State Supporters of Terrorism in the United States

State Supporters of Terrorism and the Foreign Sovereign Immunities Act

The Foreign Sovereign Immunities Act removes the immunity of certain foreign states with respect to specific acts of state-sponsored terrorism. This particular exception is almost unique to the United States, since to date only one other country has adopted a comparable limitation to the general rule of sovereign immunity.231 It is also invoked frequently. The exception was first enacted in 1996, and steadily growing numbers of plaintiffs have sought to take advantage of its provisions. Most complaints have been filed (and thus most decisions have been rendered) in the District of Columbia, but other courts are increasingly likely to encounter issues under this provision, particularly with regard to efforts to enforce judgments against the property and assets of state sponsors of terrorism. The terrorism exception was originally adopted as 28 U.S.C. § 1605(a)(7).

In response to various problems encountered by plaintiffs in the course of their litigation under this earlier provision, Congress replaced it in 2008 with an expanded exception, codified at 28 U.S.C. § 1605A.233 Cases have proliferated against Iran and Cuba, but over time against Libya, Iraq, North Korea, Sudan, and Syria as well. A substantial body of interpretive decisional law has already emerged under the new statute.234 This Addendum provides an overview of the background and purpose of the FSIA’s “terrorism exception” (section A), describes the current statutory provision (section B), and then discusses in somewhat greater detail the main elements of a claim under the provision (section C). Section D summarizes the particular issues related to enforcement of judgments against state sponsors of terrorism under § 1605A.

This entry builds upon and occasionally refers to, but endeavors not to repeat, the analysis offered in the rest of this guide. Litigation under the state-sponsored terrorism exception to the FSIA must be distinguished from suits against individuals and nonstate entities under the separate Anti-Terrorism Act (ATA), enacted in 1992. That statute provides that [a]ny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. On occasion, a particular terrorist incident may give rise to claims under both statutes.

Background and Purpose

Although victims’ groups had long advocated for a “terrorist” exception to foreign sovereign immunity, no such provision was included in the FSIA when it was originally enacted in 1976.

The Current Exception

Note: for more information about the FSIA and State Supporters of Terrorism exception, see the Terrorism Exception to Jurisdictional Immunity.

By its terms, § 1605A(c) provides a private right of action under federal law for money damages against designated foreign state sponsors of terrorism (including their political subdivisions and agencies or instrumentalities). The action may be for personal injury or death resulting from certain listed acts caused by the designated state sponsor or its officials, employees, or agents. Claimed damages may include economic damages, solatium, pain and suffering, and punitive damages.

Exclusivity

The generally accepted rule has been that, if the conduct in question constitutes “terrorism” within the scope of this exception, then none of the FSIA’s other exceptions may be applied.

Statute of limitations

Under § 1605A, there is a ten-year limitations period.

Default

In the majority of state-sponsored terrorism cases brought under § 1605A, neither the foreign state nor the individuals named as defendants appear or answer.

Discovery

Since default is the norm, discovery requests directed to the defendants do not typically pose problems in terrorism cases.

Main Elements of a Claim Under § 1605A

The following sections consider the main requirements of a claim brought under § 1605A. 1. Nationality of claimant or victim Under § 1605A(c), a claim may be pursued by four categories of individuals:

a national of the United States;
a member of the U.S. armed forces;
an employee of the U.S. government or of an individual performing a contract awarded by the U.S. government, acting within the scope of the employee’s employment; or
a legal representative of such a person.

Nationality of claimant or victim

At the time of (or as a result of) the act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources in question, the Secretary of State must have formally designated the foreign state as a government that has “repeatedly provided support for acts of international terrorism”.

Designated state sponsor of terrorism

Scope of authority

The private right of action provided by § 1605A recognizes that both the foreign state itself and any official, employee, or agent of that state can be held liable for personal injury or death resulting from any of the enumerated acts specified by the statute.

Listed acts

Under § 1605A(a)(1), the plaintiff must sufficiently allege that one of the following specified acts has been committed: “an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.” Listed acts include:

Torture
Extrajudicial killing
Aircraft sabotage
Hostage taking
Material support or resources

Causation

Causation is a jurisdictional requirement of the FSIA’s statesponsored terrorism provisions. Like its predecessor, § 1605A(a)(1) requires that the injury or death have been “caused by” one of the listed acts (and that such act was “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”).

Personal injury or death

Section 1605A(a)(1) does not specifically state the elements required for establishing “personal injury or death.” In interpreting the provisions, courts have looked to “general principles of tort law,” including the Restatement (Second) of Torts, as a “proxy for state common law.”

Opportunity to arbitrate

When the act or acts in question took place in the foreign state’s territory, the government in question must be given an opportunity to arbitrate the claim before its immunity can be removed under section 1605A.

Damages

The terrorism exception applies only to suits seeking money damages. Although FSIA § 1606 generally prohibits the award or recovery of punitive or noncompensatory damages against foreign states (but not their agencies or instrumentalities), § 1605A(c)(4) explicitly provides that money damages against foreign states as well as their officials, employees, and agents may include “economic damages, solatium, pain and suffering, and punitive damages.”

Application of § § 1605A to prior suits

New cases filed after the effective date of the new statute (January 28, 2008) must be considered on that basis alone. However, § 1605A was intended to have at least some retroactive effect.

Challenges to the legality of the exception

Defendants have repeatedly argued that the terrorism exception is unconstitutional, and courts have repeatedly rejected the claims.

Execution of Judgments in § 1605A Cases

Many of the judgments rendered under the terrorism exception have been substantial, sometimes exceeding $100 million. Most have been default judgments. And most have remained unsatisfied.

Generally

Under the FSIA, the property of a foreign state (including its agencies and instrumentalities) in the United States is presumptively immune, and the lack (or waiver) of immunity of the state from jurisdiction under the FSIA does not guarantee that a resulting judgment will be enforceable against the foreign state’s assets.

Protected properties

Section 1610 sets out the rules regarding attachment and execution, and they are discussed in detail in this section. However, additional limitations apply. Specifically, § 1611 exempts certain categories of property from those rules.

Section

When the FSIA was amended in 1996 to include the statesponsored terrorism exception to jurisdiction in § 1605(a)(7), a parallel provision was included regarding enforcement of judgments rendered under that section.

TRIA

Despite these 1996 amendments, most plaintiffs with judgments against state sponsors remained unable to obtain satisfaction because, then as now, (a) the states in question typically do not engage in commercial activity in the United States and (b) any assets they might have in the United States are typically seized or frozen as a result of government sanctions.

Post-TRIA legislation

When the FSIA was further amended in 2008 to replace § 1605(a)(7) with § 1605A, the additional modifications were made with respect to judgments.

Blocked assets

In practice, the complicated interplay between TRIA and amended § 1610 has given rise to a number of sharply litigated issues. One set of issues involves the particular assets to which the provisions apply.

Extent of property interest

One sharply contested set of questions concerns the extent of the terrorist party’s interest in the blocked assets required for attachment and the appropriate choice of law in making this determination.

Blocked Iranian assets

The current state of the law has continued to frustrate judgment creditors, especially those who have been the victims of Iranian-sponsored terrorist acts.

State Supporters of Terrorism