Justice Forsaken: How the Federal Government Fails the American Victims of Iranian and Palestinian Terrorism
Statement of Richard D. Heideman Heideman Nudelman & Kalik, PC Counsel to American Victims of Terrorism On
“The Confluence of Responsibilities of the US Government to Victims of Terrorism”
Delivered before the Senate Judiciary Committee ‐ Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts
Wednesday, November 4, 2015, 2:00 PM Hart Senate Office Building 216
THE CONFLUENCE OF RESPONSIBILITIES OF THE UNITED STATES GOVERNMENT TO AMERICAN VICTIMS OF TERROR
The confluence of the work, roles and responsibilities of the legislative, executive and judiciary branches of the US government provides the most comprehensive juridical system in the world designed to protect victims of terror. Congress has enacted legislation that provides access to US courts for American victims of acts of international terrorism, allowing victims to hold both state and organizational sponsors of terror legally accountable.
ISLAMIC REPUBLIC OF IRAN; WORST STATE SPONSOR OF TERROR IN THE WORLD
The Islamic Republic of Iran is the worst sponsor of terror in the world. It has been included on the State Department’s list of State Sponsors of Terror since 1984. [See Exhibit I] Numerous federal judges have held trials, reviewed evidence and issued extensive opinions finding the Islamic Republic of Iran to be liable for sponsoring acts of terror against Americans abroad. Notably, in such cases as those brought on behalf of the Marine Barracks bombing in Beirut in 1983, former Chief Judge of the United States District Court for the District of Columbia, Royce Lamberth held that Iran was not only liable for the Iranian – Hezbollah bombing of the barracks housing the US Peacekeeping Force in Lebanon, but that Iran’s conduct was so outrageous that he assessed one billion dollars in punitive damages against Iran. Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 90 (D.D.C. 2010).
I am honored and privileged to represent some of the family members of the Marines killed in that case, which adopted the earlier liability findings in the landmark action of Peterson v Islamic Republic of Iran. In the Valore case, during my argument in support of the punitive damages award, I reminded the court of the opinion which Judge Lamberth himself rendered in the Peterson action:
No order from this Court will restore any of the 241 lives that were stolen on October 23, 1983. Nor is this Court able to heal the pain that has become a permanent part of the lives of their mothers and fathers, their spouses and siblings, and their sons and daughters. But the Court can take steps that will punish the men who carried out this unspeakable attack, and in so doing, try to achieve some small measure of justice for its survivors, and for the family members of the 241Americans who never came home.
Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46, 64-65 (D.D.C. 2003)
While governments generally are immune from prosecution in US courts, enjoying immunity under the Foreign Sovereign Immunities Act (“FSIA”), an exception exists for American nationals to pursue actions in United States federal court against governments who are on the State Department List of State Sponsors of Terror and who commit or sponsor or provide material support for acts of international terror committed against Americans abroad. In addition, American nationals can bring actions under the Anti-Terrorism Act against entities other than governments who commit, sponsor and support terror.28 U.S.C. §1605A, 28 U.S.C. §2331 et seq.].
I believe there are more than 50 judgments that have been entered against the Islamic Republic of Iran for sponsoring or committing acts of terror against Americans. Those judgments are believed to total $43 billion dollars, including punitive damage awards. They range from the Marine Barracks bombing to attacks upon US embassies and installations to sponsorship of terror organizations and acts of terror committed against innocent civilians in the State of Israel.
In one of those cases, Estate of Yael Botvin v Islamic Republic of Iran, where our firm is privileged to represent the family of a 14 year old innocent student, Yael Botvin z’l, who was on Jerusalem’s Ben Yehuda mall buying school supplies when she was murdered in a suicide bombing attack. In that case, the Court found that the Islamic Republic of Iran was liable for this act of terror committed in 1997, during what is referred to as the Intifada, by HAMAS, the Islamic Resistance Movement which operates throughout Israel, wreaking havoc and destroying lives and the families of victims.
As the Court noted, “[o]n the afternoon of September 4, 1997, three Hamas suicide bombers with cases of powerful explosive bombs arrived at the crowded Ben Yehuda Street pedestrian mall in downtown Jerusalem. These bombs contained ‘nails, screws, pieces of glass, and chemical poisons to cause maximum pain, suffering, and death.’ The bombs were intended to be detonated in intervals designed to inflict maximum causalities on both civilians and responding rescue workers. The explosion wounded nearly 200 civilians and killed five, including fourteen-year-old Yael Botvin. Iran provided financial, technical and other material support to Hamas and other terrorist groups, including Hizbollah and the Palestinian Islamic Jihad, at the time of this bombing.”
Estate of Yael Botvin v. Islamic Republic of Iran, 873 F. Supp. 2d 232, 238 (D.D.C. 2012)(internal citations omitted)
In another terrorist attack where our law firm represents the family of a tragically murdered victim, Roth v Islamic Republic of Iran, the Court found that the Islamic Republic of Iran is liable for having sponsored HAMAS which committed the Sbarro Pizza Bombing in central Jerusalem. During that attack Malkie Roth, a 14 year old student was killed along with many others who were killed or maimed. This took place in 2001, during the height of the raging Second Intifada of Palestinian terror.
I cite these specific cases to you as examples of acts of terror committed by the Islamic Republic of Iran and their proxies, including, but not limited to, Hezbollah, HAMAS and Palestinian Islamic Jihad.
The sponsorship of terror takes the form of training, housing, travel, weapons, funding and assistance, all of which are essential tools for terror organizations and their terrorist participants to be able to plan, move, execute, strike, kill and maim.
The courts have clearly labeled the Islamic Republic of Iran as the world’s worst sponsor of terror, but that is not enough. Who listens? The victims listen to the precious words of the court, because they are able to have not only their day in court but an opportunity to speak out themselves as they seek justice, no matter how many decades it may take. The lawyers listen as they often cooperatively work together to share in the attempt to attach and collect against assets of these State sponsors of terrorism that are able to be located within the United States. The press listens as they pronounce to the court of public opinion the individual cases and tragedies endured by victims and their families. Congress listens, as evidenced by this hearing.
ROLE, RESPONSIBILITY AND ACTIONS OF THE US GOVERNMENT WITH REGARD TO VICTIMS OF TERROR
The executive branch of our government, however, only occasionally listens and often ignores the rights of the victims when it is viewed by the administration to interfere with US foreign policy. Different administrations have taken varying approaches in support of victims President Clinton ordered the release of frozen Iranian assets to US victims of Palestinian terror sponsored by Iran, notably, to the families of Alisa Flatow, Matthew Eisenfeld and Sara Duker, student victims of the Intifada; and to the family of US Navy service member Robert Stethem who we all remember being thrown off an airplane onto the tarmac. Those cases and others were all pursued in United States federal courts on behalf of families (mothers, fathers, sisters, brothers, spouses and children, each of whom are entitled to bring claims) who sued the Islamic Republic of Iran for its sponsorship of Palestinian terror organizations.
President George W. Bush, in dealing with Qaddafi and Libya, took affirmative steps to hold Libya accountable for numerous acts of terror, including the Pan Am 103 bombing and two cases in which our firm serves as lead counsel: the EgyptAir Flight 648 hijacking and the Rome and Vienna coordinated airport attacks committed in 1985. In the EgyptAir case, Palestinian hijackers of the Abu Nidal Organization, a foreign terrorist organization, had a mid-air shootout with air marshals. After the plane landed in Malta, the Abu Nidal terrorists separated the passengers by country, putting the Americans and Israelis in first class. When the Maltese refused to refuel the aircraft, the terrorists every fifteen minutes systematically shot first the two Israeli women and then the three Americans in the head and tossed them one by one from the plane onto the tarmac below. In entering into the Libya Claims Settlement Agreement with the Bush Administration, Libya agreed to pay $1.5 billion dollars to US victims of Libya terror, including the victims of the EgyptAir and Rome and Vienna cases. The money was paid essentially through the US Department of State to the US Treasury, and some was paid directly to certain victims and their families, commencing in 2008. Many of the victims, however, were required to submit claims to the US Department of Justice’s Foreign Claims Settlement Commission.
During the Obama administration, the Foreign Claims Settlement Commission has now taken seven years to “administer” those claims, some of which are still not yet adjudicated, extending the agony of victims and their families who are awaiting awards from the money which Libya deposited into the accounts of the United States Treasury in 2008, an unconscionable span of seven years. Moreover, the claims of some victims of Libyan terror have been administratively denied by the Foreign Claims Settlement Commission, leaving victims with little further recourse and contrary to the intent of the understandings between the victims and the US government.
Libya is a case study worthy of note. Although the Libyan regime ultimately fell, the Libya story with respect to Libya giving up its weapons of mass destruction is a great success, because it proves that the confluence of the power of the branches of the US government can indeed force a foreign country to change its ways. Libya turned over whatever capability it possessed to threaten or use weapons of mass destruction, and, equally important, agreed to cease the sponsorship of terror. As a result, both the United Nations and the United States, as well as other countries, agreed to lift sanctions against Libya and to restore its immunity from prosecution in US courts.
Unfortunately, that same tactic has not been employed by the Obama administration in dealing with the Islamic Republic of Iran. The recently negotiated nuclear deal with Iran – the Joint Comprehensive Plan of Action — has not only ignored Iran’s sponsorship of terror, and did not require the release of Americans held in Iranian prisons such as the Washington Post reporter Jason Rezaian but, moreover, is expected to release more than $100 billion dollars in assets frozen pursuant to UN, US, EU and other sanctions to the Iranians. The Administration did not take the necessary steps to insure that Iran is giving up its ability to produce weapons of mass destruction on a permanent basis while at the same time is rewarding Iran with sanctions relief.
By returning assets which were previously frozen under economic sanctions, experts have made it clear that those funds will be used to increase the ability and reality of Iran’s poisonous sponsorship of terror. Noted expert Dr. Matthew Levitt, Fromer-Wexler Fellow and Director of the Stein Program on Counterterrorism and Intelligence, Washington Institute for Near East Policy has recently opined that the JCPOA will further embolden Hezbollah, a foreign terrorist organization, in the region. As Dr. Levitt points out, Iran is the primary benefactor of Hezbollah and gives this militant group some $200 million a year in addition to weapons, training, intelligence, and logistical assistance. However, Levitt believes that over the past eighteen months, Iran had cut back its financial support to Hezbollah—a collateral benefit of the unprecedented international sanctions regime targeting Iran’s nuclear program, as well as the fall in oil prices.
By releasing funds to Iran, Iran will in turn be able to once again provide financial support to Hezbollah. And as Dr. Levitt aptly warns, a newly enriched Hezbollah would be more aggressive at home and abroad.
The cutback has mostly curtailed Hezbollah’s political, social, and military activities inside Lebanon. Its social-service institutions have cut costs, employees have received paychecks late or been laid off, and funding for civilian organizations, such as the group’s satellite television station, al-Manar, has been reduced. By contrast, Hezbollah’s Syria command, which has been a priority for Tehran given its commitment to defending Bashar al-Assad’s regime, has shown no sign of financial hardship.
If nuclear-related sanctions are lifted in whole or in part, an influx of Iranian money will enable Hezbollah to push back against Lebanese political and social movements that are uncomfortable with its intervention in Syria. Lebanon’s political crises, from its inability to select a president to its failure to collect garbage, is a result of this deep sectarian division. An influx of radicalized Sunnis from Syria could bring further instability to Lebanon.
Increased Iranian spending will also benefit Hezbollah’s regional and international operations. The group is no longer limited to jockeying for political power in Lebanon and fighting Israel. With more money, it could step up its aid to Shia militias in Iraq and Yemen in cooperation with Iran, sending small numbers of skilled trainers to bolster local forces and, in some cases, fight alongside them. In Iraq, Hezbollah is training and fighting with Shia militias. Though they are fighting on behalf of the government, their tactics exacerbate sectarian tensions. Its footprint in Yemen is small, but it could expand with additional resources. Hezbollah is already trying to find long-term support for these operations. In Iraq, for example, it is investing in commercial front organizations.
Finally, increased funding could help Hezbollah reconstitute its capabilities beyond the Middle East. The group has expanded its terrorist operations in countries as disparate as Cyprus, Peru, and Thailand.
See Expert Round-up, The Middle East After the Iran Deal, Council on Foreign Relations, http://www.cfr.org/middle-east-and-north-africa/middle-east-after-iran-nuclear- deal/p36963#expert_roundup_author_9217
To me, it is beyond comprehension that the Obama administration did not require, as a condition of the deal, both the release of American prisoners in Iran and a binding agreement – with consequences – that Iran would cease the sponsorship of terror.
This failure threatens Americans, both at home and abroad. This failure threatens the free world, at home and abroad. And, this failure emboldens terrorists who are part of Hezbollah, Hamas and Palestinian Islamic Jihad, all of whom today get their funding and munitions primarily from the Islamic Republic of Iran. This failure further emboldens Hezbollah and Hamas in their determination to attack the State of Israel. We cannot tolerate nor countenance this failure in US foreign policy.
Congress must act to fully hold the Islamic Republic of Iran legally accountable for their past, present and future threatened acts of terror. Congress should make as a condition of Iran enjoying any future benefits of the nuclear deal that it must cease the sponsorship of terror and must pay every penny of every Judgment already entered and those to be entered against Iran.
Congress should hold Iran and its leaders accountable, the same way it did against Libya and Qaddafi: no lifting of sanctions, no benefits, no enjoyment of good relations unless each and every victim of Iranian terror is not only compensated but given full justice against this state sponsor of terrorism.
In its annual Country Reports on Terrorism, the State Department has stated that “Iran remained the most active state sponsor of terrorism” and “Iran’s involvement in the planning of financial support of terrorist attacks throughout the Middle East, Europe, and Central Asia has had a direct impact on international efforts to promote peace, threatened economic stability in the Gulf, and undermined the growth of democracy.” See In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 36-37 (D.D.C. 2009) citing U.S. Dep’t of State, Country Reports on Terrorism 2008, at 182, available at http://www.state.gov/documents/organization/122599.pdf.
[See Exhibit II, State Department Country Reports on Terrorism, section on Iran].
In 2013, I was asked to write about the Islamic Republic of Iran’s sponsorship of terror by the Louis D. Brandeis Center for Human Rights Under law. At that time, I wrote,
Today, it is most critical that world leaders not only speak up and make their voices heard; they must take strong action against Iran designed to hold Iran fully accountable for its terrorist conduct. Iran, a state which takes a callous view of human life should not and cannot threaten our global community or the very foundations upon which our free, open and dynamic society is based.
[See Exhibit III]
These words are even more true today, as victim’s rights are human rights which must be protected by the United States government.
This Congress must take action. It must act on behalf of American victims of Iranian terror to hold the Islamic Republic of Iran fully accountable. It must act on behalf of American victims of Palestinian terror to hold the Palestine Liberation Organization and the Palestinian Authority fully accountable. It must act to hold every terror organization and sponsor fully accountable. Congress must demand that the administration demonstrate a renewed commitment to the principle that Americans are entitled to protection, both at home and abroad, from against those who threaten and attack us. Victims of terror are entitled to not only seek – but to obtain – justice and deserve the full protection of each branch of the US government: the Congress, the Courts and the Administration.
It is indeed the confluence of our ideals, our commitment to justice and our respect for the dignity of every man, woman and child, that requires that we do better than we have done in the past. We cannot permit any sponsor of terror to get away with murder.
This Congress, and this Administration, are duty bound by existing law to protect every American; to prevent acts of terror; to punish the perpetrators; and to not be a bystander when any government or terror organization threatens America and our allies.
We are not, however, only engaged in a war of words with Iran and with Palestinian terrorists. We are engaged in a struggle for freedom, democracy and the right of all to enjoy their lives free of tyranny and threat of murder.
In holding Iran liable for its acts and sponsorship of terror, however, this must be not only about paying every judgment and every claim; it must also be about stopping the Islamic Republic of Iran from using its proxies, including Palestinian terrorists, in operating with impunity. Iran applauds Palestinian terrorists; encourages Palestinian terrorists; and threatens the people and very existence of the State of Israel, the most important and most democratic ally of the United States in the entire Middle East.
The foreign policy of the United States must follow the law, which this Congress has enacted, to hold sponsors of terror legally accountable.
That includes the Islamic Republic of Iran and both the Palestine Liberation Organization and the Palestinian Authority. They must not be permitted to evade responsibility or the jurisdiction of our courts.
As it is written in Deuteronomy 16:20 “Justice, Justice Shalt Thou Pursue”.
Senators we thank you for listening. As importantly, we will all thank you for acting.