Compensating Victims of Terrorism
Litigation Against Terrorists and their Sponsors - State and Private
The bombing of Pan Am Flight 103 in 1988, the attack on the World Trade Center in 1993, and numerous attacks on U.S. citizens abroad convinced Congress that existing civil remedies were inadequate for compensating victims of international terrorism. In the 1990s, Congress expanded federal jurisdiction by adding new causes of action and new defendants – including state-sponsors of terrorism. In providing for civil suits against terrorist supporters, Congress incorporated victims into the government’s effort to curtail terrorism by eliminating its funding. Now, a decade or more later, these policy changes are ripe for analysis. Victims, defendants and federal courts continue to struggle with the scope of the expanded jurisdiction and the effects of the lawsuits are triggering other policy concerns regarding First Amendment protections, equitable compensation for victims and charitable giving.
In 1992, Congress passed The Antiterrorism Act (ATA), providing a civil remedy for United States nationals who are injured by reason of an act of international terrorism. The Act provides scant and vague prescriptions and thus interpretation of the Act requires the incorporation of several other antiterrorism provisions and traditional tort principals. Suits may be brought against a variety of defendants including individuals, foreign non-governmental organizations, and domestic organizations.
The cases litigated under the ATA have ironed out most of basic jurisdictional questions, but considerable uncertainty remains about how to apply tort principles to the numerous and varied actors along the chain of terrorism financing. The recent Seventh Circuit decision in Boim v. Quranic Literacy Institute outlines the range of issues involved. The majority, concurring and dissenting opinions debate the theory of liability as primary or secondary including, whether and to what extent plaintiffs must demonstrate a defendant’s intention, and the standards for proving causation. Did the Seventh Circuit get it right? If not, should Congress amend the ATA to clarify the scope of liability? What is the appropriate scope of liability? Of course, this determination has serious implications beyond financial compensation for victims. Many argue that while constitutional, the ATA infringes too heavily on the First Amendment protections of those who donate to charitable organizations and that the threat of liability has decreased global charitable giving to the world’s most needy. Moreover, this expansion of federal jurisdiction is not only new to the United States, but to the international community. Some fear reciprocal suits in foreign courts, placing the international business community at risk.
In the Antiterrorism and Effective Death Penalty Act of 1996, Congress opened the federal courts to civil actions against states that sponsored terrorism. With rare exception, these cases end in default judgments and the real battle is collecting these judgments from the limited state assets within the United States. To complicate matters, the executive branch has generally frozen the assets for diplomatic reasons, and Congress has on some occasions found it necessary to pay the judgments from federal funds. These developments raise important questions about the deterrent effects of such suits and fairness in compensating some victims and not others. Considering the resources invested in litigating these suits, the implications for diplomatic efforts, and the unlikely satisfaction of judgments, are suits against state sponsors appropriate tools for compensating victims or for deterring attacks? Are there better, more cost-effective alternatives?
INSCT plans a symposium and report focusing on this intersection of tort law and counterterrorism efforts.
