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After entering default judgments against Afghanistan, the Taliban, Osama bin Laden, Iraq and Saddam Hussein" U.S. District Court for the Southern District of New York awards damages to victims of September 11, 2001, terrorist attacks based on "evidence satisfactory to the court".

The following district court case brought by the estate of victims of the terrorist attacks of September 11, 2001, raises several issues of first impression.

On November 14, 2001, Raymond Smith, as administrator of the estate of his brother George Eric Smith, sued the Islamic Emirate of Afghanistan, the Taliban, al Qaeda and Osama bin Laden in New York federal court. It sought damages for George's death on September 11, 2001. The Court later consolidated the case with the action brought by the estate of Timothy Soulas.

The plaintiffs served the Taliban and Afghanistan through personal service on Ambassador Abdul Salaam Zaeef. It notified the other defendants through publication in Afghani and Pakistani newspapers and several television stations, including Al Jazeera television network, BBC World, and Turkish CNN.

The Court allowed plaintiffs to amend the complaint on June 10, 2002, to add Saddam Hussein and the Republic of Iraq as defendants because of their alleged support of terrorist operations. Plaintiffs served the new defendants through the U.S. State Department's Director of Special Consular Services, who forwarded the summons to the Ministry of Foreign Affairs of the Republic of Iraq. Not surprisingly, none of the defendants appeared so the court entered default judgments against all defendants.

The Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. Section 1608(e), provides that "[n]o judgment by default shall be entered by a court of the United States or of a State against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court."

This standard is identical to the standard for defaults against the U.S. See Fed. R. Civ.P. 55(e). The district court, however, struggled to satisfy itself what "evidence satisfactory to the court" means.

"Although Congress intended a heavier burden than the generally accepted burden where the defendant has defaulted, it is not clear how much higher a burden it intended. ... On balance, the more appropriate burden to be met by the plaintiff is that stated in [Ungar v. Islamic Republic of Iran, 211 F.Supp 2d 91 (D.D.C. 2002)], namely 'a legally sufficient evidentiary basis for a reasonable jury to find for plaintiff.'" [Slip op. 13]

The district court then analyzes the liability of the Iraqi defendants. The plaintiffs based their claims against Iraq and Saddam Hussein on two statutes, the Antiterrorism Act of 1991 (ATA) (18 U.S.C. Section 2333), and on Section 1605(a)(7) of the Foreign Sovereign Immunities Act (FSIA).

Section 2333 of the ATA creates a cause of action for the 'estate, survivors, or heirs" of any U.S. national killed by an act of international terrorism. Section 2337, however, appears to foreclose an action against the Iraqi defendants because it provides that "[n]o action shall be maintained under section 2333 of this title against a ... foreign state, an agency of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority." Plaintiffs argued that this provision does not apply because 28 U.S.C. Section 1605(a)(7) has stripped Iraq and Saddam Hussein of the protection of Section 2337. The district court disagrees.

"Plaintiffs misses [sic] the point. The issue is not whether 2337 bars suit against Iraq and Saddam Hussein under FSIA Section 1605(a)(7) -- it certainly does not -- but whether plaintiffs have a cause of action under Section 2333, which permits treble damages for civil violations of the ATA. Section 2337 could not be clearer -- it prevents suits under Section 2333 against foreign states and officers wherein a plaintiff who prevails would be entitled to treble damages. See Cronin, 238 F.Supp. 2d at 231 n.2 ('The Problem with invoking [18 U.S.C. Section 2333(a) against a foreign state] is [that] 18 U.S.C. Section 2337 explicitly provides that 'no action shall be maintained under section 2333 of this title against ... a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority.''). Thus, plaintiffs cannot rely on Section 2333 against Iraq or Saddam Hussein." [Slip op. 18]

As for the FSIA, "Congress passed an amendment to section 1605(a)(7), entitled 'Civil Liability for Acts of State Sponsored Terrorism.' Pub.L. No. 104-208, Section 589, 110 Stat. 3009 (1996) (codified at 28 U.S.C. Section 1605(a)(7) note). This provision, commonly referred to as the 'Flatow Amendment,' ... provides that 'an official, employee, or agent of a foreign state designated as a state sponsor of terrorism ... while acting within the scope of his or her office, employment, or agency shall be liable to a United States national ... for personal injury or death caused by acts of that official, employee or agent for which the court [sic] of the United States may maintain jurisdiction under section 1605(a)(7) ...'" [Slip op. 19-20]

There is, however, an important limitation for such a cause of action if no liability would result if the acts were carried out within the United States. See 28 U.S.C. Section 1605 note. Also, the district court points out that the Flatow Amendment provides for a cause of action against a foreign state's officials, employees and agents, but not expressly against the foreign state itself.

"Several of these elements of a cause of action under the Flatow Amendment require little discussion. There can be no doubt that [the victims'] deaths resulted from aircraft sabotage, and, seemingly, hostage taking and extrajudicial killing as well ... The U.S. Supreme Court has held that a claim against a U.S. president for the conduct identical to that alleged against Saddam Hussein would be barred because of the president's absolute immunity from damages for conduct associated with the exercise of his official duties. ..."

"Thus, because the Flatow Amendment expressly bars an action 'if an official, employee, or agent of the United States, while acting within the scope of his or her office, employment, or agency would not be liable for such acts if carried out within the United States,' the plaintiffs cannot satisfy this element as against Saddam Hussein and so the claim against him must be dismissed." [Slip op. 25-27]

The district court therefore determines damages only against Al Qaeda and Iraq. The awards total almost $100 million.

Citation: Smith v. Islamic Emirate of Afghanistan, 2003 WL 21027170 (S.D.N.Y. May 7, 2003).
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Publication:International Law Update
Date:May 1, 2003
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