Private civil lawsuits filed by victims of international terrorism in U.S. courts, while intended to secure justice and compensation, often create significant tension with the conduct of U.S. foreign policy.
The Rise of Private Litigation
For years, with legislative encouragement from Congress and active participation from the plaintiff’s bar, victims and survivors of terrorism have sought to hold various foreign entities accountable in U.S. courts. These suits typically allege complicity, sometimes through indirect or convoluted connections, with the perpetrators of international terrorism.
A prominent example involves litigation against the Bank of China concerning an attack orchestrated by Palestinian Islamic Jihad. This case highlights a central concern: that private civil suits may inadvertently undermine efforts to combat global terror. When the U.S. and Israel reportedly engaged in negotiations with the Chinese institution to develop methods for disrupting illicit money transfers, the existence of privately directed damages litigation tended to deter cooperation and perpetuate mistrust.
Conflict with Diplomatic Interests
Such litigation often proves difficult to suspend, even when it is deemed to be actively harming diplomatic efforts. The core conflict arises because these private judgments are frequently viewed as running counter to American foreign policy interests.
Even in instances where lawsuits against more clearly defined bad actors succeed, the U.S. government has, on multiple occasions, blocked the enforcement of financial judgments awarded to American plaintiffs against foreign governments, such as Iran. This action is necessitated by the perception that executing these judgments would conflict with broader U.S. foreign policy objectives. [James Loeffler and Moria Paz, Slate]
Historical Context and Scope
The issue of private terrorism litigation is not new, with several notable precedents setting the stage for current dilemmas:
- Lawsuits were previously filed against the U.S. government in connection with the Kenya and Tanzania embassy bombings.
- The discussion surrounding the appropriateness and efficacy of these suits has a history, including Ted Frank’s 2007 essay on the subject.
- A pattern of suing nearly “everybody except the guys who did it” has been observed in some instances.
- Cases have involved issues like forum-shopping in relation to an Egyptian hotel and allegations of gem smuggling in Tanzania.
- Extensive litigation has also followed the 9/11 attacks.
Collectively, these cases illustrate the complex legal landscape where the pursuit of private justice intersects, and sometimes clashes, with the strategic interests and diplomatic needs of the United States government.
