It Is Harder Than It Looks to Sue State Sponsors of Terrorism

Rotem and Yoav Golan were injured in a 2015 terrorist attack in Israel when an assailant deliberately drove his car into a crowd of people. The Golans and their family sued Iran and Syria for various torts and for aiding and abetting a terrorist attack. Judge Trevor N. McFadden of the U.S. District Court for the District of Columbia held in Borochov v. Islamic Republic of Iran that the attacker acted on behalf of Hamas, that Iran and Syria each supported Hamas through financial and operational means, and that Iran and Syria were thus liable for the plaintiffs’ injuries. The court accordingly entered a default judgment. Some of the Israeli plaintiffs failed, however, to provide adequate evidence of their damages, as required by Israeli law, so the district court denied them relief. They appealed.

Both Iran and Syria are foreign states entitled to immunity under the Foreign Sovereign Immunities Act (FSIA) unless an exception applies. The plaintiffs relied upon Section 1605A of the FSIA, which creates an exception to immunity and confers subject matter jurisdiction in federal district courts for cases

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 for such an act.

The D.C. Circuit held that 1605A did not apply and the district court lacked subject-matter jurisdiction to hear the case at all. It accordingly vacated and remanded. This disposition of the case apparently means that the none of the claims by any of the plaintiffs are permissible under the FSIA. The appeal thus improved nothing for any plaintiffs and indeed left some worse off.

The problem is this: the assailant did not kill anyone and so, the appellate court reasoned, there was no “extrajudicial killing” under Section 1605A. An attempt to kill someone does not satisfy the statute, the court reasoned. Although the phrase “act of” can refer to the process of doing something, such as the process of killing someone, the court reasoned that the term “in the act of” is generally used to convey that meaning. The “in the act of” language is not used in 1605A, and the court refused to hold “that ‘killing’ means ‘no killing.’” Nor were any of the other acts named in 1605A – torture, aircraft sabotage, or hostage taking – committed by the assailant.

The district court had reasoned to the contrary, based in part on the material support language at the end of 1605A. That language creates an exception to immunity for cases seeking money damages for the “provision of material support or resources for such an act.” The district court read the word “for” to refer to the intent behind the act. Under this readings, Syria and Iran provided material for an extrajudicial killing because they provided support that was intended to have that effect. The appellate court rejected this reading in part because “for” can refer instead to the “to the cause or instigation of an act, or something contributing to the act’s occurrence.”  And the word “act” generally refers to something done or completed. Thus, support for an act of extrajudicial killing requires an actual extrajudicial killing.

The court of appeals cited other reasons to support its interpretation of the statute. The district court’s interpretation creates “an illogical asymmetry” in Section 1605A because a foreign sovereign could be sued (as in the case) for supporting someone else’s unsuccessful attempt at an extrajudicial killing. But the exception would not apply – and a suit would not go forward – if the foreign sovereign itself attempted extrajudicial killing. It makes little sense to encourage states to attempt extrajudicial killings themselves, rather than providing support for others to engage in such conduct.

An intent-based reading of “for” would also involve difficult evidentiary questions at the outset of the litigation. District courts would need to evaluate the subjective intent of a foreign government that provided support to terrorist groups, a difficult inquiry, and one that could lead to odd results. For example, the exception would apparently apply to cases in which the foreign state purportedly wanted a terrorist group to kill someone and provided support for it to do so, but the group diverted the funds for an entirely different purpose, so there was not even an attempted killing. By contrast, interpreting “for” to require a completed act means that district courts need not evaluate intent, but instead would need only “determine whether a foreign government’s material support was a proximate cause of a completed killing.” Finally, “the tiebreaker for any ambiguity in an FSIA jurisdictional requirement,” the appellate court reasoned, “is that the sovereign wins.

Neither Syria nor Iran appeared to contest the default judgment in this case, which is often true in cases brought under 1605A. Nonetheless, state and federal courts alike have an independent obligation to ensure that the statute is satisfied before entering a default judgment. The FSIA provides in 28 U.S.C. § 1608(e) that no judgment by default shall be entered “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” The federal courts’ general obligation to ensure that they have subject matter jurisdiction also requires them to determine whether an exception to immunity applies or not. Although I think it is unfortunate that so many FSIA terrorism judgments are entered as defaults, this case illustrates that federal judges take seriously their obligation to ensure that the terms of the statute are satisfied before granting relief.