Suits Against Terrorist States by Victims of Terrorism

In 1996 Congress amended the Foreign Sovereign Immunities Act (FSIA) to allow U.S. victims of terrorism to sue designated State sponsors of terrorism for their terrorist acts. The courts have handed down large judgments against the terrorist State defendants, generally in default, and successive Administrations have intervened to block the judicial attachment of frozen assets to satisfy judgments. After a court ruled that Congress never created a cause of action against terrorist States themselves, but only against their officials, employees, and agents, plaintiffs have based claims on state law. The limited availability of defendant States’ assets for satisfaction of judgments has made collection difficult. Congress passed a rider to the National Defense Authorization Act for FY2008 (H.R. 4986), to provide a federal cause of action against terrorist States and to facilitate enforcement of judgments, authorizing the President to waive the provision with respect to Iraq. Congress subsequently passed S. 3370 to exempt Libya from the FSIA provisions if it agrees to compensate victims with pending lawsuits.

Section 1083 of P.L. 110-181 is the latest in a series of actions Congress has taken over the last decade to assist plaintiffs in lawsuits against terrorist States. The 107th Congress enacted a measure in the Terrorism Risk Insurance Act of 2002 (“TRIA”) (P.L. 107-297) to allow the attachment of blocked assets of terrorist States to pay compensatory damages to victims. The Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA”) (P.L. 106-386) liquidated some frozen assets to pay claims and provided some U.S. funds to compensate those holding judgments against Iran at the time. Section 1083 seeks to make more assets available to execute terrorism judgments. It permits the attachment of assets belonging to separate agencies and instrumentalities of defendant States, permits plaintiffs to file notices of lis pendens with respect to property owned by defendant States or entities they control, and permits some plaintiffs to refile claims.

The Supreme Court has not directly addressed the FSIA terrorism exception, but in 2006 it remanded a decision based on the lower court’s assumption that Iran’s Ministry of Defense (MOD) is an “agency or instrumentality” of Iran rather than part of the government itself, and will decide in its upcoming term whether certain Iranian assets are available under the TRIA to judgment holders. The Court may also be asked to determine the effect of the waiver of § 1083 on pending cases against Iraq, which the Court of Appeals for the D.C. Circuit has permitted to go forward.

This report provides background on the doctrine of State immunity and the FSIA; details the evolution of the terrorist State exception and some of the resulting judicial decisions; describes legislative efforts to help claimants satisfy their judgments; summarizes the hostages’ suit against Iran and Congress’s efforts to intervene; summarizes the status of lawsuits against Iraq and Libya; and provides an overview of proposed legislation (S. 3370, H.R. 3346, S. 1944, H.R. 394, H.R. 5167, and H.R. 2764). Appendix A provides a list of cases, including those covered by TRIA § 2002 and the amount of compensation paid. Appendix B lists the assets of each terrorist State currently blocked by the United States and the total amount owed by each for terrorism judgments. The report will be updated as events warrant.