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LIABILITY UNDER THE ANTI-TERRORISM EXCEPTION TO THE FOREIGN SOVEREIGN IMMUNITIES ACT: AN EXPANDING DEFINITION OF
"MATERIAL SUPPORT OR RESOURCES"
DANIEL BRYER*
I. Introduction
"We will make no distinction between the terrorists who committed these acts and those who harbor them."[1] This was the battle cry of President George W. Bush after the horrific terrorist attacks of September 11, 2001, which left over 5,000 Americans dead and the epicenter of world trade in ruins. While President Bush has since brought the full military might of the United States Armed Forces to bear on those who harbor terrorists, he has neglected to provide U.S. courts with the legal firepower to effectuate his September 11th pledge.
Currently, the exclusive method for establishing subject matter jurisdiction over a foreign State is through the Foreign Sovereign Immunities Act ("FSIA" or "Act").[2] The Act includes a recent amendment which permits U.S. courts to maintain jurisdiction over a foreign State where that State engages in an act of terrorism or provides "material support or resources" to a terrorist organization.[3] While the definition of "material support or resources" encompasses a wide variety of acts, it noticeably omits the most basic need of any terrorist organization - safe haven. Without a safe haven, terrorist organizations such as Al-Qaeda would be completely bereft of any structure or security, and incapable of plotting massive and devastating attacks such as September 11th or the 2004 bombings in Madrid. As such, countries that provide terrorist organizations with a staging ground for breeding terrorist plots are just as guilty as those who provide "material resources" within the current definition. Therefore, the scope of "material support or resources" must, and appears to be, moving toward an expansion to include "harboring" in its already extensive categorical reach.
This article will examine the current definitional status of "material support or resources" and address whether providing safe haven or sanctuary to terrorist organizations is, and should be, sufficient to confer subject matter jurisdiction under the FSIA. Part II of this article briefly outlines the history and evolution of foreign sovereign immunity in the United States. Part III analyzes recent U.S. federal court decisions, which assert that harboring terrorist organizations is included in the purview of "material support or resources." Finally, Part IV discusses the constitutional and precedential implications of these decisions, and considers the potential influence of an express amendment to include "harboring" as an action sufficient to confer subject matter jurisdiction under the FSIA.
II. History of Foreign Sovereign Immunity in the United States
The law of foreign sovereign immunity in the United States has undergone a birth, rebirth, and codification over the course of its almost two-hundred year existence. From its early common law beginnings under the absolute and then restrictive theories of immunity to its current statutory form, the legal and theoretical principles underlying foreign sovereign immunity have adapted to the ever-changing jurisprudential undertones of the United States.
A. Doctrine of Absolute Immunity: "The King Can Do No Wrong"
The underlying rationale behind the doctrine of absolute immunity stems from the surviving feudal principle that the King, who embodied the State, could do no wrong.[4] Absolute foreign sovereign immunity stands for the ideal that "foreign sovereigns are entitled to immunity from suit in the United States with respect to . . . their public governmental acts as well as their private commercial acts."[5] In the landmark 1812 decision Schooner Exchange v. McFaddon,[6] the United States Supreme Court took the first step in adopting the doctrine of absolute foreign sovereign immunity. In Schooner Exchange, the Supreme Court held that the United States did not have jurisdiction over an armed French vessel that was discovered in American territorial waters.[7] In its opinion, authored by Chief Justice John Marshall, the Court declared that sovereign immunity was grounded in the "perfect equality and absolute independence of sovereigns."[8] The Court went on to indicate that a "public armed ship . . . constitutes a part of the military force of her nation, acts under the immediate and direct command of the sovereign, and is employed by him in national objectives."[9] Thus, the Court concluded that an armed French naval vessel constituted an extension of the sovereign and "law requires the consent of the sovereign, either express or implied, before he can be subject to a foreign jurisdiction."[10] As a result, foreign nations enjoyed absolute immunity from lawsuits in America as to their public governmental acts for the next 144 years.
In 1927, the Supreme Court took the final step in adopting the theory of absolute sovereign immunity when it held in Berizzi Bros. Co., v. The Pesaro[11] that foreign sovereigns were entitled to immunity with respect to their private commercial conduct.[12] This final concept of absolute foreign sovereign immunity, consisting of public governmental acts as well as private commercial acts, was the guiding jurisprudential principle in the United States until 1952. During this time period, courts granted immunity based upon recommendations by the State Department,[13] which were often shaped by political and diplomatic concerns.[14] As a result of this case-by-case approach, the application and results of the absolute immunity theory lacked uniformity and certainty.[15]
B. Doctrine of Restrictive Immunity
With the expansion of international commerce and government-owned corporations, many countries began to reevaluate their commitments to the absolute theory of foreign sovereign immunity.[16] Government leaders began to recognize that the effect of advances in communication and transportation on international business made absolute immunity an unrealistic policy. Accordingly, during the 1940's and 50's, countries throughout the world began to adopt the doctrine of restrictive foreign sovereign immunity.[17] The restrictive theory entitled foreign sovereigns to immunity with respect to their sovereign or public acts, but did not extend immunity to those acts considered private or commercial.[18]
Following the international trend, the U.S. State Department announced the "Tate Letter" in 1952, in which it officially adopted the restrictive theory of foreign sovereign immunity.[19] The Letter outlined the new U.S. approach to sovereign immunity and explained in part:
[It is] evident that with the possible exception of the United Kingdom little support has been found except on the part of the Soviet Union and its satellites for continued full acceptance of the absolute theory of sovereign immunity. . . . The reasons which obviously motivate state trading countries in adhering to the theory with perhaps increasing rigidity are most persuasive that the United States should change its policy. Furthermore, the granting of sovereign immunity to foreign governments in the courts of the United States is most inconsistent with the action of the Government of the United States in subjecting itself to suit in these same courts in both contract and tort and with its long established policy of not claiming immunity in foreign jurisdictions for its merchant vessels. Finally, the Department feels that the widespread and increasing practice on the part of governments of engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts. For these reasons it will hereafter be the Department's policy to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign governments for a grant of sovereign immunity.[20]
The Tate Letter marked a fundamental shift in U.S. international policy, but did little to eliminate the multitude of problems associated with determining foreign sovereign immunity. Difficulties arose in practice due to the Letter's failure to effectively enumerate a clear standard for State Department application of the new restrictive theory.[21] Further, while courts adopted the restrictive theory as to immunity from suit, they generally still followed the absolute theory of sovereign immunity in the execution of the judgment.[22]
Spurred on by the unclear and often inconsistent method of determining sovereign immunity by State Department recommendation, Congress decided to remove foreign sovereign immunity determinations from the executive branch entirely.[23] This goal was accomplished through the inception of the Foreign Sovereign Immunities Act of 1976,[24] which codified the restrictive theory of foreign sovereign immunity[25] and placed immunity decisions exclusively in the hands of the judiciary.[26]
C. The Foreign Sovereign Immunities Act
The Foreign Sovereign Immunities Act sets forth the "sole and exclusive standard to be used" in determining subject matter jurisdiction over a foreign State and its instrumentalities in United States courts.[27] The Act confers upon state and federal courts the exclusive right to determine "claims of foreign states to immunity."[28] The FSIA thus integrates concepts of personal jurisdiction and subject matter jurisdiction over foreign States with that of sovereign immunity.[29] The general rule under the FSIA is that foreign States[30] are immune from suit in United States courts.[31] However, this rule is subject to several enumerated exceptions designed to restrict the Act's initial grant of blanket immunity.[32] Of these exceptions, the most prevalent and heavily litigated include waiver,[33] commercial activity,[34] noncommercial tort,[35] and anti-terrorism. If a foreign State satisfies one of these, or the several other exceptions to immunity, it may be liable "in the same manner and to the same extent as a private individual under like circumstances."[36]
The FSIA as enacted in 1976 was limited by its inability to hold foreign States accountable for tortious acts occurring outside the United States. While the Act provided exceptions to immunity for non-commercial torts occurring inside the United States and commercial activity having a direct effect on the United States, sovereigns were virtually immune from civil liability for terrorist acts against U.S. nationals on foreign soil.[37] Responding to this deficiency and the ever-growing prevalence of terrorism around the world, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") in 1996, which provided a seventh exception to the FSIA for State sponsored terrorism.[38]
D. The Anti-Terrorism Exception to the Foreign Sovereign Immunities Act
On April 24, 1996, President Clinton signed the AEDPA into law, thereby amending the FSIA to permit U.S. courts to maintain subject matter jurisdiction over a foreign sovereign for sponsoring or engaging in acts of terrorism against U.S. nationals. The anti-terrorism exception to the FSIA provides:
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case -
. . .
(7) not otherwise covered by paragraph (2), in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency . . .[39]
The inception of the anti-terrorism exception marked a shift in U.S. foreign policy, which had previously sought to limit the territorial scope of the FSIA exceptions.[40] The new exception expressly grants U.S. courts the power to hear and decided cases involving terrorist acts occurring throughout the world. While this jurisdictional authority is certainly a step in the right direction, the anti-terrorism exception contains certain inherent limitations that prevent the FSIA from maximizing its influential prowess. First, the Act permits an aggrieved party to bring suit against a foreign country only if that country is on the State Department's terrorism list.[41] Currently, Cuba, Iran, North Korea, Sudan, and Syria are the only countries the State Department has denoted as terrorist nations who have "repeatedly provided support for acts of international terrorism."[42] Second, the anti-terrorism provision provides that if the act occurred in the foreign State against which the claim has been brought, the claimant must afford the foreign State "a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration."[43] Finally, the Act limits the reasons money damages may be sought to "personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18)."[44] 18 U.S.C. 2339A defines "material support or resources" as:
[A]ny property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.[45]
The fundamental flaw in the anti-terrorism exception's influential and jurisdictional power stems from 18 U.S.C. 2339A's definition of "material support or resources." The provision enumerates several specific acts that constitute providing material support or resources, but fails to expressly hold sovereign States accountable for the most basic and fundamental need of any terrorist organization - safe haven. While the current definition focuses on providing information, tangible support, and monetary resources, it neglects to provide aggrieved parties with a cause of action against those States that harbor terrorists. There is, however, hope in sight. Following several recent decisions interpreting the anti-terrorism exception liberally,[46] two U.S. federal court opinions have indicated that providing safe haven to terrorist organizations is included in the meaning "material support or resources," either as implied in the definition itself or through the enumerated activity of providing "safehouses."[47] Accordingly, the tide may be beginning to turn toward holding sovereign nations liable for allowing terrorist organizations to exist within their borders.
III. Analysis
Set against the backdrop of the House Report on the anti-terrorism exception to the FSIA ("House Report"),[48] two U.S. federal courts have ruled on the issue of whether providing sanctuary or safe haven to terrorist organizations is included in the definition of "material support or resources." The House Report states in relevant part:
State sponsors of terrorism include Libya, Iraq, Iran, Syria, North Korea, Cuba, and Sudan. These outlaw states consider terrorism a legitimate instrument of achieving their foreign policy goals. They have become better at hiding their material support for their surrogates, which includes the provision of safe havens, funding, training, supplying weaponry, medical assistance, false travel documentation, and the like. For this reason, the Committee has determined that allowing suits in the federal courts against countries responsible for terrorist acts . . . is warranted.[49]
Accordingly, congressional intent clearly points toward the inclusion of safe haven amongst the many other acts that constitute providing material support or resources. Following this methodology, the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the Fourth Circuit have ruled against the immunity claims of sovereign States, indicated that providing safe haven or sanctuary to terrorist organizations falls within the scope of "safehouses" and thus the definition of "material support or resources."[50]
A. Rux v. Republic of Sudan:[51] Safe Haven and Safehouses
On October 12, 2000, the USS Cole, an American warship, was bombed off the coast of Yemen by the terrorist organization Al-Qaeda.[52] As a result of the attack, seventeen U.S. sailors stationed aboard the Cole were killed.[53] More than fifty surviving family members of the deceased sailors (collectively "Plaintiffs") brought suit against the Republic of Sudan ("Sudan") to recover damages arising from the sailors' deaths.[54] Plaintiffs alleged that Sudan provided "material support and resources" to Al-Qaeda, and accordingly was subject to the authority of U.S. courts vis-à-vis the anti-terrorism exception to the FSIA.[55] Plaintiffs specifically alleged that "Sudan provided material support in the form of funding, direction, training, and cover [in the form safe harbor and shelter] to Al-Qaeda, a worldwide terrorist organization whose operatives facilitated the planning and execution of the bombing of the USS Cole."[56] Sudan responded by filing a motion to dismiss on several grounds, including lack of subject matter jurisdiction.[57] It contended that even if the allegations in the complaint were taken as true, they failed to satisfy the legal definition of providing "material support or resources."[58]
In deciding Sudan's motion to dismiss, the Court examined whether Plaintiff's factual allegations that Sudan provided "safe harbor and shelter" to Osama bin Laden and Al-Qaeda, that it permitted the use of the diplomatic pouch for the transportation of explosives, that it gave Al-Qaeda operatives "special authority to avoid paying taxes and duties," and that it "allowed" Al-Qaeda to operate terrorist training camps in Sudan, satisfied the current definition of "material support or resources."[59] The Court concluded that "all [of these actions] fall within the definition of material support or resources," and denied Sudan's motion to dismiss for lack of subject matter jurisdiction.[60] Thus, the U.S. District Court for the Eastern District of Virginia endorsed a definition of "material support or resources" which included providing safe harbor and allowing terrorist training to take place within the defendant country's borders.
On appeal, the Fourth Circuit affirmed the district court's decision that subject matter jurisdiction existed over Sudan for its role in the terrorist attack on the USS Cole.[61] Integral to the court's analysis of Sudan's motion to dismiss was whether the sanctuary and safe haven provided to Al-Qaeda satisfied the definitional requirements of "material support or resources." While supporting the district court's contention that safe harbor was implied in the definition of material support or resources,[62] the Fourth Circuit indicated that providing "safe haven and a base of operations from which to conduct . . . terrorist operations" fell within the purview of "safehouses" under 18 U.S.C. 2339A.[63]
The Fourth Circuit began its analysis by indicating that the various forms of material support referenced in 18 U.S.C. 2339A must be considered "in a manner that effectuates congressional intent."[64] With this principle in mind, the appellate court endeavored to determine the scope and nature of "safehouses" by first defining the term as a "place where one may engage in secret activities or take refuge."[65] Within this framework, the court held that "it is entirely consistent with [the definition of ‘safehouses'] to construe the statutory term to include the making available of locations within a country that serve as a base of operations for terrorists."[66] The court concluded that Sudan's support in providing Al-Qaeda with locations within the country where its members could "meet, engage in business activities and operate terrorist training camps" satisfied the "safehouses" provision of 18 U.S.C. 2339A for purposes of meeting the jurisdictional requirements of 28 U.S.C. 1605(a)(7).[67] Thus, the significance of the Fourth Circuit's decision is two fold. First, the court explicitly established that providing safe haven to terrorist organizations is consistent with the definition of "safehouses." Second, and seemingly as an alternative analysis, the court gave great weight to the district court's holding that providing safe haven is implicit in the definition of "material support or resources." Accordingly, the Court established two methods by which a plaintiff can hold a sovereign state liable for harboring terrorist organizations.
B. Owens v. Republic of Sudan
Shortly after the Fourth Circuit's 2006 decision in Rux, the U.S. District Court for the District of Columbia decided Owens v. Republic of Sudan ("Owens II"),[68] in which it endorsed the appellate court's holding regarding the expansive scope of "safehouses." The Owens action arose out of the August 7, 1998 terrorist attacks on the United States embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. The nearly simultaneous bombings killed approximately 224 people and wounded more than 4,000, including the ten principal plaintiffs in the Owens action.[69] Pursuant to the FSIA, Plaintiffs filed suit against the Republic of Iran, the Republic of Sudan, and two of their respective ministries on the theory that they provided "material support" to Al-Qaeda and Hezbollah, the organizations believed to have planned, orchestrated, and carried out the bombings.[70] Plaintiffs specifically alleged that Sudan provided "‘cover', ‘support', and ‘sanctuary'," to the terrorist organizations, and claimed that a meeting occurred in the Republic of Sudan between the leaders of al-Qaeda and Hezbollah to plan the embassy attacks.[71]
In 2005, Sudan filed a motion to dismiss claiming that Plaintiffs failed to allege that it provided "material support" to Al-Qaeda and Hezbollah with the specificity required by law.[72] While the district court agreed that that Plaintiffs' allegations of material support lacked the detailed specificity necessary to establish jurisdiction under subparagraph 7 of the FSIA, it denied the motion to dismiss and granted Plaintiff's leave to file an amended complaint.[73] In their amended complaint, Plaintiffs alleged with detail and particularity several actions on the part of Sudan that unambiguously constituted providing "material support or resources."[74] Specifically, Plaintiffs claimed that Sudan permitted Al-Qaeda to relocate "en masse" from Afghanistan to Sudan, provided Al-Qaeda safe haven to construct weapons and plan the embassy bombings, assisted Al-Qaeda in moving equipment in and out of Sudan, and provided financial support to Al-Qaeda by allowing it to purchase companies directly from the Sudanese government.[75] The court found these allegations sufficient to constitute providing "material support or resources" and specifically held that "insofar as the government of the Republic of Sudan affirmatively allowed and/or encouraged Al-Qaeda and Hezbollah to operate their terrorist enterprises within its borders, and thus provided a base of operations for the planning and execution of terrorist attacks . . . Sudan provided a ‘safehouse' within the meaning of 18 U.S.C. § 2339A, as incorporated in 28 U.S.C. § 1605(a)(7)."[76] Accordingly, although requiring greater specificity in Plaintiffs' allegations of "material support or resources," the D.C. District Court endorsed a definition of "safehouses" which includes providing safe harbor to terrorist organizations.
IV. The Current Status and Prospective Future of "Material Support or Resources"
Interpretation of the FSIA's extraterritorial reach stands at a crossroads. While courts once sought to limit the territorial scope of the FSIA,[77] it now appears that the same courts have begun to embrace an expansive perception of the actions sufficient to confer jurisdiction over sovereigns. By interpreting terms such as "providing" and "opportunity to arbitrate" liberally,[78] courts have subtly begun to stretch the definitional scope of the FSIA's anti-terrorism exception in order to reflect the congressional intent of the statute. The most recent examples of this expansion can clearly be seen in Rux and Owens where, as discussed above, the Fourth Circuit Court of Appeals and the D.C. District Court made clear that providing safe haven to terrorist organizations falls within the scope of the anti-terrorism exception to the FSIA.[79] While this recent trend is certainly a step toward enhancing the influential prowess of the anti-terrorism exception, there is no guarantee that courts will continue this liberal construction. Despite this somewhat uncertain future, the recent willingness of courts to view the terms of the anti-terrorism exception broadly indicates that this trend may be a permanent feature of FSIA interpretation.
A. Present Constitutional and Precedential Concerns
Since its inception in 1996, the anti-terrorism exception, and specifically the definition of "material support or resources," has faced judicial challenges by those claiming the provision is unconstitutionally vague and overbreadth. However, in 2006, the U.S. Court of Appeals for the Fourth Circuit responded to these challenges when it affirmatively held in U.S. v. Khan that "nothing about th[e] statutory framework [of 18 U.S.C. 2339A] is unconstitutional, improper, or even unusual."[80] In upholding the constitutionality of 18 U.S.C. 2339A, the appellate court provided support for the current interpretation of "material support or resources," and a base for the FSIA's continued definitional growth. Accordingly, whether as an implied term of "material support or resources" or inherent in the definition of "safehouses," providing safe harbor to terrorist organizations appears, at least in principle, to be developing as an acceptable basis on which to maintain jurisdiction over foreign states under the FSIA.
While the Fourth Circuit's holdings in Khan and Rux are certainly of great importance to the overall growth and interpretation of the anti-terrorism exception to the FSIA, the decisions do not have a great deal of precedential effect. The only courts truly obligated to follow the court's holding in Khan or interpretation in Rux are those bound by the decisions of the Fourth Circuit Court of Appeals. Accordingly, while other district and appellate courts can look to the Fourth Circuit for guidance, they need not adhere to the court's decision in either case. This potential conflict of interpretation was avoided in the case of Khan, as several appellate courts throughout the country have ruled in favor of the constitutionality of 18 U.S.C. 2339A.[81] The future, however, is not as certain for the Fourth Circuit's broad interpretation in Rux, as Owens is the only other case even addressing the issue of whether providing safe haven is included in the definition of "material support or resources." Accordingly, although several courts have recently construed the terms of 18 U.S.C. 2339A liberally, the possibility exists that an expansion to include an implied term such as "harboring" may push the constitutionality of the provision beyond permissible bounds.
B. Judicial Interpretation, Express Amendments and the Potential Influence: Cause and Effect
Two significant and realistic possibilities exist that would allow "harboring" to be included in the definition of "material support or resources." The first is a U.S. Supreme Court decision interpreting the term "safehouses," or ruling on whether "harboring" is an implied term of 18 U.S.C. 2339A itself. As the prevalence of terrorism grows throughout the world, there is a distinct possibility that this issue will be litigated at an ever-increasing rate. Accordingly, it is likely that an appeal regarding the scope of "safehouses" or the implication of "harboring" will eventually reach the Supreme Court.
While a Supreme Court decision in favor of expanding the scope of 18 U.S.C. 2339A would certainly clarify the issue and give effect to the congressional intent behind the anti-terrorism exception, the possibility exists that the Court could interpret the term narrowly. Accordingly, an express amendment to the definition of "material support or resources" is the only certain way to ensure that "Americans and/or their loved ones . . . [have] an important economic and financial weapon against" terrorists states.[82] Such an amendment would merely require adding the term "safe haven" or "harboring" to the current definition of "material support or resources," but its effect on the willingness of states to harbor terrorist organizations could prospectively be substantial.
In 2003, the District Court for the District of Colombia awarded 17 former Iraqi prisoners of war almost $1 billion in total damages under the anti-terrorism exception to the FSIA.[83] The court reasoned that this "sizable award would be likely to deter the torture of American POWs by agencies or instrumentalities of Iraq or other terrorist states in the future."[84] However, the prospective deterrence there could be minor in comparison to that of an express amendment to the FSIA to permit a cause of action against sovereign states for harboring. Such an amendment could potentially provide numerous plaintiffs with a claim against harboring states where one did not previously exist. Accordingly, terrorist nations could be faced with a dramatic increase in the number of suits under the FSIA and the possibility of multi-million or even billion dollar awards therefrom. Faced with such an economic reality, harboring states would likely be forced to exile terrorist organizations that reside within their sovereign territory, and in doing so would severely cripple the ability of terrorists organizations to exist and carry out attacks on American citizens.
V. Conclusion
The concept of foreign sovereign immunity has undergone a significant transformation since its absolute beginnings. As the current theory of immunity continues to evolve under the FSIA, courts have become more willing to restrict the exemptions once enjoyed by sovereign states. Most recently, courts have begun to indicate that foreign states should be held responsible for harboring or providing safe haven to terrorist organizations, despite the absence of express language in the FSIA permitting such liability. While this jurisdictional initiative is certainly a step toward providing American citizens with an economic and financial weapon against terrorist states, the constitutional and precedential repercussions of such a re-characterization remain uncertain. Accordingly, as the definition of "material support or resources" continues to evolve, courts must be mindful of the congressional intent behind the anti-terrorism exception and remain vigilant in their efforts to better protect United States citizens from terrorist attacks.
* J.D., The John Marshall Law School, magna cum laude, 2008; B.A., Indiana University, Bloomington, 2005. Associate Attorney, Clausen Miller P.C., Chicago, Illinois. The author wishes to thank Prof. Karen Halverson Cross for her input and help in developing this topic. The author also wishes to thank his parents and Carly for their love and support.
[1]President George W. Bush, Statement by the President in his Address to the Nation (Sept. 11, 2001) available at http://www.whitehouse.gov/news/releases/2001/09/20010911-16.html.
[2] Dale v. Colagiovanni, 443 F.3d 425, 427-28 (5th Cir. 2006) (citing Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434-39 (1989)).
[3] Foreign Sovereign Immunities Act, 28 U.S.C.A. § 1605(a)(7) (West 2008).
[4] Lydia M. Valenti, The Use of Procedure to Effect Equity: Section 1605(b) of the Foreign Sovereign Immunities Act of 1976, 10 Fla. St. U. L. Rev. 129, 131 (1982).
[5] Clinton L. Narver, Putting the "Sovereign" Back in the Foreign Sovereign Immunities Act: The Case for a Time of Filing Test For Agency or Instrumentality Status, 19 B.U. Int'l L.J. 163, 167 (2001).
[6] Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 146-47 (1812).
[7] Id. at 147. The Schooner Exchange was a merchant vessel seized on the high seas by the French navy in 1810. When the ship was discovered docked off the coast of Philadelphia in U.S. territorial waters, the original owners of the ship filed a suit for libel to recover the then converted French warship. Id. at 117-19.
[8] Id. at 137.
[9] Id. at 144.
[10] Schooner Exch., 7 Cranch at 125.
[11] Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562 (1926).
[12] Id. at 574. In Berizzi Brothers, the Court held that a merchant vessel, owned and operated by the Italian government and engaged in carrying passengers and commercial cargo, enjoys the same immunity as public warships. Id.
[13] See Ex parte Peru, 318 U.S. 578, 580 (1943) (holding that federal courts should grant immunity to foreign states whenever the State Department so indicated).
[14] Jeffrey Jacobson, Trying to Fit a Square Peg into a Round Hole: The Foreign Sovereign Immunities Act and Human Rights Violations, 19 Whittier L. Rev. 757, 763 (1998) (indicating that State Department recommendations regarding immunity were often shaped by diplomatic pressures from foreign nations (citing Drexel Burnham Lambert Group v. Galadari, 810 F. Supp. 1375, 1379 (S.D. N.Y. 1993))).
[15] Jacobson, supra note 14, at 763-64 (discussing the case-by-case approach to determining immunity and the resulting lack of uniformity and equity (citing Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 487-88 (1983))).
[16] Narver, supra note 5, at 168; see also J. Dellapenna, Suing Foreign Governments and Their Corporations 3-8 (BNA 1988); Lydia M. Valenti, The Use of Procedure to Effect Equality: Section 1605(b) of the Foreign Sovereign Immunities Act of 1976, Fla. St. U.L. Rev. 129, 134 (1982).
[17] See Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 702-703 (1976) (stating that the restrictive approach to foreign sovereign immunity has been adopted by a "large and increasing number of foreign states in the international community").
[18] Narver, supra note 5, at 169; see, e.g., Gary B. Born, International Civil Litigation in United States Courts 200 (3d ed., Kluwer Law International 1996).
[19] Alfred Dunhill of London, Inc., 425 U.S. at 711-15(Letter from Jake B. Tate, State Department Acting Legal Advisor, to Phillip B. Perlman, Acting Attorney General (May 19, 1952)).
[20] Id. at 714.
[21] H.R. Rep. No. 94-1487, pt. 8 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6607.
[22] Danny Abir, Foreign Sovereign Immunities Act: The Right to a Jury Trial in Suits Against Foreign Government Owned Corporations, 32 Stan. J Int'l L. 159, 165 (1996)(contending that once plaintiffs successfully moved past the sovereign immunity process and received a judgment in their favor, they were confronted with the reality that courts still tended to apply absolute foreign sovereign immunity in the execution of the judgment). The department of justice maintained that although a sovereign may be immune from suit, in certain circumstances international law mandates that the property of a foreign sovereign be immune from execution to satisfy a judgment. Exemptions from Territorial Jurisdiction, 6 Marjorie Whiteman, Digest Of International Law, 711 (1970). For cases illustrating this phenomenon see Weilamann v. Chase Manhattan Bank, 192 N.Y.S.2d 469 (1959); Rich v. Naviera Vacuba S.A., 295 F.2d 24 (4th Cir. 1961).
[23] The congressional intent behind transferring the determination of sovereign immunity from the executive to the judiciary was to reduce the foreign policy implications of such determinations. H.R. Rep. No. 94-1487, at 7; see also Carolyn J. Brock, The Foreign Sovereign Immunities Act: Defining a Role for the Executive, 30 Va. J. Int'l L. 795, 803 (1990) (indicating that by freeing immunity decisions from diplomatic influences Congress hoped they could now be made on purely legal grounds, establishing consistency in the determination of sovereign immunity).
[24] 28 U.S.C. §§ 1602-1611.
[25] H.R. Rep. No. 94-1487, at 7 ("the immunity of foreign states is ‘restricted' to suits involving a foreign state's public acts (jure imperii) and does not extend to suits based on its commercial or private acts (jure gestionis)").
[26] See 28 U.S.C. § 1602 (proclaiming that claims of foreign states to immunity shall be determined by courts of the United States and of the States).
[27] H.R. Rep. No. 94-1487, at 12. The House Report further indicates that Congress intended the FSIA "to preempt any other state or federal law (excluding applicable international agreements) for according immunity to foreign sovereigns, their political subdivisions, their agencies, and their instrumentalities." Id. The Supreme Court recognized this congressional intent in stating that the FSIA "establishes a comprehensive framework for determining whether a court in this country, state or federal, may exercise jurisdiction over a foreign state" (Abigail Hing Wen, Suing The Sovereign's Servant: The Implications Of Privatization For The Scope Of Foreign Sovereign Immunities, 103 Colum. L. Rev. 1538, 1549 (2003) (quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 610-11 (1992))).
[28] 28 U.S.C. § 1602; see supra text accompanying note 26.
[29] Karen Halverson, Is a Foreign State a "Person"? Does it Matter?: Personal Jurisdiction, Due Process, and the Foreign Sovereign Immunities Act, 34 N.Y.U. J. Int'l L. & Pol. 115, 120 (2001) (brilliantly commenting on the interplay of personal jurisdiction, subject matter jurisdiction, and sovereign immunity in the FSIA).
[30] In addition to the states themselves, the definition of "foreign state" includes political subdivisions, agencies, and instrumentalities of foreign states. 28 U.S.C. § 1603(a).
[31] 28 U.S.C. § 1604.
[32] 28 U.S.C. § 1605.
[33] 28 U.S.C. § 1605(a)(1) provides that a "state shall not be immune from the jurisdiction of courts of the United States or of the States [where the] foreign state has waived its immunity either expressly or by implication." "Generally [], implicit waivers are found only where (1) a foreign state has agreed to arbitration in another country; (2) . . . has agreed that the law of a particular country should govern the contract; or (3) . . . has filed responsive pleading without raising the defense of sovereign immunity." Gates v. Victor Fine Foods 54 F.3d 1457, 1465 (9th Cir. 1995), cert. denied, 516 U.S. 869 (1995); but see In re Air Crash Disaster Near Roselawn, Ind. on Oct. 31, 1994, 96 F.3d 932, 940-41 (7th Cir. 1996); In re Complaint of Clearsky Shipping Corp., No. 96-4099, 1999 WL 1021825 (E.D. La. Nov. 8, 1999) (criticizing the court's approach in Gates).
[34] 28 U.S.C. § 1605(a)(2) embodies the restrictive theory of foreign sovereign immunity and provides that a "state shall not be immune from the jurisdiction of courts of the United States or of the States [where] the action is based upon a commercial activity carried on in the United States by a foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States." The act further provides that "a ‘commercial activity' means either a regular course of commercial conduct or a particular commercial transaction or act[,] the . . . character of [which] shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." 28 U.S.C. § 1603(d).
[35] 28 U.S.C. 1605(a)(5) is often asserted by plaintiffs in the context of human rights violations and provides that a state shall not be immune from the jurisdiction of courts of the United States or of the States, in cases involving noncommercial torts, where "money damages are sought against a foreign state for personal injury or death, or damages to or loss of property, occurring in the United States and caused by the tortuous act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office . . . ." 28 U.S.C. § 1605(a)(5). The shortcoming of this exception, as it relates to human rights violations, is that the tortious act must occur "in the United States." However, if plaintiffs allege at least one entire tort occurring in the United States, such an allegation brings the case within 28 USCS § 1605(a)(5), notwithstanding that some allegedly tortious acts or omissions took place outside the United States. Olsen v Government of Mexico, 729 F.2d 641 (9th Cir. 1984) cert. denied, 469 U.S. 917 (1984).
[36] 28 U.S.C. § 1606. Where a foreign state is subject to the jurisdiction of United States courts, it is entitled to certain procedural protections. These procedural protections include: (1) the jury trial protection, which provides that a foreign state shall not be subject to a jury trial; (2) the removal protection, which allows a foreign state to remove lawsuits brought in state court to federal court; (3) the service of process protection, which provides that the plaintiff must comply with certain guidelines in order to properly bring a suit against a foreign sovereign; and (4) a statute of limitations under the anti-terrorism provision, which provides that an action under subsection 7 cannot be maintained unless it is commenced no later than 10 years after the date on which the cause of action arose. See 28 U.S.C. §§ 1441(d), 1330(a), 1605(b)(1), 1605(f).
[37] Warren D. Zaffuto, A "Pirate's Victory": President Clinton's Approach to the New FSIA Exception Leaves the Victors Empty Handed, 74 Tul. L. Rev. 685, 697 (1999).
[38] See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1241 (1996) (codified at 28 U.S.C. § 1605(a)(7) (Supp. III 1997)).
[39] 28 U.S.C. § 1605(a)(7). Five months after the FSIA was amended to include the anti-terrorism exception, Congress enacted a provision creating a private cause of action against officials, employees, and agents of foreign states for cases falling within subparagraph 7. Known as the Flatow Amendment, this provision states in part:
(a) An official, employee, or agent of a foreign state designated as a state sponsor of terrorism designated under section 6(j) of the Export Administration Act of 1979 while acting within the scope of his or her office, employment, or agency shall be liable to a United States national or the national's legal representative for personal injury or death caused by acts of that official, employee, or agent for which the courts of the United States may maintain jurisdiction under section 1605(a)(7) of title 28, United States Code, for money damages which may include economic damages, solatium, pain and suffering, and punitive damages if the acts were among those described in section 1605(a)(7). Flatow Amendment, Pub. L. No. 104-208, § 589, 110 Stat. 3009-172 (1996) (codified at 28 U.S.C. § 1605 (Supp. 2002)).
[40] Halverson, supra note 29, at 127-128 (discussing the consequences of the FSIA's expansion in territorial scope).
[41] 28 U.S.C. § 1605(a)(7)(A) (indicating that the court shall decline to hear a claim arising under subparagraph seven of the FSIA if the foreign state was not designated under section 6(j) of the Export Administration Act of 1979 (50 U.S.C App. 2405(j) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371)); see Matthew J. Peed, Blacklisting As Foreign Policy: The Politics and Law of Listing Terror States, 54 Duke L.J. 1321, 1331 (2005) (indicating that the AEFPA's use of the terrorism list in a judicial context creates three major problems: 1) by making the subject matter jurisdiction of federal courts dependant on the decision of the Secretary of State, the statute "invites foreign policy entanglement in the judicial process;" 2) by using political criteria to determine which nations may be sued, the AEDPA encourages "inconsistent treatment of similarly situated plaintiffs and defendants;" 3) by only allowing suits against specific countries, the statute "encourages plaintiffs to stretch the bounds of plausibility in their pleadings to catch a state-sponsor of terrorism, warping the judicial process").
[42] 48 C.F. R. § 252.209-7001 (2001) (listing those countries the Secretary of State has deemed "terrorist countr[ies]" in accordance with section 6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(i)(A))).
[43] 28 U.S.C. § 1605(a)(7)(B)(i) (indicating that even where a foreign state is designated as a "terrorist country" by the State Department, it must be afforded a "reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration").
[44] 28 U.S.C. § 1605(a)(7).
[45] 18 U.S.C. § 2339A(b)(1) (2000 & Supp. 2002).
[46] See U.S. v. Sattar, 314 F. Supp. 2d 279, 297 (S.D.N.Y. 2004) (construing the term "providing" liberally to mean "making ready or available" as opposed to "the physical transfer of an item"); see also Simpson v. Socialist People's Libyan Arab Jamahiriya, 180 F. Supp. 2d 78, 83 (D.D.C. 2001) (construing the term "offer to arbitrate" liberally to mean any offer before, concurrent with, or after filing a complaint as opposed to a condition precedent to filing a complaint); Hartford Fire Ins. Co. v. Socialist People's Libyan Arab Jamahiriya, No. 98-3096 (TFH), 1999 U.S. Dist. LEXIS 15035, at *9 (D.D.C. 1999) (interpreting 28 U.S. C. § 1605(a) (7) broadly as to permit third-party claims for indemnity and contribution despite express language permitting such causes of action); Kilburn v. Republic of Iran, 277 F. Supp. 2d 24, 39 (applying the respondeat superior implications of 28 U.S.C. § 1605(a)(7) to the Flatow Amendment); Estates of Yaron Ungar v. Palestinian Authority, 304 F. Supp. 2d 232, 271 (D.R.I. 2004) (holding that the FSIA contains "no requirement that the survivors or heirs of a United States national killed by an act of international terrorism must themselves be citizens of the United States"); La Reunion Aerienne v. Socialist People's Libyan Arab Jamahiriya, No. 05-01932 (HHK), 2007 U.S. Dist. LEXIS 16498, at *8 (D.D.C. 2007) (holding that the language of the FSIA permits personal injury claims brought by assignees and/or subrogees of victims of terrorist acts).
[47] See infra Parts III A-B. (indicating that while some courts have found providing safe haven to be implied in the definition of "material support or resources," other courts have held that safe haven is included in the definition of "safehouses").
[48] H.R. Rep. No. 104-383 (1995).
[49] Id. (emphasis added). The U.S. Court of Appeals for the District of Columbia indicated that this language may also create liability for multiple foreign states who claim to be providing only "general support." Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123, 1129 (D.C. Cir. 2004).
[50] See generally infra Parts III A-B. (discussing specific U.S. federal court cases where providing safe haven was found to be included in the definition of "material support or resources").
[51] Rux v. The Republic of Sudan. 2005 U.S. Dist. LEXIS 36575 at *1 (E.D. Va. Aug. 26, 2005), aff'd, 461 F.3d 461 (4th Cir. 2006).
[52] Id. at 4.
[53] Id.
[54]Rux, 2005 U.S. Dist. LEXIS 36575 at *4. The plaintiff-family members consisting of widows, minor children, siblings, and parents, filed suit in the U.S. District Court for the Eastern District of Virginia. Id.
[55] Id. at 25.
[56] Id.
[57] Id. at 11.
[58] Rux, 2005 U.S. Dist. LEXIS 36575 at *38. Sudan relied heavily on a recent result in Owens v. Republic of Sudan 374 F. Supp. 2d 1 (D.D.C. 2005) ("Owens I"), where the United States District Court for the District of Columbia concluded that allegations of "‘cover', ‘support', and ‘sanctuary'," along with "a single allegation that a meeting occurred in the Republic of Sudan between the leaders of al-Qaeda and Hezbollah to plan embassy attacks" were too conclusory to establish jurisdiction, and granted plaintiff leave to file an amended complaint. Id. at 12. However, as discussed infra, in later ruling on the amended complaint, the D.C. District Court held that Plaintiffs satisfactorily amended their complaint to include specific allegations, including that Sudan provided Osama bin Laden and Al-Qaeda shelter, security, or financial support, and allowed the claim to proceed. Owens v. Republic of Sudan 412 F. Supp.2d 99 (D.D.C. 2006) ("Owens II"). Further, the court in Rux held that the complaint went well beyond the curt allegations mentioned in Owens I, specifically citing business relationships between Sudan and Osama bin Laden and Al-Qaeda and that Sudan allowed terrorist training to take place within its borders. Rux, 2005 U.S. Dist. LEXIS 36575 at *24.
[59] Rux, 2005 U.S. Dist. LEXIS 36575 at *38.
[60] Id. After indicating that any of the above mentioned factors alone would be sufficient to constitute providing "material support or resources," the Court goes on to assert that Plaintiffs' further allegations of a financial commingling between Sudan, Osama bin Laden and Al-Qaeda also falls within the definition of providing "material support or resources" and suggest the existence of a joint enterprise and partnership. Id.
[61] Rux, 461 F.3d at 477.
[62] The Fourth Circuit proclaimed that 18 U.S.C. 2339A "does not define the forms of material support that are relevant in this case" thereby affirming the district court's decision that not all methods of support are expressed in the definition of "material support or resources." Id. at 470.
[63] Id.
[64] Rux, 461 F.3d at 470 (citing United Hosp. Ctr., Inc. v. Richardson, 757 F.2d 1445, 1453 (4th Cir. 1985) for principles of statutory construction). While discussing congressional intent the court specifically referenced the House Report on the anti-terrorism provision to the FSIA, and indicated that the acts which constitute providing "material support or resources" should be read broadly, as Congress recognized that state sponsors of terrorism "have become better at hiding their material support for their surrogates, which includes the provision of safe havens, funding, training, . . . and the like." Id.
[65] Id. (citing Webster's Ninth New Collegiate Dictionary 1036 (1986)). The Court indicated that the underlying purpose of the FSIA's anti-terrorism provision supports an expansive definition of "safehouses," as Congress adopted the provision to "give American citizens an important economic and financial weapon against" the state sponsors of terrorism by "allowing suits . . . against countries responsible for terrorist acts where Americans . . . suffer injury or death." H.R. Rep. No. 104-518 (1995). Id.
[66] Rux, 461 F.3d at 470.
[67] Rux, 461 F.3d at 471. The Court also indicated that Plaintiff's allegations meet the "financial services" and "transportation" elements of the definition of "material support or resources." However, the court makes clear that while these elements satisfy the jurisdictional requirement of material support, Sudan's act of providing safe haven to Al-Qaeda alone is sufficient to satisfy the definition. Id.
[68] Owens, 412 F. Supp. 2d at 108.
[69] Id. at 101. Principal plaintiffs are those who suffered physical injuries as a result of the terrorist attacks. Also named as plaintiffs were thirty-seven relatives of the principal plaintiffs. Id.
[70] Id.
[71] Id.
[72] Owens, 374 F. Supp. 2d at 15.
[73] Rux, 2005 U.S. Dist. LEXIS 36575 at *4 (discussing the court's reasoning for finding Plaintiffs' complaint too conclusory to satisfy subsection 7 of the FSIA). The court indicated that while the allegations in Plaintiffs' complaint lacked the requisite specificity, it was clear that they could state their allegations in much greater detail. Plaintiffs had submitted hundreds of pages of transcripts containing more detailed allegations of the ways in which Sudan "harbored, transported, protected and supported" Al-Qaeda. Id. Accordingly, the court determined that the proper course of conduct was not to dismiss the complaint for failure to state a claim, but to grant Plaintiffs leave to file an amended complaint. Id.
[74] Owens, 412 F. Supp. 2d at 108.
[75] Id. at 106-08.
[76] Id. at 108; see also United States v. Gerena, 662 F. Supp. 1218, 1227 (D. Conn. 1987) (holding that a particular location was a "safehouse" because it was used for, among other things, the preparation of explosive devices, a "hideout," and a "meeting place used to plan criminal activities").
[77] Halverson, supra note 29, at 128.
[78] 28 U.S.C. § 1605(a)(7) (discussing terms within the anti-terrorism exception to the FSIA which have been liberally construed).
[79] See supra Parts III A-B.
[80] 461 F.3d 477, 493 (4th Cir. 2006); see also Sattar, 314 F. Supp. 2d at 284. In Sattar the court responded to allegations that the current definition of "material support or resources" is unconstitutionally vague and overbreadth. As to the challenge that the provision is void due to vagueness, the court held that the statute sets forth with sufficient clarity the conduct it criminalizes so that ordinary people can understand what conduct is prohibited and so that arbitrary and discriminatory enforcement of the statute is not encouraged. Id. at 302. As to the challenge that the provision is overbreadth, the Court held that the statute is a legitimate exercise of Congress' power to enact criminal law that reflected legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Id. at 304-05.
[81] See U.S. v. Hassoun, 476 F.3d 1181 (11th Cir. 2007) (finding for the constitutionality of 18 U.S.C. 2339A in the context of multiple violations of international law); People's Mojahedin Org. of Iran v. Dep't of State, 327 F.3d 1238 (D.C. Cir. 2003) (holding that 18 U.S.C. 2339A, 2339B, and 2339C do not violate the First Amendment right to free speech); Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th Cir. 2002) (denying a challenge that 18 U.S.C. 2339A violates First Amendment rights the Seventh Circuit held "there is no constitutional right to provide weapons and explosives to terrorists, nor is there any right to provide the resources with which the terrorists can purchase weapons and explosives"); Rein v. Socialist People's Libyan Arab Jamahiriya, 162 F.3d 748 (2d. Cir. 1998) (holding that the anti-terrorism exception to the FSIA "survives constitutional scrutiny").
[82] H.R. Rep. No. 104-383.
[83] Acree v. Iraq, 271 F. Supp. 2d 179 (D.D.C. 2003).
[84] Id. at 224. For other cases discussing deterrence as the main purpose behind the anti-terrorism exception, see Hartford Fire Ins. Co., 1999 U.S. Dist. LEXIS 15035, at *9 (proclaiming that the principal statutory purpose of the FSIA is to deter foreign states from sponsoring terrorist activities); Bettis v. Islamic Republic Of Iran, 315 F.3d 325, 329 (D.D.C. 2003) (holding that the Flatow Amendment sought to create "a judicial forum for compensating the victims of terrorism, and to thereby punish and deter foreign states who have committed or sponsored such acts").
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