Release date: Feb. 4, 2004
Issue: 02/17/04
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As a former Iranian intelligence officer was providing testimonyin a courtroom in Germany detailing operational ties between theSeptember 11 hijackers and the government of Iran, lawyers from theU.S. departments of State and Justice and appeals-court judges inWashington were working hard to overturn a law that has allowedvictims of terrorism to sue foreign governments for sponsoringterrorist crimes that have killed Americans.
The measure, known as the "Flatow amendment," was signed into lawby President Bill Clinton in October 2000. Terrorism experts believeit has had a sobering effect on terrorist sponsors, including Iranand Libya, because it has made them financially accountable for thecrimes of their proxies by awarding damages to victims from frozenassets held in the United States.
The simple message of the Flatow amendment is this: If you directterrorist groups to kill Americans, you will pay. Damage awards tovictims from Iranian government assets in the United States in some50-odd cases now top $3 billion.
Among those victims have been U.S. hostages held in Lebanon, thefamilies of U.S. citizens killed by Iranian government proxies insuicide bombings in Israel and the Palestinian territories, and thefamilies of the 241 U.S. Marines who were killed when an Iraniangovernment agent rammed a truck full of explosives into theirbarracks 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 orknowledge of the Bush White House, is about to engage in whatobservers call "an act of unilateral disarmament" that will comfortstate sponsors of terror, especially Iran.
"We always knew the State Department was against these lawsuitsand tried to scuttle them from day one," a representative of a groupof victims' families tells Insight. "At every step of the way, theyintervened - whether to block efforts to discover where frozenIranian government assets were held, or how we could get themreleased once we found them on our own."
But in the opinion of congressional sources, the attorneys for thevictims and the family members themselves, the decision handed downby Judge Howard Edwards of the U.S. Court of Appeals for the Districtof Columbia on Jan. 16 is an act of judicial activism that violatesthe will of Congress and delivers an overwhelming victory toterrorist states. "By vacating the Flatow amendment pure and simple,the U.S. government is sending a crystal-clear message to theterrorists: Go right ahead," said one attorney who has followed thesecases for several years.
Pleading the case to repeal the law was Peter D. Keisler, anassistant attorney general in the Bush administration. He wasassisted by U.S. Attorney for the District of Columbia Roscoe C.Howard Jr. and Mark A. Clodfelter, a legal adviser to the secretaryof state.
"We ran this up the flagpole and went through the wholeinteragency process before sending our recommendation up to theSolicitor General's Office," an official involved in the litigationtells Insight. "The solicitor general approved our approach and setout the guidelines for our appeal."
If true, that would be astonishing. Barbara Olson, the wife ofU.S. Solicitor General Ted Olson, was among those killed during the9/11 attacks when American Airlines Flight 77 was crashed into thePentagon by al-Qaeda hijackers. As solicitor general, Ted Olsonvigorously has defended every aspect of the U.S. war on terror,including the USA PATRIOT Act and the government's right to detainillegal combatants for indefinite periods without access to counsel.When pressed about who had authorized their appeal, governmentattorneys interviewed by Insight declined to respond.
Lawyers from the State and Justice departments argued that the lawcrafted by Congress, and vetted by their own attorneys at the time,allowed victims of terrorism to sue in U.S. courts but not to seekdamages because the language provided "no private cause of actionagainst foreign governments." In response to questions from Insight,they insisted that the distinction was not just "splitting legalhairs." But attorneys who helped write the legislation contested thatview and revealed that State Department attorneys made last-minute"technical changes" to the bill that required victims of terrorism tosue "officials, employees and agents" of a foreign state, rather thanthe government itself.
"We had no objection to that change during the conference," one ofthe attorneys told Insight, "because they are one and the same thing.But what they are saying now is that Congress is a bunch ofincompetents who don't know how to draft legislation. We'll be backin a year's time with a much more muscular bill."
These are not lawsuits like any other. They involve U.S. foreignpolicy, national security and the rights of victims of murderouscrimes to seek redress under the law.
What makes the decision by Judge Edwards and the activeintervention of the State and Justice department lawyers particularlyodious, lawyers and family members of victims tell Insight, is thepotential cost in human lives it could entail. As President RonaldReagan was fond of saying, weakness or the perception of weaknessinvites attack.
The shabbiest treatment of all was reserved for the families ofthe 19 U.S. airmen and Air Force personnel who lost their lives whenIranian-backed Hezbollah terrorists drove a truck bomb into theKhobar Towers barracks in Dhahran, Saudi Arabia, in June 1996. Afterkeeping them waiting two weeks for their day in court, MagistrateJudge Deborah A. Robinson sent some 100 family members back to theirhomes around the country in mid-December after she single-handedlyattempted 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, tothe Joint Intelligence Committee about involvement of the Iraniangovernment in the Khobar Towers bombing and told Insight when hefirst appeared in Robinson's courtroom on Dec. 2, 2003, that heplanned to give the same testimony. But Robinson kept disappearingfrom her own courtroom for brief, unexplained recesses. When shereturned, she read out long lists of questions, apparently dictatedto her by others, that raised objections to Freeh's testimony and toevery other witness the victims' attorneys tried to call. A longtimeobserver of the court called Robinson's courtroom behavior"disingenuous" and "out of line" and "in violation of federal rulesof evidence."
To family members, Freeh had become a hero. "He was the only manin Washington during this whole thing who gave a damn," saidKatherine Adams, mother of U.S. Air Force Capt. Christopher Adams, apilot who had been taking another officer's tour of duty in SaudiArabia so he could stay home with his wife while she was having ababy. "He was the only man who kept his word to the families, whocared, who met with us. [President] Clinton never didanything, except to show up for a photo op," Katherine Adamssays.
When Robinson finally allowed the former FBI director to testifyto an empty courtroom on Dec. 18, Freeh got straight to the point."My own conclusion was that the [Khobar Towers] attack wasplanned, funded and sponsored by the senior leadership of thegovernment of Iran," he said. Freeh's breathtaking conclusion, andthe hard evidence of the Iranian government's role in the attack, iswidely seen as far more compelling than the evidence used by the Bushadministration to justify the war in Iraq. Making all evidence publiccould increase pressure on the administration to move militarilyagainst Iran, a step most observers agree the administration wouldprefer to avoid.
Robinson also took the unprecedented step in a terrorism case ofdisqualifying the most qualified nongovernmental witness on Iraniangovernment funding of terrorism, Patrick Clawson of the WashingtonInstitute of Near East Policy, in a written order handed down Jan.27. Clawson has testified in more than a half-dozen lawsuits againstthe government of Iran, providing hard data culled from Iraniangovernment reports on state budgets allocated to internationalterrorism. Robinson ordered that his testimony be "stricken in itsentirety" because Clawson would not reveal all the sources for hisexpert opinion on Iranian government sponsorship of terror. Clawsonwas unable to attend one hearing, an affidavit shows, because he wasscheduled for all-day briefings at CIA headquarters in McLean,Va.
Sources familiar with the U.S. government investigations tellInsight that Iran "supplied the explosives" for the 1998 al-Qaedabombings of U.S. embassies in Africa that killed more than 200persons, and designated top terrorist operative Imad Mugniyeh astheir liaison to Osama bin Laden's groups.
U.S. intelligence agencies consistently have argued that Irancould "not possibly" have a connection to al-Qaeda or to Sunni Muslimterrorist networks because Sunnis and Shias "do not talk to oneanother." And yet, a handful of intelligence analysts resisted thisconsensus view and compiled "B-Team" reports on al-Qaeda/Irancontacts for Deputy Secretary of Defense Paul Wolfowitz andUndersecretary of Defense Doug Feith. After an Oct. 26, 2001,briefing, Wolfowitz expressed astonishment that this information hadbeen kept from him, and he asked to be given more information as itbecame available. Instead, the Defense Intelligence Agency analystwho compiled the report, Kai Fallis, was fired by his superiors.
"What has been done is incredibly hypocritical," says StephenPerlis, a lawyer involved in a dozen similar cases, including theoriginal Flatow case. "They used the Flatow amendment to facilitaterapprochement with Libya by resolving the Pan Am 103 case, but nowthey want to destroy it when it applies to Iran."
As the war on terror progresses, the Bush administration isseeking to put pressure on hard-line clerics in Iran, deter their useof terror, stop weapons of mass destruction and encouragepro-democracy forces - at least, that is what the president says. Butthe message sent by the repeal of the Flatow amendment, and by therefusal of the State Department to back up the president's promise tosupport the pro-democracy movement in Iran, suggests a policy processthe president does not control, say former National Security Councilofficials.
Kenneth R. Timmerman is a senior writer forInsight magazine.
For more on this story, read"Defector Points Finger at Iran in September 11 Plot."
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Kenneth R. Timmerman is a senior writer for Insight magazine.
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