, and suggests that Klinghoffer may be a guide in determining what tort principles ought to apply under the ATA.

In its discussion of Klinghoffer, the Government notes that "[l]iability under the Death on the High Seas Act is defined by federal case law developed under the statute." USA Br. at 12 n.5 (citation omitted). This implies that some sort of federal common law governs there, and therefore should also govern under the ATA. That would certainly be the best result and one that presumably would allow for the development of a uniform jurisprudence. It should be noted, however, that where the defendant's malfeasance occurred outside of the United States, the Klinghoffer litigation (discussed above) suggests that the tort principles of a foreign country might govern. 795 F. Supp. 112, 116. In any event, because the malfeasance in the Boims case is the provision of financial support to Hamas, and because that support was provided from the United States, the correct result there would certainly seem to be that a federal common law of tort - essentially, an appeal to generic tort law principles, especially as applied by federal courts - ought to govern whether the Boims defendants are liable for "aiding and abetting" the murderers of David Boims.

There does not appear to be a great deal of analogous law on the question of how to establish aiding and abetting tort liability. Mostly, the issue comes up in the securities area. See Halberstam, 705 F.2d 745. The Government's brief cites to Section 876 of the Restatement (Second) of Torts, (describing tort liability for concerted action), and to the "seminal" decision in Halberstam. In addition, the Government cited to the "hit man guidebook" case, Rice v. Paladin Enterprises, Inc., 69 F.3d 233 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998), and to a few other cases that seemed less directly analogous. See, e.g., Damato v. Hermanson, 153 F.3d 464 (7th Cir. 1988); United States v. Peoni, 100 F.2d 401 (2d Cir. 1938). In any event, relying upon Halberstam and Learned Hand's decision in Peoni, the Government posited that "the intent standard in the civil tort aiding/abetting context is that the wrongful conduct be the natural consequence of the defendant's original act, while the criminal intent to aid and abet requires that the defendant have a 'purposive attitude'" toward the commission of the offense. In short, this standard translates to the proposition that "there is no requirement that the Boims demonstrate that the Quaranic Institute and Holy Land Foundation participated in David Boim's shooting, or even knew about it." Instead, the Boims must only prove that "these defendants helped Hamas . . . in some knowing and substantial way, and that it was a natural consequence that the funds these entities were providing would lead to terrorist acts, such as David Boim's murder." Thus, while it would not be enough to establish liability merely to show that funds were given to a group that later committed an act of terrorism, "the provision of funds could be enough if the provider was 'generally aware' of the principal's terrorist activity, and if the provision of funds "substantially assist[ed]" the terrorist act in question." USA Br. at 25. While the second half of this test sounds like a steep standard, it is not clear what it actually entails, in light of the fact that the Boims alleged only that the money given to Hamas by the defendants went into the general pool of funds from which money was used to purchase weapons, including, presumably, the weapons used to kill David Boims.

Thus, the Boims litigation should prove an excellent testing ground for the scope of the ATA. First, the Seventh Circuit must address the question of whether it incorporates generic tort principles, and thereby allows U.S. victims to search out and sue all U.S. supporters of terrorism. This is a desirable result, and the Government's brief provides a strong legal theory on which it can be based. Second, assuming the Seventh Circuit lets the litigation proceed, the district court will be faced with the important question of how to define the factual predicates that must be shown to pin liability under an "aiding and abetting" theory. In doing so, it should rely heavily upon Halberstam's quite aggressive account of the law - which apparently does not require that the defendant have had any specific knowledge of the underlying crime that harmed the plaintiff, nor that the plaintiff be able to "trace" the defendant's material support to the wrongdoer in a way that is specific to the tools used to implement that underlying crime. In addition, the district court should make clear that the legal theories it uses to apply the ATA are federal common law principles, drawn from cases like Halberstam, and that therefore they should govern in all ATA suits.

Finally, Boims may prove to be a fascinating case with regards to the enforcement of private judgments against terrorist groups: in its brief, the Government stated its wish "to allay any overarching concerns the Court might have that allowing suits such as this one to proceed will interfere with federal law enforcement efforts against terrorist or entities that support them." USA Br. at 29-30. The Government referred the Court to sections 2336 (allowing the Government to intervene and seek a stay of any private lawsuit under section 2333) and 2337 (prohibiting section 2333 lawsuits against both domestic and foreign government officials) as evidence that Congress had already "enacted protections for the Executive Branch" sufficient to preclude a private suit under section 2333 from interfering with law enforcement efforts. Then, apparently in reaction to a question that it had been asked at oral argument, the Government made sure to assert "the courts lack power to enforce judgments against assets frozen by the President." USA Br. at 30 (citing Dames & Moore v. Regan, 453 U.S. 654 (1981); Itek Corp. v. First National Bank of Boston, 704 F.2d 1, 9-10 (1st Cir. 1983)). Thus, while supportive of the Boims' quest for justice, the Government reserved its right to trump any effort to collect on a judgment by freezing the assets of the defendants.

This reservation by the Government in its Boims brief raises an interesting question: if the Boims' allegations are true, why has the Government not already frozen the defendants' assets and prosecuted their officers, pursuant to 18 U.S.C. §§ 2339A, 2339B, and Executive Order 13224? It may be that the Government has not yet devoted the law enforcement resources to thoroughly investigating these defendants, in which case the Boims litigation would be an excellent vehicle allowing the Government to learn more; or it may be that the Government has investigated them and found no evidence sufficient for freezing assets. Given what appears to be quite a low threshold of proof for freezing assets under Executive Order 13224, it does not seem likely that the Government is simply trying to take advantage of the lower standard of proof in a civil case, although that is at least a conceptual possibility. Finally, it may simply be the case (though it would seem unlikely) that the Government is respecting the rights of private victims to seek compensation and justice.

(b) PLO's Failure to Control Terror: Ungar v. Palestine Authority [8]

Yaron Ungar was a U.S. citizen living in Israel, married to an Israeli wife. One evening in 1996, the couple were driving home from a wedding with their nine month old infant son when they were ambushed by Hamas terrorists who opened fire on the Ungars with their Kalashnikov machine guns. Both Ungars were killed; their infant son survived unscathed. The terrorists responsible were subsequently convicted in Israeli court for the murders, and for membership in Hamas.

A little less than four years later, the heirs and estate representative of the Ungars brought suit in federal district court in New Jersey. They named as defendants both Hamas as an organization and the individual Hamas terrorists responsible; in addition, they named the Palestine Authority ("PA"), the PLO, Yasser Arafat, and a number of other PLO individuals (collectively, "the PA defendants"). The plaintiffs alleged that "the PA defendants failed to maintain public order and security in the territories under their control, and instead 'provided defendant Hamas and its members with safe haven, a base of operations, shelter, financial support and other material support and resources.' " 153 F. Supp. 2d at 84.

The Hamas defendants defaulted, and the PA defendants moved to dismiss. The court found that it had personal jurisdiction over the PA and over the PLO, but agreed that it did not have jurisdiction over the individual PA defendants. The court essentially collapsed its analysis of personal jurisdiction over the PA and the PLO: it relied upon the fact that (1) the PLO has an office in Washington headed by the chief representative of the PLO and the PA; (2) the PLO has an Observer Mission to the U.N., and that this office engages in activities outside of the U.N. that, according to the Klinghoffer decision (see above) could be taken into account in a personal jurisdiction analysis; (3) that defendant PA employed a lobbying firm (Bannerman & Associates) to assist the PA with advocacy, training, and developing a public relations campaign in the United States; and (4) significant commercial contacts that the PA and PLO were alleged to have with the United States, including a telecommunications contract which was recently the subject of litigation, International Technologies Integration, Inc. v. Palestine Liberation Organization, 66 F. Supp. 2d 3 (D.D.C. 1999)). Ungar, 153 F. Supp. 2d at 87-88. Thus, although the PLO's representative in Washington, Mr. Rahman, submitted a declaration claiming that the PA has no representatives in Washington, the court found facts to the contrary - including the fact that Mr. Rahman's own resume apparently described him as the Chief Representative of the Palestine National Authority and the fact that he had delivered speeches on behalf of both the PLO and the PA - and therefore concluded that it has jurisdiction over both entities.

Aside from recognizing personal jurisdiction over the PLO and the PA, the Ungar decision is notable for a number of other rulings. First, it rejected a novel claim by the plaintiffs that the court had jurisdiction over the individual PA defendants based on a theory that, in essence, killing an American citizen always establishes minimum contacts with this country. The plaintiffs cited to cases decided under the exception in the FSIA (28 U.S.C. § 1605(a)(7)), and in particular to Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C.1998), in which the court held that "the concept of 'minimum contacts' is inherently subsumed within the exceptions to immunity defined by the [FSIA]." Id. at 20. In other words, according to Flatow, the minimum constitutional requirements for personal jurisdiction are by definition satisfied whenever an exception to the FSIA is satisfied. This certainly appears to comport with Congress's intention - 28 U.S.C. § 1330(b) provides that personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction . . . where service has been made under section 1608." This statute can comport with the Constitution's due process requirements only if the Flatow court is correct about the necessary relationship between "minimum contacts" and the FSIA exceptions, a necessary relationship Flatow explicitly described as applying under the terrorism exception of section 1605(a)(7): "a foreign state that sponsors terrorist activities which causes the death or personal injury of a United States national will invariably have sufficient contacts with the United States to satisfy Due Process." Flatow, 153 F. Supp. 2d at 94. If carried to its logical conclusion, this reasoning could have supported the plaintiffs' argument that U.S. district courts have personal jurisdiction over Yasser Arafat and other leaders of the PA and PLO to the extent alleged that they sponsored terrorist acts that killed Americans. But the Ungar court expressed some doubt as to the correctness of this view, and pointed out that the Second Circuit apparently does not agree with the Flatow court: in Rein v. Socialist People's Libyan Arab Jamahiriya, 162 F.3d 748, 761 (2d Cir. 1998), the Second Circuit wrote that "the elements of § 1605(a)(7), unlike those of the commercial activities exception . . . do not entail any finding of minimum contacts." Rein, 162 F.3d at 94. In any event, without passing on the correctness of Flatow, the Ungar court rejected the plaintiffs' arguments based on a series of distinctions - there was no statute analogous to section 1330(b) that applied to plaintiffs' claims; unlike state defendants, the PA individual defendants had no "sovereign contacts" with the U.S. that could (despite being normally irrelevant to a traditional due process analysis) help justify personal jurisdiction; and there is no question that the individual PA defendants are "persons" under the Due Process Clause, whereas Flatow held that states are not.

A second interesting ruling in Ungar is its conclusion that no section 2333 claim could be brought on behalf of Mrs. Ungar because she was not (or was not alleged to be) a U.S. national. This ruling is presented as a straightforward application of section 2333 - which applies to "[a]ny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism." Mrs. Ungar was not a U.S. national, so neither she nor her estate could be a plaintiff under section 2333. Ungar, 153 F. Supp. 2d at 97. This raises two issues. Could Mrs. Ungar's estate have filed suit under the TVPA or the ATCA (see below), or would the defendants have been able to argue that Hamas' terrorism was not "under color of foreign law," and that terrorism is not otherwise an actionable violation of the law of nations? Compare Tel-Oren with Karadzic. Also, could Mrs. Ungar's U.S. heirs and family members have brought suit under section 2333 for their own suffering, loss of consortium, or other injuries, but not for her pain and suffering and wrongful death? See USA Br. in Boims (arguing that section 2333 incorporates all basic tort principles). The court did not entertain either question, but based on the analysis and cases discussed in this paper, it would appear that both avenues of litigation should be open to Mrs. Ungar's heirs and family members.

Similar to the Boims court, but with an abbreviated analysis, the Ungar court also rejected the argument by the PA defendants that "the activity attributed to the PA defendants in plaintiffs' complaint, the alleged facilitation, condonation, and failure to prevent terrorist activities in general, does not amount to acts of 'international terrorism' as defined by 18 U.S.C. § 2331, and is therefore not actionable under 18 U.S.C. § 2333." 153 F. Supp. 2d at 97. The court concluded that because plaintiffs had alleged activities that involve violent acts and which, if committed within the jurisdiction of the United States would constitute crimes, their allegations satisfied the definition of terrorism under section 2331, when viewed in the light most favorable to the plaintiffs. Id. at 98.

In addition to the ATA analysis set forth above, the Ungar court also analyzed the plaintiffs pendent state law claims. Applying Rhode Island's "interest-weighing" principle for tort choice of law issues, the court held that Israeli law should govern all state law claims, that it was the obligation of the plaintiffs to plead and prove Israeli law, and that the plaintiffs had failed to meet this obligation in their pleadings. Id. at 99-99. Thus, Ungar echoes Klinghoffer in its contemplation that foreign law could be applied to in U.S. federal court to determine pendent claims alleged under state law. The Ungar court gave the plaintiffs 30 days to file an amended complaint, and the plaintiffs filed an amended complaint on August 23, 2001. Finally, in keeping with the evolving jurisprudence that recognizes U.S. courts as the appropriate venue for these types of cases, the Ungar court ruled that the absence of an adequate alternative forum required rejection of defendants argument of forum non conveniens. See generally Wiwa, 226 F.3d 88.

3. The AEDPA and the Flatow Amendment

In responding to September 11, President Bush has made it clear that he plans to hold states that harbor terrorists responsible for the acts of those terrorists. The reason for this is that for international terrorist groups to pose a serious threat to peace and stability worldwide, they must have safe havens and complicit governments around the world who support them. Perhaps for this reason, the AEDPA, and its cousin the Flatow Amendment, which allow victims to sue a designated list of state sponsors of terrorism, are the most frequently invoked litigation weapon against defendants accused of engaging in terrorist activity or political crimes against humanity. Thus far, the principal target in these cases has been Iran, but Cuba and Libya have also been successfully sued in high-profile cases, as has Iraq. Sudan, Syria, and North Korea have apparently not yet been sued under the AEDPA (or at least there are no reported decisions in any cases that have been brought).

Obviously, suits under the AEDPA are entirely dependent upon the U.S. Government's having listed the foreign state as a state sponsor of terrorism. Thus, AEDPA reserves the political prerogatives of the Government to exercise control over whether the power of the private lawsuit is to unleashed against a particular country. This residual control may serve our diplomatic interests, but it obviously runs counter to any notion that there is a rule of law at play. A purely legal regime would not make distinctions based on the Government's discretionary - and obviously political - judgments, but would instead simply lay down the principles of liability, and the principles of immunity, and allow the courts to hear and decide cases on their individual merits. If such a system were ever adopted, one could certainly expect some frivolous suits - though surely they would diminish once courts made the law clear and began imposing sanctions - as well as suits against countries that are currently of enormous importance to our geopolitical strategy. Nevertheless, if a U.S. citizen is killed or tortured by a foreign government, it is difficult to see why that individual's right to compensation should depend upon whether the U.S. State Department has put that foreign government on a list.

(a) Vicarious state responsibility: Flatow v. Islamic Republic of Iran [9]

Five months after the AEDPA's amendment to the FSIA was passed, thereby removing immunity for foreign state sponsors of terrorism, Congress passed an amendment to the amendment. The revision, which is set forth as a statutory note to section 1605, provides that "an official, employee, or agent of a foreign state designated as a state sponsor of terrorism" shall be liable for "money damages which may include economic damages, solatium, pain, and suffering, and punitive damages," if the claim is based on actions described under section 1605(a)(7). This revision is commonly known as the "Flatow Amendment," named for the American family whose daughter was killed by a suicide bomber in Israel in April of 1995. Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 12 (D.D.C. 1998). The general rule is that punitive damages are not available against foreign states, even when they have no immunity under the FSIA, because 28 U.S.C. § 1606 clearly provides that "a foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages."

In 1997, the Flatow family brought suit against the Republic of Iran, alleging that it had provided material support to the Shaqaqi faction of Palestine Islamic Jihad, the group that claimed responsibility for the attack that killed Alisa Flatow, and whom the State Department confirmed was responsible. The State Department informed the Flatows that the Republic of Iran provided approximately $2 million in annual support to this murderous faction, whose "sole purpose is to conduct terrorist activities in the Gaza region, and [whose] sole source of funding is the Islamic Republic of Iran." Id. at 7-9. In response to the suit, the Republic of Iran defaulted, failing even to respond via diplomatic note. Id. at n.1.

Judge Lamberth of the U.S. District Court for the District of Columbia held that the Islamic Republic of Iran, the Iranian Ministry of Information and Security, Ayatollah Khameni (President of Iran), Ali Akbar Hashemi-Rafsanjani (former President of Iran), and Ali Fallahian-Khuestani (former head of Ministry of Information) were jointly and severally liable for $225 million in punitive damages, calculated as an "amount of three times the Islamic Republic of Iran's annual expenditure for terrorist activities." Id. at 34. In addition, Judge Lamberth awarded the Estate of Alisa Flatow compensatory damages of over $1.5 million for funeral expenses and lost future earnings and $1 million for pain and suffering, and awarded $20 million to five different family members for "solatium." Thus, the total award exceeded $247 million. Id.

The judgment in Flatow is set forth with considerable care, with 29 findings of fact followed by dozens of pages discussing Lamberth's conclusions of law. Most of the legal analysis appears to be uncontroversial - the court had subject matter jurisdiction under section 1605(a)(7), section 1605(a)(7) clearly applies both extraterritorially and retroactively, the routine provision of financial support to a terrorist group in support of its terrorist activities is clearly covered by section 1605(a)(7). The court's rejection of the act of state doctrine and the doctrine of forum non conveniens also appear to be relatively straightforward. Id. at 24-25. Slightly more controversial perhaps is the court's personal jurisdiction analysis that, as discussed above, did contain some nuanced concepts that other courts may not accept. Id. at 18-25. The court also dealt in a very summary fashion with the head of state immunity defense, holding that section 1605(a)(7) abrogated any common law immunity by exempting from immunity "an official, employee, or agent of a foreign state . . . acting within the scope of his or her office, employment, or agency." Id. at 24-25. The court found that "this provision does not qualify or in any way limit its application only to non-heads of state," and that allowing heads of state to escape liability would leave section 1605(a)(7) "irreparably and unreasonably hobbled." Id. This seems to be a fair and sound reading.

Thus, if any legal aspect of the court's judgment could be called controversial, it would probably have to be that which dealt directly with the Flatow amendment itself. Since section 1606 directly states that even when foreign states are not immune, they cannot be subjected to punitive damages, and since this rule reflects longstanding notions of comity and a widely held international norm, it is a critical question whether the Flatow amendment actually lifted this last line of defense for rogues states seeking to avoid the sword of justice in American courts. But as even Judge Lamberth indicates, the Flatow amendment is not exactly straightforward, and "requires several references to 28 U.S.C. § 1605(a)(7) et seq. to reach even a preliminary interpretation." Id. at 12. But while the language of the Flatow amendment is not entirely clear - it refers only to an "official, employee, or agent of a foreign state," and not to the foreign state itself - Judge Lamebreth looked both at the context and legislative history behind the amendment, and at traditional tort principles of vicarious liability and respondeat superior, in holding that punitive damages could be imposed against Iran. [Subsequent to this decision, however, Congress enacted new legislation making it clear that foreign states could not be subject to punitive damages.] See, 28 U.S.C. § 1606.

One final point about the actual Flatow opinion serves as an important reminder to the anti-terrorism litigatant thinking of scoring a quick hit against a foreign state not interested in defending itself in court. While the defendants had defaulted, section 1608(e) required the plaintiff to "establish his claim or right to relief by evidence that is satisfactory to the Court." 28 U.S.C. § 1608(e). This contrasts with the typical default in a civil case, where the plaintiff can have the Court accept all well-plead allegations in his complaint as true. FRCP 55. For this reason, the Flatow court appears to have heard considerable testimony from experts and from Flatow family members to support its judgment, and also set forth its factual findings in some detail. On the critical issue of Iran's financial support for the terrorist group that was culpable for Alisa Flatow's murder, the Court apparently relied upon the testimony of Dr. Reuven Paz, Dr. Patrick Clawson, and former FBI Deputy Assistant Director for Counterterrorism Harry Brandon. Id. at 8-10.

In sum, the remarkable Flatow case stands as a testament to the power of the new litigation tools Congress has created to achieve enormous verdicts, codify a judgment that strikes a blow for justice, and, presumably, to serve as an additional financial deterrent to Iran and all other states contemplating future sponsorship of terrorism.

(b) Brothers to the Rescue: Alejandre v. Telefonica Larga Distancia de P.R., Inc. [10]

In Alejandre v. Telefonica Larga Distancia de P.R., Inc., 996 F. Supp. 1239 (S.D. Fla. 1997), Judge King awarded $187.6 million in damages to the families and estates of three of the four individuals who were shot down in cold blood by the Cuban Air Force while flying in unarmed Cessna planes in international air space, in search of Cuban refugees. The posture and legal analysis of this case is extremely similar to that in Flatow - the defendants defaulted and the Court walked through the factual and legal basis for liability. The estate of the fourth victim was not eligible to sue under AEDPA because he was not a U.S. citizen. While a TVPA suit would have been available to this victim's estate, the defendants would likely have been immune against such a suit.

The one important distinction between Alejandre and Flatow, however, is that Judge King concluded that "punitive damages may not be assessed against the Republic of Cuba," and therefore confined the punitive damages portion of his judgment ($137.7 million) to the Cuban Air Force. Since he also considered the total assets of the Cuban Air Force in determining the amount of punitive damages to impose, id. at 1252-53, it is quite probable that Judge King may have imposed a higher punitive damages judgment against the Republic of Cuba, had he concluded, as Judge Lamberth did, that a "foreign state" could be liable for punitive damages under the Flatow Amendment.

As litigation under the AEDPA has proliferated in the last couple of years, it now appears that Judge King's view of punitive damages is the prevailing view. See generally Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, n.17 (D.D.C. 2000). This result appears to have been based, at least in part, upon Congress's 2000 repeal of legislation that would have permitted punitive damages against a foreign state in cases brought under AEDPA. Id. For that reason, Judge Lamberth himself has now ruled that punitive damages cannot be awarded against a foreign state, thus departing from the pre-2000 view he expressed in Flatow. See Weinstein v. Islamic Republic of Iran, 2002 U.S. Dist. LEXIS 1798, n.1 (D.D.C. 2002).

(c) Enforcing a Judgment Under AEDPA

Perhaps the most important fact about Flatow and Alejandre is not the decisions themselves, but the efforts of the plaintiffs to enforce their judgments. Faced with the Supreme Court's decision in Dames & Moore, they appeared to have no chance of attaching any of the millions of dollars in Iranian assets still controlled by the U.S. Government, and to have even less chance of finding attachable Iranian assets elsewhere. Indeed, while the Executive Branch obviously had the discretion to make some of the billions of dollars in foreign assets that it controls available to the plaintiffs, the Justice Department steadfastly refused, just as it has done in all similar cases. However, by joining forces, the Flatow and Alejandre plaintiffs managed to convince Congress to pass legislation ordering President Clinton to release funds to satisfy those judgments. See Victims of Trafficking and Violence Prevention Act. See 28 U.S.C. § 1610. In the end, based upon news reports, this legislation allowed the Flatows to recover $22 million of their $247 million award, and the Cuban plaintiffs to recover $97 million of their $187 million judgment.

4. The ATCA and the TVPA: Terrorism Violates International Law

Once dubbed a "legal Lohengrin" because "no one knows from whence it came," see ITT v. Vencap, 519 F.2d 1001, 1015 (2d Cir. 1975) (Friendly, J.), the ATCA, along with some help from its less jurisprudentially controversial cousin the TVPA, has successfully made U.S. federal courts the best domestic forum in the world for litigating claims based on violations of internationally recognized human rights. Although the TVPA is available to both aliens and U.S. citizens, it has rarely been invoked by American plaintiffs. This should change, however, because it provides an opportunity to sue foreign government officials who, through ultra vires acts, subject victims to murder and torture, and therefore should serve as an added litigation weapon in many anti-terrorist cases.

On the other hand, the ATCA is available only to aliens. Paradoxically, however, it in some way provides the most powerful litigation tool of all, as shown by the two cases discussed below.

(a) Private Actors and the ATCA: The Karadzic Case

The TVPA explicitly requires the alleged crimes to have been committed under "color of foreign law." This requirement followed from prior ATCA jurisprudence. See generally Tel Oren, 726 F.2d at 777-82 (Edwards, J., concurring). Generally, this requirement means that purely private crimes that occur overseas are not actionable in U.S. courts. See generally id. (discussing state action requirement under ATCA); Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362 (E.D.La. 1997).

This requirement does not, however, necessarily foreclose suits against all non-government officials. The most involved discussion of this requirement, and of the instances in which it may not stand in the way of plaintiffs who have been grievously harmed by a terrorist organization, comes in Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). There, the Second Circuit held that Radovan Karadzic, whom they refused to recognize as the leader of a sovereign state and who therefore could not have been acting under color of foreign law, was nonetheless liable under the ATCA and TVPA for orchestrating the mass rape, beatings, torture, and murder of Bosnian Muslims during the Bosnian war in the early 1990s. The court held that the internationally recognized crime of genocide, because of the universal condemnation of the crime and because of its extreme gravity, constituted a violation of international law that was actionable under the ATCA even if not committed under color of foreign law. The court opined that a similar result might obtain for the crimes of slavery or terrorism. 70 F.3d at 240.

Thus, it is quite probably that a terrorist organization may be sued by an alien under the ATCA for acts of terror, notwithstanding the fact that those terrorist acts might not have been committed under color of foreign law. Curiously, however, the Second Circuit's reasoning is limited to an interpretation of the ATCA, which means that it does not technically apply to analogous suits brought by Americans under the TVPA. Of course, while it might not technically be possible for a U.S. citizen to invoke Karadzic to bring a suit against a private terrorist organization, the ATA may be invoked in such an action. However, while a foreign victim of the bin Laden's and Karadzic's of the world is also able to sue those defendants for "slavery" and "genocide," it is apparently not so easy for an American to advance those claims, unless he can persuade the court that (a) these acts are also acts of international terrorism, or (b) it is perverse to base the Karadzic ruling entirely on the ATCA, and therefore its holding should be considered an interpretive gloss on the plain language of the TVPA (a difficult argument for anyone who believes in following a statute's plain text).

(b) Breadth of the ATCA: Alvarez-Machain and the Jus Cogens Question

More generally, under today's prevailing jurisprudence, the ATCA apparently provides alien plaintiffs with a far greater weapon than is given to American plaintiffs in the TVPA. Although some courts have tried to limit the scope of what violations of "the law of nations" really encompasses for purposes of the ATCA, not all courts have agreed. Most notably, while the Ninth Circuit has stated that only violations of "specific, universal, and obligatory" norms of international law should be actionable under the ATCA, see Hilao v. Estate of Marcos, 25 F.3d 1467, 1475 (9th Cir. 1994), it recently pulled back from any reading of that language that might limit the statute to only the most egregious and uncontroverted international crimes (what are sometimes called violations of jus cogens norms). See Alvarez Machain v. United States, 266 F.3d 1045 (9th Cir. 2002). Indeed, according to the Machain court, conduct may be actionable as in violation of a "specific, universal and obligatory" rule of international law even if it appears that the United States government does not accept that rule of law. Specifically, Machain held that an indicted Mexican drug criminal could sue both the United States and its Mexican agent for committing an extraterritorial arrest that he claimed was in violation of international law because Mexico had not consented to it. This holding would mean that if Pakistan refused to prosecute Daniel Pearl's murderers, and the FBI decided to arrest those murderers and bring them to justice here in the United States, Mr. Pearl's assailants would have a valid claim for damages - even if they were accorded all of the safeguards and rights provided to U.S. citizens under our Constitution.

Thus, while most ATCA claims are based upon egregious human rights violations involving torture or murder (i.e., actions that are also available to U.S. plaintiffs), alien plaintiffs have tried to bring suits based upon environmental crimes and other business-related torts. See generally Doe v. Unocal, 248 F.3d 915 (9th Cir. 2001). Whatever one thinks about the use of U.S. courts to litigate these international human rights claims, it would seem to be the ultimate absurdity to interpret the ATCA in a way that provides aliens with greater rights than those afforded U.S. citizens, yet that is precisely the result of the Alvarez Machain holding.

III. Concluding and Cautionary Comments:

In sum, the legal landscape is evolving in a way that strongly favors private lawsuits brought to vindicate the rights of the victims of international terrorism and political violence. There are a variety of overlapping causes of action that provide for an expansive view of the subject matter jurisdiction of U.S. courts, and that make it quite clear that Congress expects U.S. courts to take an aggressive stance towards terrorists, criminal regimes, genocidal warriors, and the entities and individuals who provide their financial support.

This would appear to be a salutary development. While brutality against aliens in far-off lands may seem to have nothing to do with United States interests, if a U.S. court has personal jurisdiction over a defendant who can be proved guilty of such conduct, then it is appropriate for that court to impose a civil damages penalty - a "judicial sanction" - to punish that lawless conduct. And when the victims are American, then obviously the cause for doing so is all the greater. If this is a country that is ruled by law, one would think that the law ought to allow the victim of gross brutality to recover damages from those who are responsible, and ought not to allow murderers and terrorists to blithely horde their assets in our banks and real estate. Indeed, a strong case can be made that the law does not go far enough. In particular, why should a U.S. victim of state-sponsored terrorism only be able to recover damages if the state that sponsored the terrorism has been "designated" by the State Department? Is it not enough that the victim is able to prove in court that the state actually sponsored the terrorist act in question?

Countervailing the appeal to a pure system of law that applies to all countries equally, of course, is the concern that sensitive foreign policy judgments remain in the exclusive domain of the Executive Branch. Thus, the AEDPA gives the State Department the power to decide which states may be sued. Likewise, our courts have traditionally recognized that certain conduct by foreign states ought not to be judicially cognizable because they are "acts of state." See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). For the same reason, our legal system has recognized that not only foreign states, but also certain foreign officials, should be immune from suit for their official conduct. See generally Chiminya v. Mugabe, 169 F. Supp. 2d 259 (S.D.N.Y. 2001). However, as the discussion in Mugabe suggests, it is far from a straightforward question whether the decision over the immunity of a foreign official - including even a head of state - should be resolved by the Executive Branch or by the Judicial Branch. Indeed, there is substantial authority indicating that the Judicial Branch ought to make the decision as a matter of law, and that the State Department ought to have no role other than to inform the court whether they recognize that the defendant is an official from a recognized government.

In any event, the act of state doctrine and the law of immunity help confine the causes of action discussed in this article from unduly interfering with Executive Branch prerogatives, even as they evolve to recognize the competing claims of victims with valid interests under established law. A harder question may be presented by the application of legal definitions to geopolitical realities. If another man's terrorist is our freedom fighter - and some might claim that Nicaraguan contras, Northern Alliance warriors, Bosnian militants, and ANC guerillas have all at one time or another satisfied both definitions - then should our courts treat them just as it would Hamas, the PLO, or Al-Queda? As a matter of law, of course, the answer is yes. The legal definition of terrorism, like the colloquial understanding, appears to principally contemplate violence against unarmed civilians. As a matter of law, if Americans are harmed by this kind of terrorist conduct, they ought to have the right to seek compensation, no matter whose political ox the terrorists were seeking to gore. An American tortured and murdered by Pinochet ought to have the same rights as an American tortured and murdered by Shining Path. And if the ATCA and TVPA extend our jurisdiction even to foreign plaintiffs, then the same reasoning presumably applies.

Thus, the nub of the question may rest with the definitions that underlie the various causes of action. If "freedom fighters" are truly fighting a war of liberation, they may nonetheless have to do so through brutal means that satisfy the definition set forth in 18 U.S.C. § 2333(a). If they are not to be liable to Americans who are harmed by their action, then this definition must be changed. On the other hand, if they are truly fighting for their liberation, then presumably a strong case can be made they are not violating "the law of nations," and hence should not be liable to foreign victims under the ATCA or the TVPA. In that limited way, the law certainly does (or should) recognize the nature of the political cause being furthered by the defendants, just as widely shared concepts of international law recognize rights to democracy and self-determination.

Finally, it is worth noting that the most controversial expansion of liability that may develop in this area probably has to do with the "accomplice" cases. While the Boims and Ungar cases provide promising developments for victims of terrorism, courts ought to be careful not to lower the bar on the Halberstam theory of accomplice liability too far, as doing so would risk making every multinational company that does business in a country with a less than perfect human rights record a defendant in an ATCA case. This would be sure to discourage investment around the world, thereby slowing economic development and the surest path to democratic developments toward greater accountability and recognition of individual rights.


    1. Corporations have and will be sued for conduct abroad. Where a corporation becomes involved with repressive thugs and is complicit in propping up a repressive regime for its own gain, perhaps liability should follow. But many American corporations abroad bring employment, education and economic hope to otherwise bereft parts of the world, and should not be punished for doing so.
    2. For a discussion of other types of statutes compensating victims of terrorism see Deborah M. Mostaghel, WRONG PLACE, WRONG TIME UNFAIR TREATMENT? AID TO VICTIMS OF TERRORIST ATTACKS, 40 Brandeis L. J. 83 (Fall 2001).
    3. As discussed below, the AEDPA does not itself provide a cause of action, but simply removes the immunity of foreign states for the conduct specified in 28 U.S.C. § 1605(a)(7). However, five months after the AEDPA was enacted, Congress added an amendment that explicitly provided for a cause of action for all conduct set forth in section 1605(a)(7).
    4. "[T]he term "terrorist organization" means an organization designated as a terrorist organization under section 219 of the Immigration and Nationality Act [8 USCS § 1189]." 18 U.S.C. § 2339B(g)(6).
    5. Section 2 of the Torture Victim Protection Act of 1991. Act March 12, 1992, P.L. 102-256, 106 Stat. 73, provides in part:
      "(a) Liability. An individual who, under actual or apparent authority, or color of law, of any foreign nation--
      "(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or
      "(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.
      "(b) Exhaustion of remedies. A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.
      "(c) Statute of limitations. No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose.
      "Sec. 3. Definitions
      "(a) Extrajudicial killing. For the purposes of this Act, the term 'extrajudicial killing' means a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.
      "(b) Torture. For the purposes of this Act--
      "(1) the term 'torture' means any act, directed against an individual in the offender's custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and
      "(2) mental pain or suffering refers to prolonged mental harm caused by or resulting from--
      "(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
      "(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
      "(C) the threat of imminent death; or
      "(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.".
    6. See http://usinfo.state.gov/journals/itps/1101/ijpe/pj63fto.htm (last visited 2/4/02).
    7. Boims v. Quaranic Literacy Institute, 127 F. Supp. 2d 1002 (N.D.Ill. 2001). For an extended discussion of the history of the U.S. government's law enforcement efforts against the chief defendant in the Boims case, the "Holy Land Foundation," see HOLY LAND FOUNDATION ALLEGEDLY MIXED CHARITY MONEY WITH FUNDS FOR BOMBERS, Wall Street Journal, February 27, 2002.
    8. Ungar v. Palestine Authority, 153 F. Supp. 2d at 91.
    9. Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998).
    10. Alejandre v. Telefonica Larga Distancia de P.R., Inc., 996 F. Supp. 1239 (S.D. Fla. 1997).