The Superpower and Its Courts

By Daveed Gartenstein-Ross

In December, the Washington Post reported that the U.S. government, as part of an agreement it reached with Libyan leader Muammar Gaddafi, has terminated $6 billion in judgments against Libya. Though it has been called "the forgotten flight" because most attention focused on Pan Am Flight 103, the explosion of Union des Transports Aériens (UTA) Flight 772 back in 1989 killed 170 people from 17 different countries. The family members of American victims seemingly gained some closure in January 2008 when U.S. district court judge Henry H. Kennedy awarded 44 relatives $6 billion in damages against Libya, so they were justifiably livid when the U.S. government nullified their judgments. Anne Carey, whose mother died on Flight 772, told the Post: "We fought this fight. We stood up to terrorists who took our loved ones and we did so in federal court." She added, "We felt we accomplished something. For it to be dismissed is beyond comprehension."

The government's actions have undoubtedly reopened old wounds, and make it seem that the vindication the families gained through a hard-fought court victory was ephemeral and ultimately illusory. Yet two questions must be asked in the wake of these dismissals. First, are such dismissals the inevitable result of litigation against state sponsors of terror? And if so, is the "terrorism exception" to the Foreign Sovereign Immunities Act, which permits such lawsuits in U.S. courts, a worthy piece of legislation? I published a policy briefing with FDD today that examines these questions. An excerpt:

Congress' two major goals in enacting [the terrorism exception] were to punish and deter state sponsors of terror, and to provide vindication and compensation to victims of terrorism and their families. In light of the government's recent dismissal of the Flight 772 victims' claims, the legislation does not seem to advance either goal.

The terrorism exception does not punish and deter state sponsors of terror because no state has paid an entered judgment. Though Gadaffi has agreed to turn over $1.5 billion that the U.S. government will distribute to family members of the victims of Libyan-sponsored terrorism, he would have paid compensation to normalize relations even in the absence of the terrorism exception. In 2004, for example, Libya agreed to pay France $170 million in compensation for the Flight 772 bombing as part of the process of reestablishing relations with France. Indeed, it seems that the reason Libya has paid attention to terrorism exception litigation--presenting a defense in court, while other countries sued under the exception have not--is because Gadaffi had already ceased his sponsorship of terror, and wanted to reestablish relations with the U.S. The countries that we really intend to deter, like Iran, do not display similar interest in the litigation against them.

Nor, in light of the recent dismissals, does the terrorism exception fulfill the goals of vindication and compensation. Vindication is supposed to be achieved by giving victims their "day in court," and by using the legal system to condemn the acts of terrorist states. But since no defendant state has paid a judgment, the terrorism exception fails to vindicate victims through the essential step of punishment. Worse, the Flight 772 families saw the judgments that they worked hard to obtain simply thrown away as the U.S. moved toward normalizing relations with Libya.

You can read the full policy briefing here.

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