Supreme Court CVSGs in Terrorism Case
January 22, 2025
On January 13, 2025, the Supreme Court called for the views of the Solicitor General in Borochov v. Islamic Republic of Iran. (This is commonly known as a “CVSG.”) The question presented is whether the Foreign Sovereign Immunities Act’s (FSIA) exception for state sponsors of terrorism, 28 U.S.C. § 1605A, extends to cases in which victims are injured but not killed.
As previously discussed at TLB, the D.C. Circuit held that § 1605A did not apply because no one was killed in the attack. The defendants, Iran and Syria, did not appear to defend against the claims below and did not respond to the Supreme Court’s request for a response to the petition for cert. But the Department of Justice rode to their rescue at the D.C. Circuit, filing an amicus brief arguing that § 1605A did not apply.
The Solicitor General can be expected to adhere to this position and to urge the Supreme Court to deny cert because the decision below was correct. But the Court presumably knows this, and its CVSG may indicate some concern that the decision below was in fact wrong.
The State Sponsors of Terrorism Exception
The FSIA provides that foreign states are immune from suit in U.S. courts unless an exception applies. In 1996, Congress added an exception to the Act for state sponsors of terrorism. The exception, now codified as 28 U.S.C. § 1605A, reads:
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter 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 if such act or provision of material support or resources 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. (Emphasis added).
The exception only applies to foreign states that have been designated by the Department of State as state sponsors of terrorism, but Iran and Syria have been so designated.
The plaintiffs brought suit for injuries from two terrorist attacks by Hamas, to which Iran and Syria were alleged to have provided material support. The attacks did not involve torture, aircraft sabotage, or hostage taking, so immunity turns on whether the plaintiffs’ injuries were caused by an act of extrajudicial killing or material support for such an act.
The D.C. Circuit’s Decision
Writing for a unanimous panel, Judge Patricia Millett concluded that they were not. She reasoned that the plaintiffs’ injuries were not caused by an act of extrajudicial killing “because the terrorist attack that injured them did not kill anyone.” Section 1605A borrows its definition of “extrajudicial killing” from the Torture Victim Protection Act (TVPA), which seems to require a completed killing not an attempted one. The opinion seems to assume that if one person were killed in an attack, other victims who were only injured could bring suit because there would then be an “extrajudicial killing.” But that was not the case in Borochov.
Judge Millett also reasoned that plaintiffs’ injuries were not caused by material support for an act of extrajudicial killing. Emphasizing the words “such an act,” she wrote that “the provision creates secondary liability for governments that aid ‘such an act’ listed earlier in the sentence—that is, a completed act of torture, extrajudicial killing, aircraft sabotage, or hostage taking.”
Judge Millett analogized material support to aiding and abetting. Relying on the Supreme Court’s narrow interpretation of aiding and abetting liability in a different statutory provision involving terrorism in Twitter, Inc. v. Taamneh (2023), she noted that “a completed crime is necessary for aiding-and-abetting liability to attach.”
She rejected plaintiffs’ argument that material support for extrajudicial killing could refer to attempts that were not successful. While acknowledging that “for” may indicate an “intended goal,” she wrote that exceptions to immunity should be construed narrowly. She also viewed plaintiffs’ argument as creating a “logical asymmetry.” “A foreign sovereign could be sued if it supported someone else’s attempted extrajudicial killing,” she explained. “But it would be immune from suit if it directly attempted the extrajudicial killing itself.” She could see no reason to think that “Congress would have desired such a lopsided liability regime.”
The Cert Petition
The petition for certiorari pushes back against many of these points. “Congress did not provide immunity,” it argues, “for the state sponsor of a less effective terrorist, who is stopped before he can inflict his intended maximum damage, or who injures a victim fortunate enough to receive prompt, lifesaving care.” The petition relies heavily on the clause referring to material support for extrajudicial killing. “Just as someone may dress ‘for’ a dinner party that gets abruptly canceled,” it reasons, “a state sponsor of terrorism can provide support ‘for’ an extrajudicial killing that does not materialize.”
The petition challenges the D.C. Circuit’s reliance on Twitter v. Taamneh. “Congress knows how to create liability for aiding and abetting terrorism when it wants to,” the petition notes, “and chose to use markedly different language to penalize the provision of material support for acts of terror.” Nor would reading the material support provision more broadly than the direct act provision be illogical, the petition argues, because “state sponsors of terrorism rarely commit acts of terror directly; instead, these states fund nonstate terrorist groups to maintain plausible deniability when these groups use violence and preserve the power to have them operate in their interest” (quotation marks omitted).
There is no need to read § 1605A narrowly to avoid foreign relations problems, the petition notes. Unlike other exceptions to immunity under the FSIA, this one applies only to states that have been designated by the State Department as state sponsors of terrorism.
Despite the absence of a circuit split on the question, the petition argues that Supreme Court review is appropriate. The question arises frequently, and most district courts to have addressed the question have gone the other way. Because of FSIA’s venue provision shunts most state-sponsored terrorism exceptions to the District of Columbia, a split is unlikely evolve. And new cases presenting the question in the District for the District of Columbia will be foreclosed by Borochov.
Conclusion
Whether the Supreme Court ultimately decides to grant cert in Borochov or not, it may be time for Congress to revisit and revise § 1605A. Although commonly referred to as the “state sponsors of terrorism exception,” § 1605A does not reach all acts of terrorism. It is limited to torture, extrajudicial killing, aircraft sabotage, hostage taking and (of course) material support for those things.
Compare this to the definition of “international terrorism” in the federal Anti-Terrorism Act (ATA), which speaks in more general terms and would almost certainly cover the attacks at issue in Borochov. When Congress passed JASTA in 2016 and created a new exception, 28 U.S.C. § 1605B, for international terrorism against the United States, it incorporated the ATA’s definition. Perhaps it is time to do the same with § 1605A.