Counterterrorism Blog

On June 18, I testified before the Canadian Senate Committee on Legal and Constitutional Affairs in Ottawa about a proposed bill to deter terrorism by providing a civil right of action against perpetrators and sponsors of terrorism. Segments of that testimony follow, and you can download the entire written testimony and my oral statement before the committee:

This important legislation will significantly enhance current counter-terrorism measures now being implemented and enforced by the Government of Canada. It is a major step forward in holding the perpetuators of terrorism and those that knowingly provide them material support, including state actors, accountable in Canada and to the victims of terrorism. This legislation will also serve further to deter those considering providing support to terrorist groups. And, it gives long overdue recognition to the rights of victims of terrorism by affording them, for the first time, real legal recourse to hold those that employ and support terrorism responsible...

(T)he evidence gathered in material support for terrorism cases often does not lend itself to effective courtroom use. Intelligence information is often highly classified, gathered through sensitive sources and methods, vulnerable to exclusion under hearsay and related rules of evidence, or otherwise unsuitable for use by the government in a court of law. This represents a major drawback for prosecutors charged with connecting the dots along the complex route such transactions follow, and at the same time demonstrating the subjective knowledge or intent of those initiating the transaction. And linking fungible funding to specific of acts of terrorist violence can be an overwhelming task.

Experience has shown that civil tort or tort-like litigation, even when the criminal justice system has failed, can still provide effective accountability and redress in criminal activity related cases. And the judgments obtained in such cases can also be so overwhelming as to bankrupt or otherwise put out of business those held accountable, or to convince those engaged to cease such nefarious conduct. Even those who fear not criminal prosecution, for the reasons noted above, still may well be deterred in the face of possible substantial civil, and very public, litigation against them...

Some have suggested that the legislation before you should be amended to limit the proposed exemption from sovereign immunity for terrorism-related cases, to those involving countries specifically designated by the Canadian Government as terrorism supporting countries. Those promoting such limitations cite, as an example the approach initially adopted by the United States when it amended the Foreign Sovereign Immunities Act (FSIA) in 1996. I understand that the Canadian system of designation is quite different from that in the United States. Nevertheless, based upon the US experience, and the drawbacks encountered, I think such a limitation here would be a mistake.

The United States, back in 1996 when it amended the Foreign Sovereign Immunities Act (FISA), chose to carve out a terrorism exception based, in part, on the President’s ability to designate under executive order, terrorism supporting countries as well as specific terrorist entities. But, that legislation failed to adequately evaluate the difficulties, and international economic and political constraints, that are, indeed, associated with officially designating additional countries that support terrorism. The result is a truncated list of terrorism supporting countries which now includes only Iran, North Korea, Syria, Sudan and Cuba. But the list of countries providing material support to various terrorist organizations is considerably broader. Consider, for example, Yemen’s or Saudi Arabia’s open support for, and funding of, Hamas, including the provision of financial stipends for the families of suicide bombers; or Pakistan’s aid to terrorist groups fighting India in Kashmir, or Hugo Chavez’s support for the FARC. While international diplomatic and political realities make any designations highly unrealistic, that is no reason to give these countries’ and their support for terrorist groups a free ride, or to bar the victims of such terrorism from holding them accountable. And United States courts have been struggling with this dilemma ever since.

I believe that equity and justice require, and international law allows, US and Canadian courts to entertain appropriate lawsuits seeking to hold state sponsors of terrorism accountable to the victims of terrorism for the damage their wrought.