Terrorism Claim in the United States

FISA: 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.

Plaintiffs may include family members as well as those who were directly harmed by the acts in question. One district court has distinguished between victims (defined as “those who suffered injury or died as a result of the attack”) and claimants (defined as “those whose claims arise out of those injuries or deaths but who might not be victims themselves”). Under this approach, victims may include those who were killed or physically or emotionally injured, as well as members of a victim’s immediate family who suffered from intentional infliction of emotional distress. Regardless of whether the plaintiff is a victim or a claimant, the standing requirements must be satisfied. Most commonly, that means that either the claimant or the victim of the terrorist attack must have been a U.S. citizen at the time of the attack. In Acosta v. Islamic Republic of Iran, for example, the claims arose from the 1990 assassination of Israeli Rabbi Meir Kahane in New York City. Because Rabbi Kahane was not a U.S. citizen, claims on his behalf fell outside the statute, but claims for severe mental anguish of his wife and family, who were citizens, were allowed to proceed. Several courts have rejected claims by individuals who were not “immediate family members” at the time of the attack in question.

As one court stated, “The very nature of a claim for solatium or intentional infliction of emotional distress necessitates a relationship between the victim and the claimant at the time of the attack. Intentional infliction of emotional distress requires an element of shock. If the definition of emotional distress were expanded to include claimants who were not immediate family members at the time of the attack, the potential number of claimants would be unidentifiable, changing with every new marriage or new child.269 Non-citizens and non-nationals can satisfy this requirement only if, at the relevant time, they were either members of the U.S. armed forces or “otherwise an employee of the Government of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee’s employment.”

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” pursuant to § 6(j) of the Export Administration Act of 1979, § 620A of the Foreign Assistance Act of 1961, § 40 of the Arms Export Control Act, or any other relevant provision of law.273 The list of designated state sponsors of terrorism is published on April 30 of each year. If the foreign state is not on the list at the time of the act or as a result of the act, the terrorism exception does not apply.

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. The acts must have been committed by the official, employee, or agent “while acting within the scope of his or her office, employment or agency.” The statute expressly makes the foreign state “vicariously liable for the acts of its officials, employees, or agents.”

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”). Both the D.C. and Fourth Circuits have rejected a “but for” interpretation of the “caused by” language found in both § 1605(a)(7) and § 1605A in favor of “proximate cause.” In Kilburn v. Socialist People’s Libyan Arab Jamahiriya, the D.C. Circuit distinguished the issue of jurisdictional causation under the state-sponsored terrorism exception from the proof necessary to prevail on a substantive cause of action.308 With regard to the first issue, which may arise on a motion to dismiss, the court of appeals said that proximate cause exists so long as there is “some reasonable connection between the act or omission of the defendant and the damages which the plaintiff has suffered.”

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.” Courts accordingly describe the harm to plaintiffs as constituting such torts as assault, battery, and intentional infliction of emotional distress.

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.320 In effect, the arbitration provision operates as a type of “exhaustion of remedies” requirement, giving the foreign state an arbitration alternative to litigation in U.S. courts. To date, no state sponsor of terrorism has agreed to such arbitration. Nonetheless, the statutory requirement must be satisfied.

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.” The U.S. District Court for the District of Columbia has adopted a standardized approach for calculating various categories of damages in state-sponsored terrorism cases.

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. The specific provisions are complicated.330 If a party had filed a claim, but did not obtain relief under the previous statute (§ 1605(a)(7)), the party could claim the benefits of new § 1605A by filing a motion to convert its pending case to a new action under § 1605A. These have been called “prior actions.” The deadline for filing them was 60 days after the effective date of the statute, that is, March 28, 2008.

Challenges to the legality of the exception

Defendants have repeatedly argued that the terrorism exception is unconstitutional, and courts have repeatedly rejected the claims. In Wyatt v. Syrian Arab Republic, for example, the court denied the defendant’s claim that the exception “‘exposes’ the final judgments of Article III courts to potential rescission by the president and Congress, thereby violating the separation of powers between the judicial and political branches.”

Main Elements of a Claim Under FISA § 1605A: Listed acts

They include the following:

Torture

For purposes of § 1605A, “torture” has the meaning given to that term in section 3 of the Torture Victim Protection Act of 1991: Torture means any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind.

Extrajudicial killing

The term “extrajudicial killing” also has the meaning given in the Torture Victim Protection Act, namely, “a deliberate killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” An assassination qualifies.

Aircraft sabotage

The statute defines “aircraft sabotage” by reference to Article 1 of the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, commonly referred to as the Montreal Convention. d. Hostage taking The statute adopts the definition of “hostage taking” used in Article 1 of the International Convention Against the Taking of Hostages, according to which hostage taking occurs when a person “seizes or detains and threatens to kill, to injure or to continue to detain another person . . . in order to compel a third party. . . to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage. . . .”

Material support or resources

This statutory element incorporates the broad meaning given to the term “material support or resources” in the Anti-Terrorism Act, which lists various types of support, including “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel . . ., and transportation, except medicine or religious materials.”

Terrorism Claim