Comment by Warren D. Zaffuto
Stephen Flatow recently won a $247 million judgment against Iran for its role in a suicide bomber attack on a tourist bus in Israel. While studying abroad in Israel, Mr. Flatow's daughter, a junior at Brandeis University, was killed in a suicide bombing attack. The terrorist group, the Islamic Jihad, claimed credit for the attack. The Flatow family asserted that Iran backed the group and sued under the recently enacted Foreign Sovereign Immunities Act (FSIA) amendments. These amendments allow Americans to seek damages against nations suspected of sponsoring terrorism. The judge, unfortunately, did not specify how the family would recover the money. It was presumed that the money would be taken from Iranian assets frozen by the United States in 1979. However, shortly thereafter President Clinton essentially nullified the legislation by using a “presidential waiver” (veto) to immunize Iran from the judgment. With the implementation of the recent amendments, there was also a clause giving the President the power to use a waiver for national security reasons (i.e., the maintenance of diplomatic relations).
The Flatow award was one of the first under the 1996 law. It came, however, at a time when the Clinton administration perceived realistic prospects of a change in course by Iran in its relations with the United States. In all likelihood, the State Department was worried about severing its already poor relations with the Iranian government. Since the fall of the Shah in 1979 and the U.S. hostage crisis thereafter, diplomatic relations with Iran have been virtually nonexistent. Recently, however, it seems that the State Department has made some improvement and that better relations may be around the corner. Thus, U.S. foreign policy makers face a dilemma. On one hand, Congress wants to punish the terrorist-supporting nation for its role in such evil activities. On the other hand, the administration seeks to improve overall relations with Iran. Enforcing a $247 million judgment against Iran by attaching its “blocked” assets would likely only impede any further success in bilateral talks with Iran. Which path should the U.S. follow?
The federal district court gave the Flatows a judgment, but they ultimately lost due to the waiver. However, with the recent decision in Alejandre v. Republic of Cuba, things may soon change. The issues raised in recent cases could affect an entire line of lawsuits concerning how the United States should treat the assets of “rogue” governments with which we no longer have diplomatic ties. If the Flatows and their supporters get their way, the families of the victims of terrorism, such as the victims of the Pan Am bombing or those held hostage in the Middle East, would be able to sue not just for money, but for diplomatic real estate. Unlike other cases, the Flatows are asking for diplomatic real estate. This presents an entirely new issue. A ruling in favor of the Flatows would mean that foreign state-owned assets could be reached and property could be attached. The Clinton administration argues that if the United States opens the door to such lawsuits, the United States might also be subject to reciprocal (i.e., retaliatory) policies. This could result in a flood of litigation against the United States for all sorts of things, such as the behavior of off-duty military personnel and embassy workers, unpaid NATO bills, unpaid United Nations fees, or even unpaid parking tickets. The suggested policy, the State Department argues, would no doubt have very costly and unnecessary results. It would also sever any possibilities of patching old wounds with certain countries and thereby put our national security at risk.
This Comment presents both sides of the story, focusing primarily on the following cases: (1) Alejandre v. Republic of Cuba, (2) Flatow v. Islamic Republic of Iran, and (3) Cicippio v. Islamic Republic of Iran. Special attention is given to the history of foreign sovereign immunity, the newly enacted amendments to the FSIA, current policy, and the future outlook of foreign sovereign immunity.
The issues surrounding foreign sovereign immunity have triggered an international debate over the Clinton administration's foreign policy and the ability (or inability) of victims to collect damages from governments accused of supporting terrorist acts. After careful consideration of the various issues and concerns, this Comment concludes that there can be no justice without due compensation, and therefore agrees with Judge King's recent chastising of the Clinton administration for its approach to this situation, which has been “inconsistent at best.”
About the Author
Warren D. Zaffuto. J.D. candidate 2000, Tulane University School of Law; B.A. 1995, Tulane University.
Citation
74 Tul. L. Rev. 685 (1999)