Release date: Feb. 4, 2004
As a former Iranian intelligence officer was providing testimony in a courtroom in Germany detailing operational ties between the September 11 hijackers and the government of Iran, lawyers from the U.S. departments of State and Justice and appeals-court judges in Washington were working hard to overturn a law that has allowed victims of terrorism to sue foreign governments for sponsoring terrorist crimes that have killed Americans.
The measure, known as the "Flatow amendment," was signed into law by President Bill Clinton in October 2000. Terrorism experts believe it has had a sobering effect on terrorist sponsors, including Iran and Libya, because it has made them financially accountable for the crimes of their proxies by awarding damages to victims from frozen assets held in the United States.
The simple message of the Flatow amendment is this: If you direct terrorist groups to kill Americans, you will pay. Damage awards to victims from Iranian government assets in the United States in some 50-odd cases now top $3 billion.
Among those victims have been U.S. hostages held in Lebanon, the families of U.S. citizens killed by Iranian government proxies in suicide bombings in Israel and the Palestinian territories, and the families of the 241 U.S. Marines who were killed when an Iranian government agent rammed a truck full of explosives into their barracks outside of the international airport in Beirut on Oct. 23, 1983 [see "Invitation to September 11," Jan. 6-19].
Now the U.S. government, apparently without the consent or knowledge of the Bush White House, is about to engage in what observers call "an act of unilateral disarmament" that will comfort state sponsors of terror, especially Iran.
"We always knew the State Department was against these lawsuits and tried to scuttle them from day one," a representative of a group of victims' families tells Insight. "At every step of the way, they intervened - whether to block efforts to discover where frozen Iranian government assets were held, or how we could get them released once we found them on our own."
But in the opinion of congressional sources, the attorneys for the victims and the family members themselves, the decision handed down by Judge Howard Edwards of the U.S. Court of Appeals for the District of Columbia on Jan. 16 is an act of judicial activism that violates the will of Congress and delivers an overwhelming victory to terrorist states. "By vacating the Flatow amendment pure and simple, the U.S. government is sending a crystal-clear message to the terrorists: Go right ahead," said one attorney who has followed these cases for several years.
Pleading the case to repeal the law was Peter D. Keisler, an assistant attorney general in the Bush administration. He was assisted by U.S. Attorney for the District of Columbia Roscoe C. Howard Jr. and Mark A. Clodfelter, a legal adviser to the secretary of state.
"We ran this up the flagpole and went through the whole interagency process before sending our recommendation up to the Solicitor General's Office," an official involved in the litigation tells Insight. "The solicitor general approved our approach and set out the guidelines for our appeal."
If true, that would be astonishing. Barbara Olson, the wife of U.S. Solicitor General Ted Olson, was among those killed during the 9/11 attacks when American Airlines Flight 77 was crashed into the Pentagon by al-Qaeda hijackers. As solicitor general, Ted Olson vigorously has defended every aspect of the U.S. war on terror, including the USA PATRIOT Act and the government's right to detain illegal combatants for indefinite periods without access to counsel. When pressed about who had authorized their appeal, government attorneys interviewed by Insight declined to respond.
Lawyers from the State and Justice departments argued that the law crafted by Congress, and vetted by their own attorneys at the time, allowed victims of terrorism to sue in U.S. courts but not to seek damages because the language provided "no private cause of action against foreign governments." In response to questions from Insight, they insisted that the distinction was not just "splitting legal hairs." But attorneys who helped write the legislation contested that view and revealed that State Department attorneys made last-minute "technical changes" to the bill that required victims of terrorism to sue "officials, employees and agents" of a foreign state, rather than the government itself.
"We had no objection to that change during the conference," one of the attorneys told Insight, "because they are one and the same thing. But what they are saying now is that Congress is a bunch of incompetents who don't know how to draft legislation. We'll be back in a year's time with a much more muscular bill."
These are not lawsuits like any other. They involve U.S. foreign policy, national security and the rights of victims of murderous crimes to seek redress under the law.
What makes the decision by Judge Edwards and the active intervention of the State and Justice department lawyers particularly odious, lawyers and family members of victims tell Insight, is the potential cost in human lives it could entail. As President Ronald Reagan was fond of saying, weakness or the perception of weakness invites attack.
The shabbiest treatment of all was reserved for the families of the 19 U.S. airmen and Air Force personnel who lost their lives when Iranian-backed Hezbollah terrorists drove a truck bomb into the Khobar Towers barracks in Dhahran, Saudi Arabia, in June 1996. After keeping them waiting two weeks for their day in court, Magistrate Judge Deborah A. Robinson sent some 100 family members back to their homes around the country in mid-December after she single-handedly attempted to block the testimony of former FBI Director Louis Freeh [see "Is Khobar Towers Testimony Being Silenced," posted Dec. 17, 2003].
Freeh already had testified in open session on Oct. 8, 2002, to the Joint Intelligence Committee about involvement of the Iranian government in the Khobar Towers bombing and told Insight when he first appeared in Robinson's courtroom on Dec. 2, 2003, that he planned to give the same testimony. But Robinson kept disappearing from her own courtroom for brief, unexplained recesses. When she returned, she read out long lists of questions, apparently dictated to her by others, that raised objections to Freeh's testimony and to every other witness the victims' attorneys tried to call. A longtime observer of the court called Robinson's courtroom behavior "disingenuous" and "out of line" and "in violation of federal rules of evidence."
To family members, Freeh had become a hero. "He was the only man in Washington during this whole thing who gave a damn," said Katherine Adams, mother of U.S. Air Force Capt. Christopher Adams, a pilot who had been taking another officer's tour of duty in Saudi Arabia so he could stay home with his wife while she was having a baby. "He was the only man who kept his word to the families, who cared, who met with us. [President] Clinton never did anything, except to show up for a photo op," Katherine Adams says.
When Robinson finally allowed the former FBI director to testify to an empty courtroom on Dec. 18, Freeh got straight to the point. "My own conclusion was that the [Khobar Towers] attack was planned, funded and sponsored by the senior leadership of the government of Iran," he said. Freeh's breathtaking conclusion, and the hard evidence of the Iranian government's role in the attack, is widely seen as far more compelling than the evidence used by the Bush administration to justify the war in Iraq. Making all evidence public could increase pressure on the administration to move militarily against Iran, a step most observers agree the administration would prefer to avoid.
Robinson also took the unprecedented step in a terrorism case of disqualifying the most qualified nongovernmental witness on Iranian government funding of terrorism, Patrick Clawson of the Washington Institute of Near East Policy, in a written order handed down Jan. 27. Clawson has testified in more than a half-dozen lawsuits against the government of Iran, providing hard data culled from Iranian government reports on state budgets allocated to international terrorism. Robinson ordered that his testimony be "stricken in its entirety" because Clawson would not reveal all the sources for his expert opinion on Iranian government sponsorship of terror. Clawson was unable to attend one hearing, an affidavit shows, because he was scheduled for all-day briefings at CIA headquarters in McLean, Va.
Sources familiar with the U.S. government investigations tell Insight that Iran "supplied the explosives" for the 1998 al-Qaeda bombings of U.S. embassies in Africa that killed more than 200 persons, and designated top terrorist operative Imad Mugniyeh as their liaison to Osama bin Laden's groups.
U.S. intelligence agencies consistently have argued that Iran could "not possibly" have a connection to al-Qaeda or to Sunni Muslim terrorist networks because Sunnis and Shias "do not talk to one another." And yet, a handful of intelligence analysts resisted this consensus view and compiled "B-Team" reports on al-Qaeda/Iran contacts for Deputy Secretary of Defense Paul Wolfowitz and Undersecretary of Defense Doug Feith. After an Oct. 26, 2001, briefing, Wolfowitz expressed astonishment that this information had been kept from him, and he asked to be given more information as it became available. Instead, the Defense Intelligence Agency analyst who compiled the report, Kai Fallis, was fired by his superiors.
"What has been done is incredibly hypocritical," says Stephen Perlis, a lawyer involved in a dozen similar cases, including the original Flatow case. "They used the Flatow amendment to facilitate rapprochement with Libya by resolving the Pan Am 103 case, but now they want to destroy it when it applies to Iran."
As the war on terror progresses, the Bush administration is seeking to put pressure on hard-line clerics in Iran, deter their use of terror, stop weapons of mass destruction and encourage pro-democracy forces - at least, that is what the president says. But the message sent by the repeal of the Flatow amendment, and by the refusal of the State Department to back up the president's promise to support the pro-democracy movement in Iran, suggests a policy process the president does not control, say former National Security Council officials.
Kenneth R. Timmerman is a senior writer for Insight magazine.
For more on this story, read "Defector Points Finger at Iran in September 11 Plot."
Kenneth R. Timmerman is a senior writer for Insight magazine.
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